Consciously transnational: Urgenda and the shape of climate change litigation: The State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Urgenda Foundation

Introduction

The State of Netherlands v Urgenda Foundation requires very little introduction. ¹ With a media strategy as sophisticated as their case strategy, the fate of the Urgenda Foundation’s claim in the Supreme Court was hotly anticipated around the world. Global excitement about the decision was ignited by the publication of the first decision of the Hague District Court, ² (a court whose judgments do not routinely attract worldwide media attention) coming as it did in the run up to the 2015 Paris COP. ³ Conscious of the impact of their decision, the District Court provided a near simultaneous translation of the judgment into English facilitating global scrutiny and celebration. ⁴ It is hardly surprising therefore that the Supreme Court decision in the final appeal of State of Netherlands v Urgenda was awaited with baited breath, and for those invested in the ever-growing body of global climate change jurisprudence, it did not disappoint. The Supreme Court upheld both the original order of the District Court and fortified the human rights approach to climate change of the Court of Appeal, thus requiring the State of Netherlands to reduce their emissions by 25 per cent from 1990 levels.

Riding the wave of the ‘rights turn’ in climate change litigation, ⁵ the Supreme Court confirmed that the failure of the Dutch government to act to reduce climate change by at least 25 per cent amounted to a failure to protect Articles 2 and 8 of the ECHR of Dutch citizens. Using international climate commitments and scientific consensus, the Supreme Court brought shape and substance to the human rights duties generated by these articles. In so doing, they reiterated the necessity and legal validity of the original order to reduce emissions. In a recent edition of the Environmental Law Review, Ole W. Pedersen examined the interplay between the Supreme Court's rights approach and the environmental rights jurisprudence of the ECHR, I therefore leave the detailed analysis of the human rights dimensions of Urgenda to Pedersen's excellent note. ⁶ For the purposes of this case note, I instead use the closure of the Urgenda litigation to reflect on the transnational dimensions of this decision.

Moving the focus of climate change litigation from a largely US arena to a global one, Urgenda has helped to foster a burgeoning transnational climate justice jurisprudence, both vertically in the sense that domestic courts are increasingly being used as sites to solidify international commitments and horizontally as these domestic endeavours are helping to shape the jurisprudence of other states whose courts are increasingly asked to adjudicate on climate change commitments. ⁷ What is more, courts are conscious of this effect, thus this emerging jurisprudence is not simply an unintended consequence of the localisation of global commitments but is becoming an explicit practice on the part of domestic courts. ⁸

This consciously transnational jurisprudence manifests in four overlapping ways that can be seen throughout the Urgenda litigation. First, international commitments, both legal and scientific, are being translated into national obligations which in turns facilitates effective judicial enforcement of those commitments. Second, individual national responses are helping to shape how climate responses develop in other jurisdictions. This judicial cooperation is reinforced by the third path for transnationalisation, the shift from a reliance on domestic legal duties, which are limited to a particular legal culture, to more universal ones that are based on human rights commitments. Fourth and finally, there is a growing recognition of the global justice implications of climate change, thus this emerging transnational jurisprudence is underpinned with climate justice undertones. Before unpacking these elements of this consciously transnational climate change jurisprudence in the fourth section, I will recap the Urgenda story thus far (the second section) and examine the significant features of the Supreme Court decision (the third section), paving the way for me to elaborate further on what I mean when I describe the Urgenda litigation as shaping a growing body of consciously transnational climate change jurisprudence.

