Historical court ruling on CO2-reductions in the Netherlands

by Ingrid Robeyns on June 24, 2015

In 2014, the Dutch NGO Urgenda, together with 886 citizens, filed a law suit against the Dutch state for not taking sufficient action to limit climate change. Today, the court gave its verdict, which could live be followed on internet (in Dutch, without subtitles). The court has also immediately put an English translation of the ruling online. And the court has ruled:

The Hague District Court has ruled today that the State must take more action to reduce the greenhouse gas emissions in the Netherlands. The State also has to ensure that the Dutch emissions in the year 2020 will be at least 25% lower than those in 1990.

Many parties have called this a historical ruling, and no doubt this may inspire citizens and activist NGOs in other countries to take their States to court. Few commentators expected that the court would come to this ruling. Many believed that the court would not want to burn its fingers on what is essentially a political process; indeed, some have even gone so far to question whether the division of powers of the Trias Politica would be violated. Yet the court provided an answer to that worry:

With this order, the court has not entered the domain of politics. The court must provide legal protection, also in cases against the government, while respecting the government’s scope for policymaking. For these reasons, the court should exercise restraint and has limited therefore the reduction order to 25%, the lower limit of the 25%-40% norm.

The fact that the ruling only concerns 25% of CO2 reductions highlights that this is not the end of our struggles. A 25% reduction may be fanastic since it’s a court ruling (and that gives it a special kind of political status), but it is not enough. We should also not forgot the sadness of the situation – that we had to go to court to force the government to take action, in a country where legal action is generally not considered a way to do politics or bring activist concerns into the political arena.

Personally, this was the first time I was involved in a court case, being one of the 886 citizens who joined Urgenda (although those 886 citizens were merely providing moral and political support to Urgenda, who did all the work and should get all the credits for this victory). I am very pleased that given that, for many years, the Dutch government has failed to take its responsibilities for climate mitigation sufficiently seriously, we, the citizens, have now found a way to force our government to stop violating the basic rights of people in ecologically more vulnerable parts of the world, as well as those who will live in the future.

Surely the climate change denialists and those who dogmatically try to defend their short-term profit/welfare maximization interests, will try to do what they can to prevent effective change to be implemented. There is lots of money in their hands, and lots of power. This hasn’t been our last battle. But these are worries for tomorrow. Today is a victory for all those who are trying, each in their own way, to press for significant institutional and policy changes to limit the damage of climate change to all creatures living in ecological fragile places, and to preserve the ecosystems of the Earth for future generations.

{ 41 comments }

1

ZM 06.24.15 at 4:22 pm

That is great news to hear Ingrid. Congratulations for the victory. I hope it leads to similar cases elsewhere, and makes getting standing for similar cases in other countries more likely.

2

Omega Centauri 06.24.15 at 9:37 pm

Many thanks and congrats on a job well done.
I doubt it would work in the US, our courts have been packed with conservative partisans. Buit for the handful of recalitrant governments, this avenue might serve to ratchet up the pressure.

3

Val 06.24.15 at 9:50 pm

Wonderful news Ingrid.

4

cassander 06.24.15 at 11:08 pm

You didn’t have to go to court, you chose to go to court, because you calculated that going to court was easier than going to public opinion or parliament. Let’s call a spade a spade.

5

Shirley0401 06.24.15 at 11:38 pm

It’s so nice to read some encouraging news this week.

6

ZM 06.25.15 at 1:38 am

Omega Centauri,

“I doubt it would work in the US, our courts have been packed with conservative partisans. Buit for the handful of recalitrant governments, this avenue might serve to ratchet up the pressure.”

There is a group in the USA Our Children’s Trust who have been trying a similar thing there. So far they have not got standing.

But they have good news too:

“In a no-nonsense decision that calls out bureaucratic delay in the face of urgent and dire climate consequences, a judge in our Washington case just sided with the 8 youth petitioners, and ordered the state to reconsider its denial of the youth’s petition for emission reductions in accordance with current science.

Importantly, the judge ordered the state to consider the youth’s scientific evidence and to respond to the need to bring atmospheric carbon dioxide levels to below 350 ppm by 2100.

