The networks of human rights and climate change: The State of the Netherlands v Stichting Urgenda,Supreme Court of the Netherlands,20 December 2019 (19/00135)

The Urgenda decision

Before the Dutch Supreme Court, the claimants based their case on the carefully constructed line of reasoning that (1) greenhouse gas emissions from the Netherlands are excessive (in relative and absolute terms); (2) that the Dutch government has an obligation under the ECHR to take due care to minimise risks to the enjoyment of right to life and respect for private and family life (Articles 2 and 8 of the ECHR, respectively); and (3) that in order to execute that obligation the government must implement more stringent emission reduction obligations than the ones already in place under Dutch law (aiming at a 20 per cent reduction in emissions by 2020 compared to the 1990 baseline).

In response to the decision on appeal from the Court of Appeal, which had found that the government had failed in discharging its Articles 2 and 8 obligations by not committing to emission reduction obligations aiming at least at a 25 per cent reduction, the Dutch government sought to rebut the relevance of the ECHR. First, the government argued that the lower court had failed to take into account the margin of appreciation developed by the ECtHR (a doctrine often deployed in environmental cases). Second, the government argued that the joint application of the lower court of Articles 2 and 8 alongside each other was an insufficient base on which to furnish individual obligations as the Convention does not as such confer standing on organisations seeking vindication of individual rights on the behalf of a wider public interests. Finally, the government contended that even where Articles 2 and 8 obligations are triggered, a 25 per cent reduction in emissions does not follow as a matter of law but is in fact a political consideration.

In its decision, the Supreme Court not surprisingly held that climate change poses serious risks for current and future generations, threatening loss of life and disruption of family life. Obvious as this might seem, this finding is central for the application of the ECHR and the obligations derived from Articles 2 and 8. The reason for this, as the Court lays out in its assessment of the ECtHR’s case law, ¹¹ is that the ECtHR has held that where serious environmental risks arise, the ECHR mandates that governments take specific regulatory steps to minimise those risks. ¹² It is now well-established that particular environmental harms and environmental risks that might trigger the application of the Convention include risks from industrial emissions, ¹³ noise pollution, ¹⁴ waste pollution, ¹⁵ as well as risks and harms arising from natural disasters such as flash-flooding and mudslides. ¹⁶ In this light, the Dutch Supreme Court had little hesitation in finding that the obligations arising from this case law apply in the context of climate change risks.

With the Supreme Court taking the seemingly straightforward – even if slightly novel – step to apply the ECHR environmental obligations to climate change, the Court was still left with a lot of heavy lifting in terms of translating this into an obligation of specific emission reduction obligations. The main challenge in trying to make this interpretive leap stems primarily from the fact that the case law developed by the ECtHR gives rise to few concrete standards beyond a general due diligence obligation centring around the need to put in place regulatory and administrative regimes, providing for meaningful public participation and the access to independent mechanisms of oversight. ¹⁷ The Supreme Court responded to this challenge by taking inspiration (in part) from the ECtHR’s willingness to look beyond the ECHR itself, towards other international sources of norms and rules, when developing its environmental rights case law. ¹⁸ The Dutch Supreme Court thus found support for a more ambitious emission reduction programme in the many meetings and resolutions adopted by succeeding COPs to the UNFCCC and assessment reports adopted among others by the Intergovernmental Panel on Climate Change. ¹⁹ This body of work was, by the Supreme Court, seen as constituting a ‘common ground’ and international consensus of norms and aspirations, even if not legally binding in law, which provides an interpretive and persuasive background for the barebone legal obligations of Articles 2 and 8. ²⁰ This ‘common ground’ is likewise a basis recognised and referred to by the ECtHR in its own case law and has from time to time been used to develop specific obligations in respect to environmental impact assessments and public participation requirements. ²¹ On the back of this, the Supreme Court found that the increased 25 per cent emission reduction sought by Urgenda constituted an ‘absolute minimum’ target necessary to implement the obligations of Articles 2 and 8.

