The Nickel Report

On December 20, 2019, the Supreme Court of The Netherlands ruled in a climate case brought against the state by Urgenda, a non-governmental organization for “a fast transition towards a sustainable society.” The Court of Appeal and the Court of The Hague had previously ruled on Urgenda's claims. In both instances, the courts granted Urgenda's claim that the Dutch state should reduce emissions of CO2 from its territory by at least 25% by the end of 2020. The Supreme Court rejected the state’s appeal and confirmed the ruling.

Urgenda’s counsel argued that the court should step in because the Dutch parliament had proven unable to enact sufficiently aggressive climate legislation: “If parliament cannot resolve the climate issue, the court has to act.”

Remarkably, the Supreme Court pronounced its climate judgment also in English, a first for this institution. Apparently, the judges wanted the world to know that they have joined the fight against climate change. The international press called the judgment a shining example for judges worldwide. According to the UN special rapporteur on human rights and the environment, the Dutch court’s ruling is “the most important climate change court decision in the world so far, confirming that human rights are jeopardized by the climate emergency and that wealthy nations are legally obligated to achieve rapid and substantial emission reductions.”

Contrary to the expectations of Dutch legal scholars, the court side-stepped the separation of powers political question and legal standing doctrines to order the government to step up the fight against climate change. If followed by other courts, the implications for future climate litigation is significant at various levels. For example, the Urgenda court found a right to a safe climate, as part of the human right to life. It applied a doctrine of partial responsibility to overcome arguments that emissions associated with operations in The Netherlands are negligible when put in a global context. The Dutch Supreme Court also relied on a “no harm” principle which it said is enshrined in international law.

The relevant facts were not in dispute. Basically, the Dutch courts based its ruling on Urgenda’s summary of the lPCC’s Summary for Policy Makers, even though the relevant assumptions and qualifications had been omitted. Through a convoluted argument, the Supreme Court finds that the danger of climate change is so great that the Dutch government must already strive for additional emission reduction by 2020.

The Dutch Supreme Court’s climate ruling will likely reverberate through the legal order of The Netherlands and beyond for some time to come. Businesses with carbon-intensive operations or products should pay attention to these developments. The combination of these holdings could lead to additional litigation aimed at finding governments accountable for more aggressive regulation of their share of the greenhouse gas emissions. Once such accountability has been established, the next step may be toward liability for companies.

Author Lucas Bergkamp is working on a longer article with fuller analysis. Once it has been published, a link will be posted on the Nickel Blog.