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On climate change and the ‘right to science’: The jurisprudential relevance and political significance of the URGENDA Foundation vs. Dutch State litigation

Climate litigation is on the rise worldwide. The database managed by the Sabin Centre for Climate Change Law of Columbia Law School shows that the number of documented cases – from judicial litigations and rulemaking petitions up to requests for reconsideration of regulations – has reached 1,350 in the U.S. and 7,249 abroad, including litigation before international adjudicative bodies (Climate Case Chart, 2021, online). 

This note focuses on the URGENDA Foundation vs. State of the Netherlands case, one of the most consequential litigations to date. As climate science progressed, it shaped both the arguments of the parties and the rationale of the judgment. URGENDA is a Dutch foundation committed to “stimulate and accelerate the transition processes to a more sustainable society”. In 2013, the foundation sued the Dutch government, then as today led by Prime Minister Marc Rutte, on behalf of 886 citizens challenging the targets for CO2 emissions set in the 2012 national climate policy (URGENDA, 2021, online).

In the 2012 national climate policy, the Netherlands aimed to reduce CO2 emissions by 17% below 1990 levels by 2020. URGENDA deemed the goal too modest, considering that scientific literature had already made it clear that it is necessary to reduce CO2 emissions by 25% to 40% to keep global temperature rise to within 2°C and avoid catastrophic effects of climate change (IPCC, Fourth Assessment Report, 2007). On 12 November 2012, URGENDA wrote the Prime Minister requesting the government to commit to a reduction of CO2 emissions in the Netherlands of 40% by 2020. Although the State Secretary for the Environment and Infrastructures agreed with the concerns of URGENDA, the government declined to commit to take any concrete action to revise the targets. The stage for litigation was set.

Plaintiffs sued first in the District Court of The Hague in 2013. Eventually, the court ordered the government to limit greenhouse gases emissions to 25% below 1990 levels by 2020, finding the government’s target of 17% insufficient to meet the state’s fair contribution toward the UN goal of keeping global temperature increases within 2°C (Het Rechtspraak, online). The court concluded that the state has a duty to take climate change mitigation measures due to the severity of the consequences of climate change and the great risk of climate change occurring. Of course, the court grounded its conclusions in the 2018 Dutch Constitution (Art. 21: “It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment”). However, it also cited in support of its holding a large range of international legal standards, including the European Convention on Human Rights (ECHR), the EU emissions reduction targets, the prevention principle embodied in the European climate policy, the “no harm” principle of international law, the doctrine of hazardous negligence, the principle of fairness, the precautionary principle, and the sustainability principle embodied in the UN Framework Convention on Climate Change. The court did not specify how the government should meet the reduction targets, but offered several suggestions, including emissions trading or tax measures.

The government appealed to The Hague Court of Appeal on thirty different grounds. Amongst those, it argued the inapplicability of Articles 2 (right to life) and 8 (right to private life, family life, home, and correspondence) of the ECHR in the proceedings and that the lower court decision was in essence an order to create legislation, in violation of the constitutionally-sanctioned separation of powers between branches of government. 

On 9 October 2018, The Hague Court of Appeal upheld the District Court’s ruling, concluding that by failing to reduce greenhouse gases emissions by at least 25% by end-2020, the Dutch government was in contravention of Articles 2 and 8 of the ECHR. The court affirmed its obligation to apply provisions with direct effect of treaties to which the Netherlands is party, including the Treaty on the Functioning of the European Union (TFEU) and the ECHR. It found that nothing in Article 193 of the TFUE prohibits a member state from taking more ambitious climate action than the EU as a whole. It also held that adaptation measures do not exempt the government from its duty to mitigate greenhouse gas emissions, and that the global nature of the climate change problem cannot excuse the Dutch government from action. The government appealed to the High Council of the Netherlands (i.e. the Supreme Court). Interestingly, both the Advocate General and the Procurator General issued a formal opinion recommending that the Supreme Court uphold the decision of The Hague Court of Appeal, which the Supreme Court did on 20 December 2019 (Het Rechtspraak, 2021, online).

The URGENDA litigation is the first instance of courts ordering a government to limit greenhouse gas emissions for reasons other than statutory mandates. The decisions, from the one of the District Court of The Hague to the one of the Supreme Court, provide a valuable summary of the state-of-art of climate change science at the time of the controversy. The courts recognized the robustness and legitimacy of the claims of URGENDA, both regarding the scientific evidence that grounded them and the ‘representation of the unrepresented’, the future generations that motivated its legal action. These two aspects of the decisions – namely, the articulation of the notion of ‘evidence’ in reference to the policy advice regarding CO2 emissions supported by climate scientists, and the admissibility of ‘future generations’ as unidentifiable but yet representable subject – will be key to interpret the growing body of jurisprudence that informs the political debate on climate change.

The URGENDA litigation is paramount for its jurisprudential relevance (de lege lata), and for its political significance (de lege ferenda). The jurisprudential relevance is the conclusion that the State, by virtue of its ‘duty of care’, has an obligation to act in the face of climate change, and the obligation to act is proportional to the threat. The political significance is that scientific knowledge can be used in the courtroom to determine what norms should be applied to the prevention of the climate change threat, particularly in the light of the relative unpredictability and analytical complexity of climate change. The decision of the District Court of The Hague could be applied by analogy to any other phenomenon whose anthropic causes and consequences for human and environmental health are known, measurable, and thus susceptible of regulation (e.g. air and water pollution, or to remain in the domain of man-made risks, the use, transport and stocking of hazardous substances). 

All in all, the URGENDA case signals that the body of policy recommendations accessible in scientific literature regarding preventing the catastrophic consequences of climate change has normative implications, and, as such, can be invoked in court by anyone who wants to use litigation to change the conduct of national and supranational governments. Although Article 15.b of the International Covenant on Economic, Social and Cultural Rights, the one protecting the right to science, was not invoked during the case, the URGENDA litigation highlights its importance. Unless everyone’s right “to enjoy the benefits of scientific progress and its applications”, and the underlying right of accessing scientific knowledge as any other primary good necessary for the democratic functioning of our societies, are guaranteed, there will be no more URGENDA cases. Only more CO2 emissions. 

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Image Credits: Urgenda Foundation