The Urgenda story

The story of the Urgenda case began in 2013, when the NGO brought a claim on behalf of itself and 886 Dutch citizens against the Dutch government, to compel the government to reduce Dutch emissions by 25–40 per cent compared to 1990 by 2020. It was the first judgment against a nation state for their failure to respond adequately to climate change that was not grounded in a statutory mandate. ⁹ Instead their claim was based on a general duty of care owed to Dutch citizens by the state. According to Urgenda, this duty had several overlapping foundations: Dutch constitutional law (Article 21 of the Dutch Constitution); European human rights (Articles 2 and 8 of the ECHR); European law (Article 191 Treaty of the Function of the EU); international law (no harm principle and international climate change law) and in tort (under the general duty of care in the Dutch Civil Code Article 126 Book 6). The Hague District Court rejected all but the claim in tort. In terms of the Constitutional duty, relating to the habitability of the country, the Court concluded that international commitments (i.e. those arising from UNFCCC and the Kyoto protocol) did not generate legally binding obligations that could shape the constitutional duty of care under Article 21. And as for the human rights claim, the District Court ruled that because Urgenda was an NGO they could not be direct or indirect victims within the meaning of Article 34 ECHR. ¹⁰ Accordingly, they were not capable of supporting a human rights claim.

The District Court did, however, maintain the civil claim that the failure of the government to address climate change amounted to a breach of its duty to Dutch citizens to prevent hazardous state negligence. Although neither the European nor international law commitments were regarded as directly enforceable in this matter, they were both used as a ‘source of inspiration’ ¹¹ to help contour the tortious duty, setting the standard of care that was expected of the Dutch government. ¹² The District Court decision was of course remarkable, for the first time a nation state was being held to account for its non-statutory commitments on climate change and the global attention it received was inevitable. However, because of its basis in the peculiarities of the Dutch civil code there was something parochial about the decision. ¹³ A remarkable decision, but not exactly replicable, bound as it was to Dutch legal culture. ¹⁴

Further, there was serious speculation that the District Court’s decision was a fluke, the maverick decision of a lower court that would soon be remedied by the Court of Appeal who would be more resistant to the seductive powers of Urgenda’s argument. ¹⁵ The particular disturbance at the heart of the District Courts decision was the question of constitutional balance. ¹⁶ Those critical of the District Court argued that the court went too far in ordering the 25 per cent reduction, overstepping their appropriate constitutional role. For example, Dutch scholars K. J. de Graad and J. H. Janes suggested that as a matter of Dutch Law the District Court should have limited themselves to a declaratory decision because there was a risk that the order could be perceived as an unconstitutional order to legislate. ¹⁷ On this basis, Graad and Janes predicted that the order was unlikely to ‘survive an appeal’. ¹⁸

Such predictions proved erroneous and, instead, the Court of Appeal upheld the District Courts order, going one step further by establishing the duty of care on the previously reject human rights ground. The appeal by the government enabled Urgenda to cross-appeal and thus reargue the human rights elements of the claim. Urgenda argued that Article 34 of the ECHR, which limits standing in the ECrtHR to individuals, excluding claims by interest groups, only applied to that Court and not the Dutch courts. ¹⁹ Indeed, the Dutch Civil Code permitted public interest claims, which this was, under Book 3 Section 305a. Having thus established their standing in the Dutch court, Urgenda asserted that as the ECHR has direct effect in Dutch law, Urgenda could found a claim on Articles 2 and 8 in a Dutch court, even if the same would not have been possible in the ECrtHR. ²⁰ The Court of Appeal were persuaded and Urgenda was deemed to have sufficient interest to pursue the claim as they were representing the current generations of Dutch residents. ²¹ Building on the growing body of ECrtHR environmental rights jurisprudence, ²² the Court of Appeal accepted that given the real threat of dangerous climate change, the State had a positive obligation to protect the lives and home lives of citizens within its jurisdiction under Articles 2 and 8 of the ECHR. On this basis, they upheld the District Court’s order of a 25 per cent reduction by 2020.

The Supreme Court

Unsurprisingly, the Dutch government objected to the Court of Appeal’s decision. The constitutional question of whether the order to reduce emissions by 25 per cent amounted to an unlawful order to legislate was not laid to bed, and they were unconvinced by the strengthened human rights basis of the duty of care. Accordingly, the Dutch government appealed in cassation before the Supreme Court seeking to overturn the order. ²³ However, their, by now well-rehearsed arguments, fell on unsympathetic ears. The Supreme Court, agreeing with the Advisory Opinion of the Procurator General and Advocate General, dismissed their appeal, maintaining the human rights duty of the Dutch government in respect of climate change and upholding the order for the 25 per cent reduction.

