CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
28 June 2015
photo from Urgenda website
The Guardian recently reported that the Netherlands government was ordered by a local court to cut its greenhouse gas emissions by 25% within five years, the three-person court holding that the government plans to cut emissions by just 14-17% compared to 1990 levels by 2020 were unlawful, given the scale of the threat posed by climate change.
The case is precedent-setting since, according to Urgenda, the group that gathered together the citizens who filed the case, it is the first time that a judge has legally required a state to take precautions against climate change. It is also the first case in the world in which human rights are used as a legal basis to protect citizens against climate change.
The Climate Case, as it was described in the Urgenda website, was initiated in November 2012 with a letter to the government asking for action and a call for ‘crowd pleading’ in which Dutch citizens could support the case and join as co-plaintiffs.
A year later on 20 November 2013, Urgenda together with 900 co-plaintiffs filed the case against the Dutch government. On 14 April 2015, a district court in The Hague heard the arguments of the parties. The verdict of the court dated 24 June 2015, reads :
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. The Urgenda Foundation had requested the court for a ruling.
Current policy below the norm
The parties agree that the severity and scope of the climate problem make it necessary to take measures to reduce greenhouse gas emissions. Based on the State’s current policy, the Netherlands will achieve a reduction of 17% at most in 2020, which is below the norm of 25% to 40% for developed countries deemed necessary in climate science and international climate policy.
State must provide protection
The State must do more to avert the imminent danger caused by climate change, also in view of its duty of care to protect and improve the living environment. The State is responsible for effectively controlling the Dutch emission levels. Moreover, the costs of the measures ordered by the court are not unacceptably high. Therefore, the State should not hide behind the argument that the solution to the global climate problem does not depend solely on Dutch efforts. Any reduction of emissions contributes to the prevention of dangerous climate change and as a developed country the Netherlands should take the lead in this.
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 idea of filing a climate case against the government came from Roger Cox, a Dutch lawyer, who used the principles of tort law and human rights law as basis for mounting the suit.
The tort law argument is as follows : the government policy of cutting GHG emissions by only 16% by 2020 is a negligent, thus, unlawful, act of the State, since it contributes to a situation of endangerment of Dutch society and its territory. Urgenda and its co-plaintiffs are not asking for compensation but an order (based on sec. 296 of Book 3 of the Dutch Civil Code) to reduce emissions with a view to preventing future damage and injury. For the purpose of such an order, the threat of damage- based on the principle of prevention (in Philippine setting, the precautionary principle)– is sufficient.
The human rights law argument is more elaborated, as it is based on a UN Human Rights Council Resolution(Resolution 10/4 of 2009), which found that, the danger with climate change, especially a climatic change of more than 2 degrees, poses a threat to human rights around the world, most notably to the right to life and the right to health. It then looked to the regional human rights treaty, the European Court of Human Rights (ECHR), particularly its right to life (Article 2 of the ECHR) and the right to health and respect for private and family life (Article 8 of the ECHR). Urgenda et al argued the State is in breach of these articles of the ECHR, which have a direct bearing on Dutch law under Articles 93 and 94 of the Dutch Constitution. Such human rights violations qualify as an infringement of a right and also as a breach of a statutory duty.