The State must notify the court in two short weeks whether it will amend or affirm it’s denial of the youth’s petition in face of the court’s and the youth’s scientific evidence. “

7

Tabasco 06.25.15 at 4:22 am

The State also has to ensure that the Dutch emissions in the year 2020 will be at least 25% lower than those in 1990.

Who gets sued or prosecuted if it doesn’t happen?

8

Ingrid Robeyns 06.25.15 at 5:36 am

cassander: for very rational reasons, many voters and politicians care little about long-term interests. And they also care little about harms done to people living in less powerful positions in another nation. These two structural features are very important in the case of the harms done by climate change (harm to e.g. the inhabitants of Kiribati and Tuvalu, and harm done to those who will live 500 yeas from now). Still, we would agree that our actions should not violate their basic rights. If these rights are violated, as is the case with the man-made causal contributions to harmful climate change, one can go to court to let a judge rule over whether this is done or not.
Oh and by the way, so many have tried public opinion for so long. But so many people are either unable or unwilling to swallow the real depth of the problem, and its structural features. Luckily judges have to look at all the evidence carefully, they can’t just say they are not interested in looking at the problem.

Tabasco: good question – I don’t know the answer. But even if there may be issues with legal enforceability, the political importance of this ruling seems very important to me.

9

Tabasco 06.25.15 at 5:56 am

so many people are either unable or unwilling to swallow the real depth of the problem, and its structural features

The problem of false consciousness never goes away. Would it not be easier for the government to dissolve the people and elect another?

10

Jim Buck 06.25.15 at 7:53 am

The people may awaken when they are bacon.

11

Trader Joe 06.25.15 at 11:25 am

Just a curiousity question as I am not (and likely most others are not either) familliar with the current level of Dutch greenhouse gas emissions relative to 1990 levels.

The question is there in fact any plausible way to reach a 25% ? Most projects and measures that I’m aware of that are able to make reasonably large cuts in emissions have a much longer lead time than approximately 5 years. If in fact achieving the target is plausible, it suggests some significant attention has already been paid to the matter or conversely, there’s little hope of achievement and the question above of “what happens if they miss” is relevant.

Its not my intent to pour cold water on a victory which is good news on its own, but the difficulty with many court victories is that they tend to be backward looking – they tell us what should have been done years ago to effect X, rather than what can/should be done to effect X now.

12

ZM 06.25.15 at 12:11 pm

Trader Joe,

“The question is there in fact any plausible way to reach a 25% ? Most projects and measures that I’m aware of that are able to make reasonably large cuts in emissions have a much longer lead time than approximately 5 years. “

I have read an article suggesting 50% cut in five years. It would be things like retrofitting buildings to conserve energy use, and cutting other energy use eg.transport.

Ingrid,

I would be interested to know if there was any discussion in the case of emissions consumption rather than production?

I have read in an article by a former Australuan government advisor that in the EU generally emissions production has I think decreased since 1990, but due to the off-shoring of manufacturing and more holidays abroad etc, if EU emissions are measured by consumption instead then they have actually increased by 47% since 1990.

Many thanks for this post, I am writing an assignment on the topic of legal challenges to government inaction on climate change at the moment, so hearing about this case and being able to read the ruling is very useful.

13

Cassander 06.25.15 at 1:41 pm

@ingrid

The unborn have rights now? Interesting. I assume that means you’re pro life?

14

anonymous 06.25.15 at 4:30 pm

Any news on the continuation of using wood pellets as a “renewable” energy source in the EU? The producers od wood pellets for the EU market, mostly EU owned and operated businesses, are currently pretty much on track to “harvest” every lowland temperate forest tree in the Southeast outside public trust property.

http://switchboard.nrdc.org/blogs/slyutse/injustice_in_northampton_a_com.html

http://www.dogwoodalliance.org/

15

Cassander 06.25.15 at 6:41 pm

@Ingrid

>Oh and by the way, so many have tried public opinion for so long. But so many people are either unable or unwilling to swallow the real depth of the problem, and its structural features

The same could be said of the “need” social conservatives articulate to “defend” marriage, or practically any other policy that anyone has desired for an extended period of time. “It’s hard” is not an excuse for subverting democracy through sympathetic judges.

