SUMMARY
The State of the Netherlands (Ministry of Infrastructure and the Environment) has appealed a June 24, 2015, ruling from The Hague District Court enforcing the State to meet a 25% reduction in carbon emissions (relative to 1990 levels) by 2020. This ruling was affirmed on October 9, 2018 at The Hague Court of Appeal.
Highlights
While this decision cannot be directly applicable to the current legal system found in Canada, it is a step in the right direction that has the potential to influence decisions in similar cases around the world, including Saskatchewan. This decision shows:
- Dependent on the individual state’s legal framework, governing bodies can be held legally accountable to meet climate strategy targets.
- Dutch courts have an obligation to uphold details of a treaty to which the state is a party, placing them above domestic legislation that deviates from them. In Canada, international treaties are considered soft law, meaning their obligations not binding to the state in the absence of valid domestic legislation.
- Individual nations have a duty to mitigate climate change from within their own borders; they cannot hide behind the efforts of others.
DECISION
Appeal dismissed, lower court ruling upheld. By failing to pursue a more ambitious greenhouse gas reduction target by the end of 2020, the Netherlands has been acting unlawfully. The Netherlands must, at minimum, reduce their emissions by 25% by the end of 2020.
FACTS
Like Canada, the Netherlands has been party to international commitments for the protection of the environment and reduction of the effects of climate change since 1992 when the UN Framework Convention on Climate Change was concluded. The Netherlands have committed to various climate agreements since then, including the Kyoto Protocol (1997) and the Paris Agreement (2015). In this time, the Netherlands has called for increased efforts internationally and has committed themselves to more aggressive targets independent of the EU.
Despite this, the Netherlands has done relatively little to mitigate its contributions to greenhouse gases. Urgenda, an organization representing 900 Dutch citizens, argued that the State’s conduct, or lack thereof, is in violation of their duty of care expressed in articles 2 (the right to life) and 8 (the right to family life, which also covers the right to be protected from harmful environmental influences of a nature and scope this serious) of the European Convention on Human Rights (ECHR). The State relied largely on arguments that their overall contribution to global emissions is relatively minor in absolute terms, and that drastic, immediate action is not particularly imperative to achieve their future targets.
DISCUSSION
Brief Overview of The Netherland’s Past International Commitments to Climate Action
1992: Conclusion of the UN Framework Convention on Climate Change (UNFCCC), ratified by the majority of the worldwide community in an effort towards ecological and climate protection and sustainable development for current and future generations. The majority of the burden is to fall on Annex I* (developed) countries to take lead on efforts.
1997: The Kyoto Protocol is adopted, listing emission reduction requirements by all Annex I countries for 2012.
2007: The Bali Action Plan is implemented, calling for 25-40% emission reduction by all Annex I countries by 2020 (relative to 1990 levels) to avoid warming to 2°C above pre-industrial revolution levels.
2010: The Cancun Pledge signified an emission reduction target of 20% by 2020 for the European Union (EU) and up to 30% if other developed countries commit to similar targets.
2012: The Doha Climate Change Conference: Member parties express “grave concern” that member states were not lowering greenhouse gas emissions fast enough to meet the Copenhagen Accord’s 2009 mandate to prevent the earth’s temperature from rising more than 1.5°C above pre-industrial levels.
2015: Commitment to the Paris Agreement, calling for reduction of greenhouse gas emissions to limit global temperature increases to well below 2°C pre-industrial levels.
*Canada, though not party to the Kyoto Protocol, is an Annex I country. Canada is a member of the Paris Climate Agreement and has agreed to a 30% reduction in emissions by 2030 (compared to 2005 levels).
European Union Expectations for Emissions Reduction
The EU as a whole is expected to achieve an admissions reduction of 26-27% by 2020, with goals to reduce overall emissions to 40% by 2030 and 80-95% by 2050.
The Netherlands’ Initiatives
In 2009, the Dutch Minister of Housing, Spatial Planning and the Environment informed the Netherlands House of Representatives about Dutch objectives in the UNFCCC negotiations in Copenhagen: “The total emission reductions proposed by the developed countries so far is insufficient to achieve the 25-40% reduction in 2020, which is necessary to stay on a credible track to keep the 2 degrees objective within reach.”
Despite previously strong advocation and an independent commitment to 30% reductions by 2020, in 2011, the Dutch reduction target was adjusted to align with the EU-wide reduction of just 20% by 2020 (relative to 2005). In 2013 the Energy Agreement for Sustainable Growth was established, which aimed to reduce energy consumption and increase the proportion of the nation’s sustainable energy.
In response to a November 2016 report from The Netherlands Environmental Assessment Agency that called for a tightening of restrictions in the short term to align themselves with the Paris Agreement, the 2017 Dutch Climate Agreement indicated an intention to reduce their emissions to 49% by 2030 to acknowledge the necessity for drastic action.
Articles 2 and 8 of the European Convention on Human Rights (ECHR)
Article 2: The right to life, which includes environment-related situations that affect or threaten to affect the right to life.
Article 8: The right to private life, family life, home and correspondence. Relevant to environmental-related situations if (1) an act or omission has an adverse effect on the home and/or private life of a citizen, and (2) if that adverse effect has reached a certain minimum level of severity.
The State has a duty of care to take concrete actions to prevent a future violation of these interests. The burden on the State to take such actions must be reasonable and for which it is authorised in the case of a real and imminent threat, which the government knew or ought to have known about. The government has a wide margin of discretion in choosing its measures to prevent infringement as far as possible (para 42).
The Court’s Decision
On appeal, the State argued that Urgenda could not act on behalf of future generations. The Court did not accept this reasoning as determinative in this case, as it is with fair certainty that current generations of Dutch nationals would face the effects of climate change within their lifetime (para 37).
With respect to articles 2 and 8 of the ECHR, the Court considered the facts and circumstances which applied to the case at present, including (para 44):
- The direct link between anthropogenic greenhouse gas emissions and global warming;
- Historical temperature fluctuations and projected increases in the near-future;
- The effects of such increases in temperature on sea-level, weather, food production, disease, drought, and floods;
- The potential of reaching a tipping point, which may cause accelerated realization of the above effects;
- The continued increase of Dutch CO2 emissions despite overall reductions to greenhouse gas emissions due to attributable decline of other, less harmful emissions;
- The need to limit atmospheric concentration of greenhouse gases so as to achieve both 1.5°C and 2°C targets; and
- The urgency of which the State must act to resolve the above considerations.
In order to assess whether the State has met its duty of care, the Court considered as a starting point that an emission reduction of 25-40% in 2020 is required to achieve the 2°C target and thus prevent dangerous climate change (para 51).
The State’s express intent of meeting this goal, and exceeding the minimum targets laid out by the EU, suggests the level of urgency with which the State approached the issue of emissions reductions; a 25-40% reduction was necessary “to stay on credible track to keep the 2 degrees objective within reach”. This standard was subsequently adjusted downwards without any reasonable substantiation (para 52).
All things considered, the Court was of the opinion that a reduction obligation of at least 25% by end-2020 is in line with the State’s duty of care. The State, however, outlined many defences as to why it is nevertheless not obliged to take further reduction measures other than those that it currently proposed (ie. measures that would lead to the projected achievement of 14-17% reductions) (para 53).