Analysis

A couple of initial points ought to be made before scrutinising the potentially important decision by the Dutch Supreme Court. The comments below are based on the unofficial translation provided by the Dutch judiciary, which is publicly available but not an authentic text. ²² In these circumstances, it cannot be ruled out that certain important nuances are lost. For example, in its discussion around the ECtHR’s environmental case law, the text of the judgment unhelpfully refers varyingly to ‘real and imminent’ threats and risks as well as ‘genuine’ and ‘serious’ risks without necessarily considering in detail if these different typologies necessitate different legal responses. ²³ It is for those reasons that this note limits itself to focusing on the relationship between human rights and climate change in the context of the ECHR rather than the on no doubt equally important matters of Dutch law.

The first point to make specifically in respect to the ECtHR’s environmental jurisprudence is that the Urgenda decision adds very little to the doctrinal points of law developed over three decades by the ECtHR itself. The interpretation of the ECtHR’s environmental case law by the Supreme Court comes across as entirely reasonable in respect to identifying the main legal obligations and doctrines emerging from the case law. The standout feature of the Supreme Court’s decision is the application of the ECtHR doctrine in the context of Dutch law and the results flowing from this. For example, the Dutch government was right to point out in its submission to the Court that an organisation like Urgenda would not have standing before the ECtHR to question government inaction allegedly putting large groups of citizens under serious risk of harm. Under the Convention, standing is only afforded to victims of Convention violations, which does not ordinarily entail actio popularis claims like the present one. The response to this is perhaps not surprisingly that for the purposes of domestic law in the present case, it does not really matter whether the claimant has standing before the ECtHR or not. What matters is whether the claimant has standing in domestic law.

Related to this is the engagement of the Dutch Supreme Court with the claim advanced by the Dutch government that the margin of appreciation precludes the Court from scrutinising too closely the specific plans for emission reduction. Had the Dutch government found itself before the ECtHR, its claim to a higher degree of deference would very likely have been more successful than it turned out to be before the Dutch Supreme Court. This simply follows from the fact that the ECtHR regularly emphasises that while its function is to oversee compliance with the Convention by the contracting parties, it acts as an international tribunal whose jurisdiction remains supervisory and consequently somewhat removed from the detailed decision-making of the domestic jurisdiction. In short, an international court like the ECtHR is likely to afford governments a larger degree of discretion (or margin of appreciation) than a domestic court. Although this need not be the case in every jurisdiction, the Dutch Supreme Court evidently did not see itself as being tied down by the doctrine of the margin of appreciation as developed by the ECtHR. In one sense, why should it? There is not necessarily any reason to assume that a doctrine developed by an international court, in the context of adjudicating on an international human rights treaty, in an attempt to restrain itself from veering into areas that it might not be well-placed to adjudicate on, ought to confine the adjudicatory scope available to a domestic court. Each court, in its role and perception of itself as a tribunal and adjudicator, be it the ECtHR or a domestic Supreme Court, necessarily operates within the confines of the legal context, power balances, institutional responsibilities and functions of whatever legal culture it finds itself in. ²⁴