In support of their appeal, the government introduced nine grounds for cassation, which were grouped into four related claims by the Supreme Court. In the first place, they said that Articles 2 and 8 were wrongly interpreted by the Court of Appeal and could not give rise to the kind of protection they had established (Grounds 1–2). ²⁴ Second, they argued that Urgenda should not have been granted standing to peruse the human rights claims, as human rights were intended to offer individual and not collective protection (Ground 3). ²⁵ Third, they asserted that they were not bound by the 25 per cent reduction target, such targets were a matter of state discretion and thus only they were entitled to determine the appropriate reduction percentage (Grounds 4–8). ²⁶ Finally, they claimed that the order to reduce emissions was ‘tantamount’ to a constitutionally ‘impermissible’ order to create legislation and should thus be quashed (Ground 9). ²⁷

Prior to the Court issuing their judgment, the Procurator General of the Supreme Court of the Netherlands and the Advocate General produced a lengthy Advisory Opinion, advising the Supreme Court to uphold the decision of the Court of Appeal. The Advisory Opinion provides a detailed summary of the case history, the scientific evidence agreed upon by both parties and extensive explanation of the relevant legal principles. The Supreme Court followed this advice, rejecting the government’s appeal and affirming the decision of the Court of Appeal.

The most significant feature of Supreme Court decision is that it augments and strengthens the Court of Appeal’s conclusion about the relevance of Articles 2 and 8 in the relation to the State’s obligation to adequately respond to the problem of climate change. Critically, the Supreme Court asserts for itself a distinctive role in adjudicating collective human rights claims, based on the Dutch rules of standing under Article 3:305a DCC, rather than the more restrictive approach of Article 34 of ECHR. Thus, domestic courts, rather than ECrtHR, are positioned at the vanguard of developing human rights jurisprudence based on collective climate claims.

Building on the ECHR jurisprudence on human rights and the environment, the Supreme Court showed that Articles 2 and 8 are capable of responding to the consequences of climate change. In respect of Article 2, the Supreme Court recognised that climate change presents a ‘real and immediate risk’, in the sense that the risk it generates is ‘directly threatening to the persons involved’. ²⁸ Thus immediacy was not reduced to imminence, and risks that might only materialise in the long term could be considered as part of the danger that the State has an obligation to guard against. Similarly, in relation to Article 8, the Supreme Court found that Article 8 ‘encompasses a positive obligation to…protect individuals against possible serious damage to their environment’ which is not limited to short-term risks. ²⁹ On this twin basis, the Supreme Court found that ‘no other conclusion can be drawn but that the State is required pursuant to Articles 2 and 8 ECHR to take measures to counter the genuine threat of dangerous climate change’.

Having found that the state did owe a duty in human rights based on the threat of climate change, the Supreme Court turned to assessing what action was needed on the part of the Dutch government to fulfil their duty to their citizens. To do this, the Supreme Court looked to the international consensus on necessary action of an Annex 1 state like the Netherlands, recognising that the ECHR ‘cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law’. ³⁰ Thus the broader international law framework relating to climate change was deemed essential for interpreting the duty of care that was generated by Articles 2 and 8.

Surveying the activity of the IPCC and the international climate change framework, the Supreme Court found that there was a ‘high degree of consensus’ dating back to 2007 that a reduction of 25–40 per cent by 2020 for an Annex 1 country such as the Netherlands was necessary to reach the two-degree target. ³¹ Turning then to whether this target applied to the Netherlands individually, rather than simply to Annex 1 countries as a block, the Supreme Court found that the State had failed to explain why, given the international consensus and the importance of the precautionary principle, their proposed target of a 20 per cent reduction could be ‘considered responsible’. ³² Although the Supreme Court maintained that the international consensus did not amount to a directly enforceable legal standard, it did confirm that a reduction of at least 25 per cent was ‘needed to prevent dangerous climate change’. ³³ Thus to achieve the ‘proper legal protection’ of Articles 2 and 8, the State had an obligation to meet the 25 per cent reduction target as ‘an absolute minimum’. ³⁴ In this way, the international consensus on the necessary reduction target was used to set the standard of care necessary for the Dutch government to fulfil their human rights obligations to their citizens.

