The Dutch State needs to step-up to reach 25% emissions reduction in 2020

On 24 June 2015 the Dutch State was ordered to take more action to reduce the greenhouse gas emissions by 2020. The Hague court ruled that the State has to ensure that emissions in the Netherlands in the year 2020 will be at least 25% lower than those in 1990.

Urgenda vs. the Dutch State: grounds of appeal

The claimant was the foundation (stichting) Urgenda. The defendant was the Dutch State, represented in court by the Ministry of Infrastructure and Environment.

Urgenda put forward a variety of arguments, which can be summarized as follows:

The State is liable based on a breach of its obligations under article 21 of the Dutch Constitution (“It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment”), in that it failed to take sufficient measures to reduce emissions in light of international agreements based on best available research. This leads to (disproportional) damages to current and future generations in and outside of the Netherlands;
A positive obligation to take protective measures exists on the basis of the principles under the European Convention on Human Rights;
The State is liable for not taking sufficient mitigating measures leading to danger for the environment, and consequently the health of the population and its environment, which results in a breach of the duty of care (zorgplicht) by the Dutch State;

The defence of the State was, in short, that no legal obligation exists to take further measures to limit the greenhouse gas emissions than those already taken.

Court ruling in favour of Urgenda: 25% in 2020

The court found that no legal obligation to further limit the emissions can be based on (i) article 21 of the Dutch Constitution, (ii) the “no harm” principle of international law, (iii) the UN Framework Convention on Climate Change, and (iv) article 191 of the Treaty on the Functioning of the European Union and the emissions reduction scheme. Furthermore, Urgenda is not directly protected by the articles 2 and 8 of the European Convention on Human Rights. Nevertheless, the foregoing legal framework was relevant for assessing a possible breach by the Dutch State of its duty of care towards Urgenda and, to a degree, reduces the discretionary power (beleidsvrijheid) of the Dutch State.

The court then ruled that the Dutch State is obliged to take mitigating measures because without them the consequences of climate change will be both severe and inevitable. This obligation is not limited by the argument that the Netherlands only contributes a small amount to the present global emissions.

Based on the State’s existing policy, the Netherlands will achieve a reduction of 17% at most by 2020, which is below the norm of 25% to 40% for developed countries deemed necessary in climate science and international climate policy. As the Dutch State acknowledges the potential to increase its reduction target and has imposed a policy target of 30% in the past, the court further ruled that a target of 25% cannot be seen as an unreasonable burden for the Netherlands, or its economy, or the State, and its limited financial means.

The court has ordered the Dutch State to lower the combined volume of its annual emission of greenhouse gases, to be decreased by 25% in 2020 against the volume of the year 1990. The court declared that the ruling will take effect immediately (uitvoerbaar bij voorraad).

Will the Dutch State appeal?

The court ruling is binding for the Dutch State. It is not possible to suspend the ruling because it takes effect immediately. Only if the court decision is annulled on appeal will the Dutch State no longer be obliged to carry out the ruling. The Dutch State has three months to file an appeal. Due to the possible impact of this ruling, including liability claims, future legal cases against the Dutch State, and the impact of the ruling on the national policy, it is likely that the State will exercise its right to appeal.

Unclear what the Dutch State will do in order to reach 25% in 2020

At this point, aside from the possibility of appeal, the precise implications of the ruling are not clear. If the Dutch State follows the court ruling, then it should implement new policies and legislation leading to an (extra) increase by 8% (being the obligatory 25% minus the current target of 17%) of the limitation of the greenhouse gases by 2020. The court did not specify how the Dutch State should meet the reduction mandate, but it said some of the possible measures include limiting the use of fossil fuels by emissions trading or tax measures, introduction of renewable energy sources, reduction of energy consumption, reforestation, and combating deforestation.

From a practical perspective, it is difficult to foresee what legal measures Urgenda has to enforce the court ruling, such as the involvement of a bailiff (deurwaarder). However, it may be unclear when the Dutch State is deemed to be in breach of the court ruling. This may happen if there is sufficient evidence that the target of 25% will not be reached by 2020. Such a situation may provide grounds for a new legal action due to non-compliance prior to 2020 based on article 6:80 of the Dutch Civil Code.

Good news for the environment, but will similar court cases follow?

If the Dutch State accepts the challenge of 25% emissions reduction in 2020 it will mean good news for the environment. The interesting question will be whether other parties find inspiration in this ruling and start their own proceedings against the Dutch State. Of course it would be wise to wait for the outcome of any appeal against the recent decision, but in any event obtaining a similar ruling is not guaranteed. There are various obstacles to overcome. In the case started by Urgenda the available international obligations and scientific data provided convincing grounds for the ruling, which was further helped by the general agreement on the negative impact of climate change. Although there may be grounds to start similar proceedings, such a step should not be taken lightly.