This theme of adjudicatory contingency exerts a strong influence throughout the Supreme Court’s decision. For example, in its discussion on the uncertainty around what types of climate change risks might ultimately materialise, the Supreme Court draws support from the sparse case law from the ECtHR on the precautionary principle when finding that Articles 2 and 8 apply to risks even where there is no certainty (assuming that is epistemologically possible). ²⁵ One potential limitation of this line of argument in the context of the ECHR case law is that the relevance of the precautionary principle in ascertaining the scope of the specific Convention obligations is far from clear. As noted, the ECtHR case law on the principle is sparse – so far the ECtHR has relied on the principle in only the one case of Tătar v Romania. ²⁶ In this case, the principle was referred to as being among a range of material considerations that the ECtHR might come to rely on by nature of the principle’s widespread use in international and European environmental law. Since the Tătar decision, however, the Court has not explicated the relevance of the principle nor has it developed further its case law on the principle when invited to do so by claimants. ²⁷ On this reading, the reliance on the principle by the Dutch Supreme Court might come across as a bit of stretch; the Supreme Court is arguably overplaying the significance of the principle in the context of the ECHR. Conversely, the reliance on the principle by the Supreme Court might simply rest on the not unreasonable interpretation that for the purposes of the present claim, adding a precautionary emphasis to the obligations of Articles 2 and 8 as they play out in the domestic context, is simply a result of the interpretive dynamic that develops when a domestic court applies international doctrines. On this reading, the ECtHR’s case law, de minimis as it is, mainly serves as a baseline or floor on which domestic courts (and legislatures) can add interpretive finesse and more clear-cut obligations.

Ultimately, these points highlight the emerging and potentially fruitful interplay between international environmental rights doctrines and domestic adjudication. One central feature of the ECtHR case law on environmental rights is that it has served the significant purpose of providing certain claimants with an important and sympathetic forum of adjudication (and remedies) where these might not have been readily forthcoming in the domestic context. A significant number of environmental cases before the ECtHR thus relate to the situation where claimants plead with the court to enforce domestic environmental standards, rules and judgments where these have been ignored by the responding state party. Whether this feature is seen as bringing out an element of the rule of law or whether it is seen as a form of additional judicial supervision and enforcement, providing much-needed environmental justice for individuals bearing a disproportionate burden of environmental risks, a clear dynamic in the ECtHR’s environmental case law has been the Court’s ability to provide a minimum safeguard of environmental protection. ²⁸ This line of reasoning ultimately goes to the conceptual point that, at core, the enjoyment of basic environmental conditions constitute a basis for the enjoyment of fundamental human rights.

In contrast to this, the dynamic in Urgenda is different. In Urgenda, the dynamic is arguably more traditional if not equally important. As noted above, the Dutch Supreme Court relies on the ECtHR’s case law as a base on which to furnish domestic legal obligations that the ECtHR itself would very likely not have been able to distil from its own case law. On this reading, the significance of the ECtHR’s environmental rights case law takes on a new but equally important role. The significance stems from the relevance of the ECtHR environmental rights case law in the context of a contracting party like the Netherlands where a detailed regulatory regime for dealing with climate change is already in place. Up to this point, the main relevance of the ECtHR’s environmental case law has arguably been, as noted, to provide an additional layer of enforcement where domestic legal regimes are evidently inadequate if not lacking entirely. In response to this, the ECtHR provides for what is in all but name an environmental rights regime based on traditional international due diligence obligations. This function has partly expressed itself in the fact that the contracting parties most likely to be found to have violated this obligation are, generally speaking, states with the unenviable challenge of having to strike a domestic balance between rapid economic development and dealing with historical legacies of severe industrial pollution and lack of robust legal regimes of environmental regulation and governance. ²⁹ A not insignificant number of successful environmental claims before the ECtHR have been brought against former Soviet Union states that, for various and obvious reasons, have struggled to rapidly upgrade domestic systems of environmental governance and law. ³⁰

Against this, the application of the ECtHR’s environmental rights case law in Urgenda serves a different purpose. Instead of providing a doctrine, which can fill gaps in domestic legal systems, the environmental rights case law from the ECtHR is in Urgenda used as a basis upon which to strengthen already elaborate regimes of environmental law. One important significance of this is that such strengthening is, as noted, highly unlikely to take place before the ECtHR itself simply by virtue of the self-imposed restrictions the ECtHR has put on its own doctrine and jurisdiction, however reasonable and justifiable these restrictions may be. A consequence of this is that the baseline environmental rights doctrine provided by the ECtHR serves in certain contexts to provide not only a much-needed international outlet for the claimant who has little recourse in the domestic contexts but also as a basis upon which claimants are able to persuade courts in domestic legal settings of the need to closely scrutinise aspects of domestic law even where these are unlikely to have been successful before the ECtHR itself.