Underscoring their entire analysis of the human rights obligations of the Dutch state in relation to climate change is a robust explanation of the appropriate role of the court within the Dutch constitutional settlement. For example, early on in their decision, the Supreme Court explains that Article 13 ECHR provides for the right to an effective remedy before a national authority to compel the observance of human rights, a remedy which the court is under an obligation to supply. ³⁵ However, in closing, the Supreme Court confront head on the constitutional tension that is at the heart of this litigation. Returning to the importance of effective legal protection, the Supreme Court explained that where the ‘government is obliged to do something, it may be ordered to do so by the courts’. ³⁶ Having established the existence of a legal obligation on the part of the State, by way of Articles 2 and 8, the Supreme Court thus conclude it would be constitutional neglect for them not to act. ³⁷ In so doing, they underscored the necessity and validity of the order to reduce emissions by 25 per cent.

An emerging transnational jurisprudence

Concluding their collection of essays showcasing the state of play of transnational environmental law, Veerle Heyvaert and Leslie-Anne Duvic-Paoli explain that ‘climate change law is a field where the need for and value added of transnational framings has been particularly vividly demonstrated’. ³⁸ This is especially so in relation to growing body of climate change adjudication where there is a collision of domestic judicial practice and international standard setting. Domestic courts have thus ‘become major proponents and architects of…a new and emergent body of transnational environmental jurisprudence’. ³⁹ Urgenda is emblematic of this emergent body and has been instrumental in helping to shape it. I therefore adopt a transnational frame in analysing Urgenda to reflect on the ways in which ‘international and national environmental law have become increasingly intertwined’. ⁴⁰ Alongside this vertical transnationalisation, I also reflect on the role that Urgenda has played in developing a horizontal plane of influence whereby individual domestic responses to the problem of climate change are starting to cross-fertilise to produce a robust, transnational jurisprudence on state responsibility to respond to climate change. ⁴¹

Prior to the Urgenda decision, the primary focus of climate change litigation scholarship was on decisions from the USA, for example the pivotal Massachusetts v EPA ⁴² and to a lesser extent, Australia. ⁴³ After the Urgenda decision, the focus grew wider and attention was drawn to climate change jurisprudence from internationally less well studied jurisdictions, like Pakistan or Sweden. The shift of global attention thus moved from a common law, Australian-American focus to a more consciously transnational one. This was both on the part of the scholars, who began to make a very concerted effort to study the global dimensions of climate change jurisprudence, ⁴⁴ with more cases coming within ‘the sweep of climate change litigation’. ⁴⁵ This conscious transnationalism can also be noted on the part of those involved in the production of climate change judgements, both in terms of their approach to adjudication and, as Geetanjali Gamguly points out, in terms of the increased activity of transnational judicial networks centring around environmental legal questions. ⁴⁶

In the Supreme Court decision closing the Urgenda story, and in the accompanying Advisory Opinion, we see some of the hallmarks of this emerging jurisprudence. First, international commitments were used to shape domestic obligations. ⁴⁷ Second, there is an awareness that the decision is likely to exert an influence in other jurisdictions. Third, there is a shift to human rights, a transnationally mobile legal device, as a tool to motivate government action on climate change. Fourth, there is a recognition of the climate justice implications of the decision, leading to the development of a body of transnational climate jurisprudence. In closing this case note, I reflect on each of these dimensions in turn.

