By Isabella Kaminski
The Urgenda Foundation stressed the human rights implications of failing to combat climate change during the latest hearing in its landmark legal case against the Dutch government.
The Netherlands’ Supreme Court heard oral arguments from both Urgenda and the government on Friday on whether Dutch law was applied correctly when a court ruled in 2015 that the country is required to cut its carbon emissions by 25 percent by 2020 compared to 1990 levels. That decision, in Urgenda Foundation v. The State of Netherlands, gave climate activists hope that courts would begin to compel countries to uphold their promises for climate action.
Although the Dutch government acknowledged the importance of tackling climate change, it continues to fight the court opinion that it has a fundamental “duty of care” to protect the environment for its people.
The government lost its first appeal at the Court of Appeal in the Hague in October, which upheld the district court’s decision. The second appeal was to the Supreme Court, which considers points of law rather than the facts of individual cases. Should the Supreme Court rule against the government, there would be no further avenue for appeal.
The government said the earlier decision “limits the state’s freedom of choice in establishing policy on the scope of this reduction” which could have “significant consequences” for government freedom to make climate policy in other areas.
Urgenda submitted its written defense in April and asked to have a hearing.
Dennis van Berkel, legal counsel for the Urgenda Foundation, said it put more emphasis on the case’s human rights aspects in its arguments to the Supreme Court. “The reason for that is the Court of Appeal based its judgment on human rights: article 2 and article 8 of the European Convention of Human Rights. That was a different legal basis from the basis that the district court had used.”
Van Berkel said the United Nations’ High Commissioner for Human Rights had asked the Netherlands’ Supreme Court whether it could provide a legal opinion. Third party interventions, known as an amicus curae, are common in U.S. cases but not allowed under Dutch law. “However, it does show the international interest in the case,” van Berkel said.
Both sides now have a month to respond to any arguments. After that, two court-appointed advocate generals will provide a formal opinion, probably in September. The Supreme Court is expected to make a final decision by the end of the year.
Van Berkel acknowledges that the ruling would be very close to the Netherlands’ 2020 deadline for the emissions target, which the country admits it is unlikely to reach. But he said a decision in favour of Urgenda would put more pressure on the government to meet its 2030 emissions target.
The latest greenhouse gas data from Centraal Bureau Voor de Statistiek, the Netherlands’ statistics body, showed a 14.5 percent reduction in the country’s emissions in 2018 compared with 1990, signaling that a 25 percent cut by the start of next year is close to impossible.
Van Berkel said he is pleased that climate change has become a much more important topic in Dutch politics since the 2015 ruling and the country passed its first piece of climate change legislation in December. But van Berkel called it a “paper tiger.” The act sets ambitious long-term emissions targets but does not introduce any system of carbon budgets nor an independent national climate change authority.
“How that act will influence future litigation, we don’t know,” he said. “But we do think that if our judgment stands and if it’s established that within the Dutch context not taking sufficient measures is a violation of human rights, that means something for the legality of future actions by the government.”
The case has already had an impact not just in the Netherlands but worldwide, inspiring lawsuits in several countries, including the U.S.
Van Berkel said the provisions in this case are universal. “It’s obviously not binding on other courts but we do expect it to have a strong indicative [effect] and for other courts to take inspiration from it.”
In June, Urgenda is also publishing a list of 40 specific emission reduction measures that the government could take to meet the 2020 target. “It would also show that there’s societal support,” van Berkel said.