16

jgtheok 06.25.15 at 8:37 pm

@Cassander Could you explain how this ‘subverts’ the Dutch system? I’m familiar with the system in the USA, where the judicial branch is mostly supposed to refrain from this sort of thing (the occasional ruling gets justified on grounds that the government is failing to meet some obligation it has undertaken). Not being an expert in Dutch law, I’m reluctant to opine on how much of a stretch this decision represents.

May have some parallels with the Tobacco Master Settlement Agreement, though I’ve generally heard that described as a collective decision by multiple levels of our government that they could no longer pretend to believe the tobacco lobby’s BS, rather than as a product of political activism…

17

cassander 06.25.15 at 11:01 pm

I claim no special expertise, but in no country are the courts supposed to make positive law. this is especially the case with civil law countries, which the netherlands is. the court does not even pretend that the dutch government is ignoring laws it passed or treaties it signed, it merely asserts that the state has a duty to lower emissions 25% rather than the 17% anticipated. if a court in the netherlands said that in order to provide legal protection for economic wellbeing of the dutch people, a reduction in taxes of 25-40% was “deemed necessary” and so ordered a 25% cut, the commentariat here would be outraged. I just want some consistency.

18

Matt 06.26.15 at 12:48 am

From commenter Tijger on Ars Technica:

you’d almost think they know what they’re talking about. Almost. If I wasnt dutch. And knew better.

Ok, simply put. The Dutch government has a “duty of care” towards its citizens and the country, the judge ruled that by not setting emission reduction to a higher level the government breached its duty of care.
It has absolutely nothing to do with the EU, btw, the numbers in question (ie targets to reach) come from the scientific community and not the EU.

For the… uh “experts” who pontificated about our judicial system, we dont elect judges, they are 100% professional and yes, we have a judges school and entirely seperate from government.

PS: Renewable energy is a problem for us and we know it, the country is very densely populated and we have few wide open space to allow for large wind or solar parks, we also lack the ability to use hydroelectrical installations or geothermal options. Currently construction is underway on several large windfarms in the North Sea though.

19

Matt 06.26.15 at 12:49 am

Missed the first line. The comment starts:

Oh, how lovely it is to hear foreigners pontificating about my country and how its wrong on so many levels, you’d almost think they know what they’re talking about. Almost. If I wasnt dutch. And knew better. …

20

ZM 06.26.15 at 12:53 am

cassander,

“I claim no special expertise, but in no country are the courts supposed to make positive law. “

This is not true – the parliament is responsible for statutory law, but the courts are responsible for common law.

In English and U.S. law the relevant law is the public trust doctrine, which is common law, so this is the jurisdiction of the courts not the parliament/House of Congress and Senate (what is the US term for the president, House of Commons, and senate collectively?)

21

Val 06.26.15 at 1:09 am

@ 17
Cassander, I’m not a lawyer, but I think you may be technically right to a limited degree as most law is expressed as what you shouldn’t do, rather than what you should. However there is always an implied standard of reasonable behaviour.

Of course reasonable behaviour isn’t always clearly codified hence the endless debates (when should you let your children walk to the park alone, etc http://ajcn.nutrition.org/content/96/3/459.full#ref-4). However, often some standards are developed, even if after the fact. So for example, a defence against anti-discrimination law now often requires that organisations have some equal opportunity policies in place.

ZM I think knows more than I do about how the idea of ‘duty of care’ applies to governments, and I would be interested to hear more about this (also Ingrid if you have time to comment further on this it would be interesting). It certainly seems like a potential way of overcoming some of the problems that are currently being discussed on John Quiggin’s thread.

22

cassander 06.26.15 at 2:25 am

@ZM

the netherlands are a civil law country, not common law. And even under common law, judges are supposed to “discover” law not make it. Now, granted, in practice that’s a largely rhetorical difference, judges make law all the time. That said, they’re supposed to at least pretend that they aren’t and to try to be subtle about it. this dutch ruling is not that, it’s flat out ordering the democratically elected government to adopt certain policies.

@Val

>t certainly seems like a potential way of overcoming some of the problems that are currently being discussed on John Quiggin’s thread.

it doesn’t overcome any problems. adopting that line of thinking justifies any policy you can convince 5 (or whatever the majority is in the netherlands) judges is good for society as a whole. It’s unaccountable, undemocratic, and unwise. But hey, it’s a short term tactical victory for you, so celebrate away as long as you can make yourself ignore the long term harm it represents.