The first way in which this transnational jurisprudence has emerged is through the translation of international commitments, both legal and scientific, into domestic duties which in turn facilitate effective judicial enforcement of them. ⁴⁸ This was first evident in the way that the District Court used international law and European human rights to help craft the civil law duty of hazardous state negligence. And it is also evident in the importance that the Supreme Court attached to the ‘international consensus’ on what the appropriate reduction target for an Annex 1 country like The Netherlands was. ⁴⁹ As Maria Lee explains ‘Urgenda is a striking case of the courts borrowing the epistemic authority of external norms’. ⁵⁰ Urgenda thus helped to give legal force to the scientific claims of the IPCC and the international consensus surrounding them. This co-mingling of international commitments and domestic duties to develop legally binding standards of care in relation to climate change is a key component of this transnational climate change jurisprudence. Assessing the appropriate standard of care, in relation to climate change, is therefore no longer a purely domestic question, but one that requires a global outlook. ⁵¹ Indeed, Gangualy identified the legal recognition of IPCC standards through domestic adjudication as a central feature of what she describes as ‘judicial transnationalisation’. ⁵²

By translating these global commitments into domestic duties, courts are then able to provide effective domestic remedies in respect of international commitments. One of the most controversial aspect of the Urgenda decision was that the District Court had the audacity to issue an order requiring the government to reduce its emissions by a set amount (25 per cent) by a set date (2020). The decision to issue an order rather than simply offer a declaratory judgment threatened to unsettle the proper constitutional balance between the court and the state. ⁵³ However, in upholding the order of the District Court, the Supreme Court gives domestic force to the international consensus on what needs to be done to adequately respond to climate change, thus enabling this transnational jurisprudence to have a concrete influence. Indeed, as a result of the order, the Dutch government has recently announced a package of measures that include reducing the capacity of the country’s coal-fired power stations by 75 per cent and providing around €400 m for household energy-saving measures like double glazing. ⁵⁴ International consensus on appropriate conduct thus translates into tangible, legally enforceable commitments through this process of transnationalisation.

Second, this emerging transnational jurisprudence has horizontal as well as vertical dimensions as courts are expressly looking to the jurisprudence of other national courts for wisdom on how to adapt domestic legal doctrine to the pressures of climate change. ⁵⁵ Ganguly, for example, explains that national treatment of international commitments has ‘had a profoundly mimetic transnational impact, serving to inspire recent waves of climate litigation around the world’. ⁵⁶ As a consequence of this copycat litigation, courts are looking across borders for inspiration on how to respond to the often novel arguments introduced by climate change litigants. Judicial borrowing in relation to complex social problems is by no means novel ⁵⁷ – faced with the profound legal and social problems caused by the widespread use of asbestos, for example, Lord Bingham surveyed jurisprudence from Australia, the USA, Canada, France, Germany and Holland to help develop his thinking on how causation should adapt to accommodate the scientific complexities of asbestos exposure. ⁵⁸

Climate change is the profound social problem of our times, disrupting and moulding legal doctrine and legal practice. ⁵⁹ It is understandable, therefore, that those involved in the production of climate change decisions wish to learn from how their sister and brother judges have dealt with the problem regardless of jurisdictional contexts. ⁶⁰ Unlike previous instances of judicial borrowing, however, there is something consciously transnational about how decisions are produced in this context. For example, in the Advisory Opinion, the Advocate General offers a quick primer on the Dutch rules of legal procedure ‘for the benefit of non-Dutch readers’. ⁶¹ Thus there is explicit recognition that the decision will have significance beyond the jurisdiction.

Contributing to this horizontal jurisprudential pollination is the third aspect of this emerging jurisprudence – the shift from specific domestic duties (whether they be statutory or general) to a rights-based approach. Whereas domestic duties are peculiar to their respective legal cultures, human rights have a universal quality, whereby the human rights approach of a court in Pakistan can help inform the human rights approach of a Dutch one. ⁶² Domestic jurisprudence on fleshing out the rights implications of climate change can thus have transnational significance. Indeed, the Supreme Court’s decision is likely to influence how other members states in the ECHR legal order respond to rights-based arguments in climate cases, given that they were the first member of the ECHR to offer a climate rights gloss to the ECrtHR environmental rights jurisprudence.