Overall, the dynamic which emerges here in respect to the ECtHR’s environmental rights jurisprudence arguably takes on the form of a network. A network in which the different units of domestic courts, contracting state parties and the ECtHR itself operate through a set of interconnections between particular localities; an ‘apparatus, where commands can come from multiple sources, and where units are potentially autonomous and semi-autonomous’ in developing the detailed legal rules subject to the supervisory oversight of the ECtHR. ³¹ A feature of the network model as it plays out in the present human rights and climate change context is that it is not as such defined by traditional notions of hierarchy, precedent and authority otherwise prevalent in adjudicatory systems. In the present network model, there is strictly speaking no obligation in precedence on the Dutch Supreme Court to develop and add to the minimum obligations emanating from the ECtHR case law (at least as far as the ECHR goes). The network feature is also at play in the case law from the ECtHR itself where the Court over the years has relied extensively on legal developments in international environmental law and EU environmental law in the attempt to define its own case law. ³² Similarly, the network is present in some of the decisions referred to above, including the advisory opinion of the Inter-American Court of Human Rights, where in the absence of any significant environmental rights cases in its own case law, the Inter-American Court ended up referring extensively to the many decisions of the ECtHR. ³³ While reliance on judicial decisions extrinsic to a particular court’s jurisdiction is nothing new, the recent examples of it playing out so richly in the context of environmental rights suggest that this particular area of law is likely to remain a highly fertile ground for future litigation across domestic jurisdictions and international tribunals. In here lays the potential significance of the Urgenda decision: while it creates no legal precedents outside the confines of Dutch law (and even there its actual impact may well prove to be minimal), it has highlighted the potential of the environmental rights case law from the ECtHR to function as a base on which domestic legal obligations can be furthered. Of course, the willingness of courts in other jurisdictions to follow the Dutch example and use the ECtHR’s case law as a springboard for scrutinising domestic obligations will no doubt vary significantly.

In the context of the UK, it cannot necessarily be assumed that a UK court would make the same findings even if particular areas of law might seem ripe for claims based in the environmental rights doctrine of the ECtHR (e.g. the repeated failure of the UK government to comply with the Air Quality Standards Regulations 2010). ³⁴ There are two reasons for this. First, in the UK, courts have been less inclined to engage with the environmental human rights argument as providing a discrete basis for scrutinising government decisions. A recent example akin the Urgenda claim is found in the challenge by the Plan B group to the failure of the Secretary of State to amend the emission reduction target of the Climate Change Act 2008 (which has subsequently been amended), relying among other points on the argument that the failure to do so would violate the claimant’s human rights under Articles 2 and 8. ³⁵ Giving short shrift to the argument, Justice Supperstone asserted that ‘this is an area where the executive has a wide discretion’, echoing the spirit of the margin of appreciation as applied by the ECtHR itself. ³⁶ Second, were a UK court to divert from this conservative approach, it cannot be assumed that it would necessarily go as far as the Dutch Supreme Court in finding that the application of Articles 2 and 8 necessarily entails the concrete emission reduction obligations that it did in Urgenda. This stems from the fact that UK courts traditionally defer to government agencies and administrative decision-makers when it comes to environmental claims. ³⁷ In this regard, UK courts strike a line closer to that of the ECtHR itself when the ECtHR in its environmental case law repeatedly stresses the margin of appreciation and the point that its jurisdiction remains largely supervisory. The potential of the ECtHR’s environmental case law to spur further climate change litigation (and to develop the adjudicatory network identified here) has obvious limitations. Ultimately, these limitations reflect the dynamics of the adjudicatory systems in which climate change and environmental rights adjudication plays out.