23

ZM 06.26.15 at 2:40 am

casander,

To be honest I know nothing whatsoever about the Dutch legal system.

You are right about Judge’s using existing laws not just making up new laws, which is the domain of the parliament.

But in our English derived legal systems the law is one of the unwritten non-statutory laws of the kind trusts. So the judge can rule the government is being derelict in meeting its trust obligations and order that the government stop being derelict and follow the best science and make plans to return to 350ppm CO2e by 2100.

24

cassander 06.26.15 at 3:28 am

@ZM

the problem with that theory is that there is absolutely nothing the netherlands can do to achieve that figure. the dutch represent what, less than 1 percent of global carbon emissions? If they cut emissions to zero, they’d have almost no impact, even before considering that the population would respond by importing goods from places that do emit. This ruling is hair shirt environmentalism at its worst.

25

Seeds 06.26.15 at 5:20 am

cassander: everyone understands that you are upset about this ruling on every possible level. Please be quiet now.

26

ZM 06.26.15 at 8:10 am

cassander,

You have a point about importing goods with embodied ghg emissions, I asked Ingrid above if emissions relating to consumption rather than production was considered in the case, as I know reports have looked at that in the UK (I think I read one by the Tyndale Centre which Kevin Anderson is part of).

In terms of what the Netherlands can do, I would think the Judge would expect the government to form a strategic plan relating to ghg emission production in the Netherlands, ghg emissions by consumption in the Netherlands, and also the part played by the Netherlands in international negotiations and actions. The strategic plan would have to be consistent with the 25% reduction from 1990s levels that the court has required by 2020.

The case also could be used as a precedent in other jurisdictions.

27

Zamfir 06.26.15 at 7:34 pm

A core part of the ruling is that the Dutch government itself does not deny a need to lower emissions on such scale. It signs treaties to that effect, its own agencies support such goals, it posits long term goals that imply higher intermediate goals than are achieved, it did not challenge the targets in court. That’s partially why the court felt confident to make such a policy-like verdict.

Over all, I still don’t like this ruling. Too much encroachment of judges on policy making for my personal tastes. And I hope (and expect) it gets overturned in appeal. But I can see where they are coming from.

28

Ingrid Robeyns 06.26.15 at 8:33 pm

Trader Joe @11: there’s lots of debate now, including most prominently the worries that Zamfir @27 expresses, but I haven’t seen the claim yet that reducing Co2 emissions to 25% below the 1990 level would be unfeasible. IN fact, in today’s Daily Trouw, Ed Nijpels (prominent member of VVD – the Dutch conservatives- and the chair of the committee who oversees policy implementation in the energy sector), does not mention that its unfeasible. He does say that it would require additional measures – which doesn’t surprise anyone, since the Netherlands is performing very poorly in the energy transition, for example, with a much lower percentage of our energy coming from renewable sources compared with e.g. Germany. In short, the fact that the opponents of this ruling have not yet raised the unfeasibility objections, suggests that this is not a forceful problem (although it will be a challenge).

ZM @ 12: I’m sorry, but I haven’t heard any discussion on the consumption/production difference.

Cassander @ 13: it doesn’t follow from my post that in order to be consistent I have to be against abortions. Minimal morality requires that, for those basic freedoms which we are claiming for ourselves, we are not violating the same basic freedoms for those people who will be alive in the future. Foetusses who will not become babies are not in the category of people who will be alive in the future. It is absolutely consistent to be pro-protecting the basic rights to those who will be alive in the future and not being opposed to abortion.

Val @ 21: All the law I studied was Belgian Law, and I haven’t had the time to delve into what exactly the “duty of care” means from a legal point of view. I should add that the reasons I have for supporting this Court ruling stem from moral philosophy (in combination with reading some science studies on the effects of climate change on a range or parameters of people’s quality of life), rather than legal philosophy. ON my reading of the climate ethics literate, virtually all ethical positions would endorse the claim that this minimal level of emissions reductions should be made by those who are currently the high-emitters, since our choices are violating the basic human rights of those who will leave in the future, and we are harming the basic interests of those who are living in ecological fragile areas.

