Must do better. Dutch Court of Appeal’s verdict on the Netherlands State’s efforts on climate change.

 

 

An interesting contrast to the UK climate change case in Plan B recently noted in this blog. On 9 Oct, the day after the IPCC released its report setting out why global warming must not exceed 1.5 C over pre industrial levels, and how challenging achieving that is going to be, the Amsterdam Court of Appeal gave its decision in State of Netherlands v Urgenda Foundation, (Case number : 200.178.245/01 – English translation available at ). Urgenda had brought a class action seeking an order that that the Netherlands State be ordered to achieve a reduction so that the cumulative volume of Netherlands greenhouse gas emissions would be reduced by 40%, or at least by 25%, by end-2020, relative to 1990 levels. The Netherlands had initially set a 30% relative target but after 2011 the target was reduced to 20% to align it with the EU’s target in the Emissions Trading Scheme Directive 2003/87, as subsequently amended.

 

The District Court ordered the State to reduce to 25% . The Court of Appeal has now rejected the State’s appeal. The State had acted unlawfully under Book 6 Section162 of the Dutch Civil Code and also under two articles of the ECHR, which has direct affect in the Netherlands: article 2 which sets out the right to life and also under art 8. Class actions could not be brought before the Court in Strasbourg, but could be brought before the Dutch Courts. Although the 25% target exceeded the EU’s 20% target the State was not precluded from taking more ambitious measures, providing this did not interfere with the EU’s ETS system, which it would not. Of particular interest is the Court of Appeal’s reference to the role of negative emissions technologies in combatting global warming.

 

[49] In the report of the European Academies Science Advisory Council (‘Negative emission technologies: What role in meeting Paris Agreement targets?’), entered into evidence by Urgenda as Exhibit 164, the following is noted about negative emissions:
“(…)We conclude that these technologies [Court: negative emission technologies, or NETs] offer only limited realistic potential to remove carbon from the atmosphere and not at the scale envisaged in some climate scenarios (…)” (p. 1)“Figure 1 shows not only the dramatic reductions required, but also that there remains the challenge of reducing sources that are particularly difficult to avoid (these include air and marine transport, and continued emissions from agriculture). Many scenarios to achieve Paris Agreement targets have thus had to hypothesise that there will be future technologies which are capable of removing CO2 from the atmosphere.” (p. 5)
(…) the inclusion of CDR [Court: removal of CO2 from the atmosphere] in scenarios is merely a projection of what would happen if such technologies existed. It does not imply that such technologies would either be available, or would work at the levels assumed in the scenario calculations. As such, it is easy to misinterpret these scenarios as including some judgment on the likelihood of such technologies being available in the future.” (p. 5)
The State has failed to contest this by not providing adequate substantiation. Therefore, the Court assumes that the option to remove CO2 from the atmosphere with certain technologies in the future is highly uncertain and that the climate scenarios based on such technologies are not very realistic considering the current state of affairs.

 

In the UK Plan B decision the Court referred to the Committee on Climate Change’s view that the UK’s planned reduction would be challenging but would be accelerated after 2030 by, inter alia, carbon capture. Plan B have lodged an appeal against the court’s refusal to grant judicial review. The reference to the challenge of reducing greenhouse gas emissions from marine transport is also interesting in the light of what is currently happening in the IMO, as noted in our blog.

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Professor Simon Baughen

Professor Simon Baughen was appointed as Professor of Shipping Law in September 2013 (previously Reader at the University of Bristol Law School). Simon Baughen studied law at Oxford and practised in maritime law for several years before joining academia. His research interests lie mainly in the field of shipping law, but also include the law of trusts and the environmental law implications of the activities of multinational corporations in the developing world. Simon's book on Shipping Law, has run to five editions and is already well-known to academics and students alike as by far the most learned and approachable work on the subject. Furthermore, he is now the author of the very well-established practitioner's work Summerskill on Laytime. He has an extensive list of publications to his name, including International Trade and the Protection of the Environment. He has also written and taught extensively on commercial law, trusts and environmental law. Simon will be a member of the Institute of International Shipping and Trade Law, a University Research Centre within the School of Law, and he will teach on both the LLM (Carriage of Goods by Sea, Land and Air and Oil and Gas Law) and LLB programmes at Swansea.

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