A tale of targets. Dutch Supreme Court decides on climate change and State’s duty to protect its citizens.

 

 

A new feature of the legal landscape is climate change litigation – be it tort claims against carbon majors in the US, investor fraud allegations in the US, and public law challenges in Europe. The last of these yielded an interesting decision just before Christmas when the Dutch Supreme Court gave its decision in the Urgenda case, reported in this blog on 25 October 2018, upholding the judgments of the lower courts that the Dutch State must reduce GHG emissions by 25% over 1990 levels by the end of 2020.

 

The Dutch Supreme Court has summarised its decision as follows (an English translation of its judgment is not yet available).

 

  • The Supreme Court based its judgment on the UN Climate Convention and on the Dutch State’s legal duties to protect the life and well-being of citizens in the Netherlands, which obligations are laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR).
  • There is a large degree of consensus in the scientific and international community on the urgent need for developed countries to reduce greenhouse gas emissions by at least 25% by the end of 2020. The Dutch State has not explained why a lower reduction would be justified and could still lead, on time, to the final target accepted by the Dutch State.
  • The Dutch State has argued that it is up to politicians to decide on the reduction of greenhouse gas emissions. According to the Supreme Court, however, the Dutch Constitution requires the Dutch courts to apply the provisions of the ECHR. This role of the courts to offer legal protection is an essential element of a democracy under the rule of law. The courts are responsible for guarding the limits of the law. That is what the Court of Appeal has done in this case, according to the Supreme Court.
  • Therefore, the Supreme Court ruled that the Court of Appeal was allowed and could decide that the Dutch State is obliged to achieve the 25% reduction by the end of 2020, on account of the risk of dangerous climate change that could also have a serious impact on the rights to life and well-being of residents of the Netherlands.

The decision is the first successful climate change challenge to a government’s targets for reducing GHG emissions. In May 2019 a challenge to the EU’s targets of a 40% reduction by 2030 over 1990 levels in Carvalho v European Parliament and Council of EU, Case T-330/18 failed, and a similar challenge to the UK’s targets under the Climate Change Act 2008 in the Plan B case, reported here on 3 September 2018, also failed.

 

Published by

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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