The Nickel Report

Should environmental groups or citizens be able to file lawsuits against their governments to force them to step up action to fight climate change? Some climate activists have claimed that resorting to judicial remedies is necessary because, in their opinion, the political system focuses on short-term economic interests to the detriment of long-term environmental concerns. Attempts to involve the courts in climate policy decision making have had very limited success, but a recent decision in The Netherlands may reinvigorate those efforts.

In that case, Urgenda, a sustainability action group, sought a court order requiring the Dutch government to aim for higher emission reduction targets. The court granted their request and instructed the government to revise its current policies to ensure that greenhouse gas emissions are reduced by at least 25 percent by 2020, not the 17 percent required under Dutch law.

The court reached this result by extending an existing tort law doctrine of “social responsibility” for avoiding “unacceptable danger creation.” The court found climate change to be an unacceptable, and thus unlawful, danger and ordered the Dutch government, based on its duty of care, to take action to protect against it.

Is the Urgenda doctrine the beginning a new era of climate change litigation with the courts ordering governments to step up their climate change efforts? Could US courts issue such orders? Is there any other way the Urgenda doctrine could influence US court decisions?

These questions are analyzed by Lucas Bergkamp and William Brownell in an article for ELI’s Forum. A discussion of the Dutch case was written for Energy Post by Lucas Bergkamp.