The Urgenda decision: balanced constitutionalism in the face of climate change?

Over the coming months and years, much will undoubtedly be written about Urgenda v Netherlands, the decision by a District Court in the Hague ordering the Dutch Government to “limit or have limited” national greenhouse gas emissions by at least 25% by 2020 compared to the level emitted in 1990. A full analysis of the decision is due to appear in the Journal of Environmental Law before the end of the year, but given the myriad of legal issues thrown up by the case, it deserves the close and immediate attention of a wide community of scholars and practitioners.

In brief, the Court found that the State was in breach of its duty of care to Dutch society by failing to take sufficient mitigation measures to prevent dangerous climate change. Up until 2010, the Netherlands had a national target for reducing emissions by 30% by 2020 compared to 1990 levels. The government continued to accept that national reductions of 25-40% by 2020 were needed in order to effectively support the global aim of preventing temperatures rising above 2°C; however, the present mitigation path would only achieve 17%. At this time, the government did not attempt to argue that the scientific consensus had changed or that the original target was economically impossible. Instead, it submitted that the State had no legal obligation to take the more onerous mitigation path, and that allowing any part of the claim would intrude upon the State’s political discretion and interfere with the “separation of powers.”

Urgenda’s claim was based upon a number of arguments. However, the Court found that, as an NGO, Urgenda could not claim a breach of any constitutionally enumerated human rights nor could it rely upon the international “no harm” (Trail Smelter Arbitration) principle. A claim based on “hazardous state negligence” was actionable though. The Court considered all relevant constitutional rights and State treaty obligations, along with a host of other “soft law” and official information (including Ministerial letters, policy documents, decisions of the Kyoto Protocol COPs, the Netherlands commitments under the Doha Amendment, and so on) in order to create a framework first to ascertain the minimum standard of care required by the State and second, to establish the parameters of the State’s discretion. A reduction of 25% reflected the minimum standard of care necessary.

The decision is fascinating due to the way the Court dismissed excuses for avoiding unilateral state action, ones that have been part of the climate change discourse for so many years. The fact that emissions were caused by third parties was irrelevant; the government had the sovereign power to control emissions—i.e. “systemic responsibility”—within its territory. The comparatively minor contribution of the Netherlands to global emissions was inconsequential and the “but for” test, inapplicable. In other words, “any anthropogenic greenhouse gas emission, no matter how minor, contributes to an increase of CO2 levels in the atmosphere and is therefore to hazardous climate change. Emission reduction therefore concerns both a joint and individual responsibility of the signatories to the UN Climate Change Convention.” There was no evidence to support contentions of “carbon leakage.” Any “waterbed effect” in the EU ETS would be minor, and relying predominantly on adaptation created too much uncertainty and was not cost-effective. Fundamentally, “prevention was better than cure.”

Just this brief explanation of the case suggests many issues for exploration. Environmental lawyers may see a crystallisation of the non-regression principle. International and tort lawyers will want to examine the use of “soft law” as informing duties and standards of care for tortious liability. But the case is particularly interesting for public lawyers and political scientists concerned with the relationship between the branches of government.

The Dutch Court explained that its role was simply to review “lawfulness,” but their decision might be perceived as suggesting something more than that—an example of a court overstepping constitutional boundaries. The Court was acutely aware of this possibility. Under a sub-heading entitled “The Separation of Powers,” the Court explained why the decision did not qualify as something beyond constitutional remit. Dutch law does not establish a “full” separation of state powers, rather there is a “balance” within the constitution; citizens require legal protection from the State, and in being tasked with adjudicating over those disputes, the judiciary has “democratic legitimacy.” Further, the Court cannot refuse to decide matters within its jurisdiction simply because there may be political ramifications. Interestingly, the polycentric nature of the debate is a difficulty that the Court did not fully address, other than stating that, as the Court did “not have a clear picture of the magnitude and meaning of … [all] consequences,” there was a need for some restraint in what the Court should order.

The Court alluded to a general difficulty in correctly confining the judicial role in cases of alleged state negligence where the issues of “should citizens be protected” (i.e. is there a duty and is it being flouted) and “how to achieve that protection” are conflated. However, where the issues can be spliced and a minimum standard of protection can be reduced to quantifiable terms (in this case, the percentage reduction) from how that reduction is achieved (the policy issue), then it appears permissible for the courts to establish that standard. In doing so, they will remain within the correct confines of their role, protecting rights rather than creating policy.

Urgenda follows closely on the heels of ClientEarth, R (on the application of) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28 (29 April 2015), a case in which the UK Supreme Court ordered the UK government to comply with the nitrogen dioxide limits provided for in the EU Air Quality Directive. Nitrogen dioxide is toxic and the direct cause of multiple deaths annually, but it is also relevant to the climate change problem; it is an indirect greenhouse gas (unregulated by the Kyoto Protocol) and created predominantly by burning fossil fuels. In my own jurisdiction of New Zealand, the Chief Justice has issued several powerfully worded judgments in climate change-related cases and recently called (extra-judicially) for freedom “from such conceptual shackles as the doctrine of parliamentary sovereignty,” a desire “to think less barrenly about … the ‘law-state,’’’ and a framework provided by new constitutional map-makers that will protect things of societal value threatened by “not [having] a shared sense of what is important.”

None of this, I believe, portends a constitutional revolution. Nor perhaps is it evidence of an evolutionary continuum, where the courts cement a greater constitutional role for themselves over time. It may, however, be evidence of the courts “taking up the slack,” shifting, and changing position as the context demands in order to restore the constitutional equilibrium, with the prospect of withdrawal when the need passes. Climate change is providing that context.

Lord Woolf has referred to a time “unthinkable” when courts may have to take responsibility for re-balancing the constitution. What is most interesting to me about the Urgenda case is the idea that this might be a time “unthinkable”: a time when the political branch is unwilling or unable to protect fundamental rights; a time of environmental destruction on such a massive scale that, as the Dutch Court put it, we are facing “catastrophic consequences”; an awareness on the part of the Court that “the other” has abdicated its responsibility; and the realization that it is time to take up the slack. Are the branches of the Dutch State shifting, re-adjusting within constitutional parameters, acknowledging and acting upon their relative strengths and weaknesses in order to cope with the “unthinkable?”

What the Netherlands does now is critical. Even Goldsworthy admits that the “courts can initiate change, provided that the other branches of government are willing to accept it.” Will the Dutch government reject the Urgenda decision and appeal, re-claiming sole responsibility for the “wicked problem” of climate change? Or will it acquiesce and by corollary accept, perhaps even welcome, the constitutional re-balancing?

Image Credit: “Prinses Amalia windmolenpark 4” by Ad Meskens. CC BY-SA 3.0 via Wikimedia Commons.