Beyond Europe, the shift to a human rights basis for climate change litigation is part of the emergence of the more ‘elusive’ phenomenon of human rights-based climate claims. ⁶³ Osofsky and Peel note that this shift to rights-based claims ‘is likely to encourage similar cases in other jurisdictions’. ⁶⁴ Human rights are necessarily more ‘contagious’ than private law or statutory duties which are bound to a particular legal culture or domestic legal framework. ⁶⁵ Thus, in shifting the focus from the tortious duty to the human rights one, the Dutch appeal courts tapped into the deepening seam of rights-based climate change jurisprudence. In so doing, they helped to shape the direction of transnational climate change jurisprudence.

Underpinning the first three aspects of this emerging transnational climate jurisprudence is its final dimension – the recognition that an adequate domestic response to climate change is a matter of transnational justice. Not all states have contributed equally to the climate catastrophe and therefore Annex 1 states, like the Netherlands, have a heightened responsibility to respond to the international consensus on appropriate action. As the Court of Appeal noted:

the signing and ratification of the UN Climate Convention by the Netherlands should not be a mere formality. For reasons of equity, the Convention stipulates that the developed countries should take the lead. ⁶⁶

Throughout the history of the Urgenda decision, the Dutch government was at pains to emphasise how small the Netherlands is and thus how negligible their contribution to global emissions is. While the Supreme Court acknowledges this to be the case, they are nevertheless unsympathetic to the argument making clear that ‘the Netherlands is obliged to do “its part” to prevent dangerous climate change, even if it is global problem’. ⁶⁷ Further, as both the Supreme Court and the Court of Appeal point out, the Netherlands is one of the countries with the very highest per capita emission of greenhouse gases and that this high percentage generates a corresponding duty to substantially reduce those emissions. ⁶⁸ Therefore, the appropriate response for the Dutch state to the problem of climate change is assessed on a comparative basis, thereby recognising the transnational justice implications of climate change litigation.

In these four related and overlapping ways, it is possible to see that Urgenda has played a significant role in helping to shape the emerging body of transnational climate change jurisprudence. It is of course not the only instrumental case: Massachusetts v EPA played an important role in endorsing and legitimising IPCC assessments on the impact of climate change; ⁶⁹ and Leghari v Federation of Pakistan lead the rights turn in climate change litigation. ⁷⁰ Nevertheless, the global impact that Urgenda has had in inspiring other climate change claims and in shaping the direction of that jurisprudence is undeniable.

Conclusion

The Urgenda jurisprudence is rich and there are many aspects of these decisions that require further interrogation – the development of a jurisprudence of climate-focused human rights, the role of complex science in developing legal standards and the constitutional implications of judicial measures that direct government action on climate change. My focus on how a decision from a self-confessed ‘minor contributor’ has had such a significant global impact in fostering a body of transnational climate change jurisprudence has served as a way to reflect on the significance of the case. ⁷¹ Climate change adjudication has played a central role in fuelling the ‘engine’ of the fledgling field of transnational environmental law and Urgenda has undoubtedly been a critical component of that fuel. ⁷² Indeed, the conscious recognition of the global implications of the case underpinned the Urgenda Foundation’s strategy throughout. ⁷³ For example, the Foundation’s website tracks the progress of similar climate cases from Canada to South Korea and the Foundation has established the Climate Litigation Network to nurture climate cases across the globe. ⁷⁴ Urgenda has undoubtedly helped to shape the growing body of transnational climate change litigation – grounding international commitments in legally enforceable domestic commitments, cross-pollinating judicial thinking along novel pathways, fleshing out the human rights dimensions of climate change and contributing to a narrative of transnational climate justice. At the end of the Urgenda story, it is therefore worth recognising and paying tribute to its impact.