Zamfir @27: these are very important worries, and they require a post of its own. But in a nutshell, these are my thoughts: I don’t think Co2 reductions are a policy choice like any other, since CO2 emissions lead to infringements of other people’s basic rights. If it were an ordinary policy issue, then I agree that the judge should point at the parliament to make decisions. Voting is an inefficient and unfair system if what’s at stake is transnational (we pollute, citizens of Kiribati suffer), and intergenerational (we pollute, future generations will suffer). If we understand democracy as being a fair representation of everyone’s interest, then the courts are needed to enhance democratic decision making in cases where those whose basic interests are negatively and most deeply affected, are not included in the existing democratic institutions.

As to more recent events: I believe Vanuatu, Kiribati, Tuvalu, Fiji, Solomon Islands and the Philippines are right in their decision to sue big oil companies, and I hope they will win. See http://www.truth-out.org/news/item/31519-six-tiny-island-countries-to-sue-big-oil-for-disrupting-the-climate It’s clear that political negotiations in this complicated Collective action problem have failed and we have no reason to expect that they will quickly bring us a sufficient solution – hence I applaud all those countries and groups that search for other ways, including the legal.

29

cassander 06.26.15 at 10:01 pm

@Ingrid Robeyns

>It is absolutely consistent to be pro-protecting the basic rights to those who will be alive in the future and not being opposed to abortion.

So your theory is that people have rights to state protection before conception and after birth, but not in between? I’m as pro choice as you can get, but that’s one of the most absurd moral arguments I’ve ever seen. What causes the foetus to lose the right to life that you assert not yet conceived dutchmen possess? Why does duty of care apply to the unconceived but not the unborn?

30

c 06.27.15 at 10:36 am

cassander #29: Imagine that a person A goes out today (time t1) and tortures 1000 people to death. Wrong, right? Next imagine that a person B goes out today (time t1) and starts an unstoppable machine that will stay dormant for 50 years and then (at time t50) proceeds to torture 1000 people to death, people who will be already born at t50 but wasn’t yet born at t1. Do you think B does anything wrong by starting the machine at t1, if we assume B knows the delayed consequences the machine will have?

31

ZM 06.27.15 at 11:29 am

cassander,

“So your theory is that people have rights to state protection before conception and after birth, but not in between? I’m as pro choice as you can get, but that’s one of the most absurd moral arguments I’ve ever seen. What causes the foetus to lose the right to life that you assert not yet conceived dutchmen possess? Why does duty of care apply to the unconceived but not the unborn?”

I have brought that up as being a bit contradictory too. But I don’t see what else can be done if people want modern medicine. The population would grow too fast. I think the Japanese approach to abortions is better than the Western approach, with mourning rites:

“Mizuko (水子?), literally “water child”, is a Japanese term for a dead fetus or, archaically, a dead baby or infant. Previously read suiji, the Sino-Japanese on’yomi reading of the same characters, the term was originally a kaimyō (posthumous name) given after death.[1] The mizuko kuyō ceremony was used to make offerings to Jizō, a bodhisattva who is believed to protect children. In the Edo period, when famine sometimes led the poverty-stricken to infanticide and abortion, the practice was adapted to cover these situations as well.”
https://en.wikipedia.org/wiki/Mizuko_kuyō

32

Norwegian Guy 06.27.15 at 8:44 pm

jgtheok @16:

“I’m familiar with the system in the USA, where the judicial branch is mostly supposed to refrain from this sort of thing”

Don’t know about the Netherlands, but my impression is that the US court system is much more political than in most European countries. AFAIK, American judges interfere with the legislative branch with some regularity, for instance with same-sex marriage just the other day.

33

cassander 06.28.15 at 12:18 am

@C

As I see it, there are three ways you can argue for abortion. 1, that the fetus doesn’t have any rights. 2, that it does have rights but they’re trumped by the mother’s rights. Or 3, that the fetus does have rights, but allowing abortion anyway results in overall utilitarian gain, or at least more gain than banning it does.

Ingrid’s argument that future people have rights seems to preclude 1, her argument that we are obligated to pay immense costs because of those rights seems to preclude 2. She could argue 3, and I imagine will, but that’s hardly the argument she made initially, which was that current dutchmen are obligated to pay huge costs to respect the rights of future dutchmen. If you accept that your future murder machine is just as evil as the current murder machine, then I don’t see how you can make an argument that a “murder a bunch of fetuses” machine wouldn’t also be evil.

