Climate Change Litigation: Urgenda Update

In Urgenda Foundation v. The State of the Netherlands (2015) (Urgenda), the State of Netherlands was found by the court to have an affirmative duty toward its citizens to take action against climate change (see previous posts on the topic here and here). Since the initial decision, plaintiffs in other jurisdictions have used it as a framework to bring court challenges alleging their respective governments' failure to mitigate the deleterious effects of greenhouse gas (GHG) emissions.

The Original Urgenda Decision Works Its Way Through the Courts

The Dutch Urgenda - "Urgent Agenda" - Foundation was founded in 2007 to promote sustainability, including calling for 100% sustainable energy in the Netherlands by 2030 (Report 2030). Representing 886 Dutch citizens at the Hague District Court in June 2015, the Urgenda Foundation successfully argued that the Dutch government had failed to implement GHG mitigation policies that would achieve the goal of decreasing a 2°C rise in global temperatures, thereby acting hazardously negligent toward its citizens. The plaintiff had to first establish that the government owed a duty of care, then determine the standard of that duty.

The court analyzed domestic and international law to come to its conclusion, including Article 21 of the Dutch Constitution, the UN Climate Change Convention, the international "no-harm" principle, the EU Emissions Trading System directive and Articles 2 and 8 of the European Convention on Human Rights (ECHR) - all of which import obligations on the government that the plaintiffs argued were more than mere formalities. The court did not find the ECHR to be applicable, but did find that an interpretation of the Dutch court's case law shows an increasing "awareness of a link between the protection of the rights and freedoms of individuals and the environment." The court held that the government breached their duty when it implemented improper GHG reduction measures.

The government appealed on all grounds to the Court of Appeal. The Urgenda Foundation cross-appealed on the grounds that they should have been able to rely on Articles 2 (the right to life) and 8 (the right to respect for private and family life) of the ECHR. Siding with Urgenda, the Court of Appeal held that "the State [was] acting unlawfully (because in contravention of the duty of care under Articles 2 and 8 [ECHR]) by failing to pursue a more ambitious reduction as of end-2020, and that the State should reduce...