34

Val 06.28.15 at 2:41 pm

Here is an article from The Conversation about the implications of the Dutch decision for Australia. The author suggests that while our law is different in significant ways, it is not out of the question to think that legal process could be used in Australia for similar purposes.

Cassander, I probably shouldn’t bother replying to you, but foetuses are not separate human beings, they are part of pregnant women’s bodies. You can talk about souls – or even potentialities, which I think is a much more reasonable basis to have a conversation on – if you like, but biologically they are not separate people, and your attempted parallel is meaningless.

35

Val 06.28.15 at 2:41 pm

36

ZM 06.28.15 at 4:01 pm

Thanks for the link Val, that’s an interesting article. I have spoken to Environmental Justice Victoria a few times earlier this year to see if they have interest in a case, but they thought at the moment there was not a strong chance of being successful so had decided not to devote resources to preparing a case at the moment.

As I am studying urban planning, my assignment I’m writing on the topic will look in part at how people could argue the case through the planning process, eg via objections at VCAT to developments that would significantly increase greenhouse gas emissions. I have submitted a late objection to a proposed broiler farm in my shire on these grounds.

I think if people used the planning process like this you could reasonably quickly build up case law, which would increase the likelihood of getting standing for a Claim Against the Crown in Victoria, or a Claim Against The Crown in the Commonwealth.

I think the public trust doctrine could also be used in the upcoming court cases about the development of coal mines in the Galillee Basin, but I spoke to people involved and at the moment they are basing their cases on statutory laws.

One of the cases about the galilee basin is being fought by Indigenous traditional owners, which is where I think the Hawaiian and New Zealand precedents looking at public trust doctrine and their equivalents of native title could be helpful.

In a New Zealand case a river was recognised as a legal person and given two legal guardians, one chosen by the traditional owners the Iwi, and one by the Crown.

The proposed broiler farm I have submitted an objection to is on grass plains. I talked to a local environmental scientist these grass plains are not natural grass plains, but the result of centuries of indigenous land management through fires, like in Bill Gammage’s book The Greatest Estate, so there is a very important cultural heritage there.

37

cassander 06.28.15 at 5:44 pm

@val

Your argument is premised not on actual existing personhood but future personhood. future dutch people, I think you would agree, are not current persons. Neither is a fetus. Fine, but a fetus exists and will probably be a real person in a few months, the unconceived are completely hypothetical. If voters today have a duty to consider the rights of people who will not be born for decades, how do mothers not have a duty to consider the rights of something that will be born in a few months?

Now, again, I’m pro choice, largely for my reasons 2 and 3. I think the rights of current people trump future people. But you’ve explicitly rejected that argument. So how do you remain pro-choice and intellectually consistent?

38

anonymous 06.29.15 at 2:49 am

Ok so wood pellets aren’t that important. Not quite the scope of the Galillee Basin. But I can’t see Frisia from my porch or the highest local hill either so what do I care if it disappears beneath the North Sea. For good measure I hereby renounce any Frisian, Dutch, Danish or German ancestry with which I might be handicapped. How perfectly Frisian of me.

Still it is interesting how seemingly well intended E U policy can be twisted into extractive environmental pillaging. http://e360.yale.edu/feature/wood_pellets_green_energy_or_new_source_of_co2_emissions/2840/

39

Val 06.29.15 at 8:54 am

Thanks ZM that’s really interesting and informative. I will be interested to hear how it all goes.

40

Val 06.29.15 at 9:03 am

Cassander you are talking about two different things: 1) a foetus which is part of a woman’s body and has the potential of being born and becoming a person, but does not now have the rights of a person, and 2) the rights of potential future people who will (at that time) have been born and will therefore have rights as people.

They are not comparable. However I don’t think I can explain it any more clearly so you will just have to take the time to puzzle it out yourself, I guess.

41

Cassander 06.29.15 at 1:54 pm

@Val

If you have no argument Val, just admit it, you’ll look a lot less foolish. All you’ve said so far is that some future people are more equal than others for….reasons.

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