The Dutch Climate Case: Beginning Of A New Era Of Climate Litigation?

In an worldwide first, the Hague District Court has ordered the Dutch government to cut its greenhouse gas emissions (GHGs) by at least 25% compared to 1990 levels by the end of 2020. The decision, an English translation of which can be found here, has been widely reported and discussed (including in an interview on CBC Radio's The Current with Dianne). It has rekindled hopes around the world that courts can spur governments into taking serious steps to deal with climate change.

Could a similar case be brought successfully in Canada?

Background

The suit was brought against the Dutch government by Urgenda, a Dutch foundation dedicated to sustainability, and nearly 900 individuals.

The Plaintiffs argued that the Dutch government owes its citizens a duty of care to protect them from severe but avoidable harm. The Dutch government has already accepted the scientific findings of the Intergovernmental Panel on Climate Change, the United Nations Environmental Programme, and several Dutch agencies that warming of more than 2° C above pre-industrial temperatures will likely entail catastrophic consequences for humans and the environment, including the Dutch. The Dutch government also accepts that its targets for reducing greenhouse gas ("GHG") emission levels (about 17% below 1990 levels by 2020) would not proportionately contribute towards staying below this 2° C threshold. At an international meeting, Holland had signed a communiqué stating that cuts of at least 25% to 40% by 2020 were necessary.

Urgenda argued that the Dutch state had therefore breached a duty of care owed to them (and to Dutch society generally), had infringed their rights under the European Convention on Human Rights ("ECHR"), and had contravened various obligations under international law and the Dutch Constitution. The government argued that its commitments were fair compared with those made by other countries, and that the court had no legitimate right to dictate climate change and economic policy to a democratically elected government.

The Court undertook an exhaustive examination of the current science on climate change, which both sides accepted. It also reviewed the legal and policy frameworks developed at the national, European Union, and international levels, including the United Nations Framework Convention on Climate Change ("UNFCCC"), the Kyoto Protocol, the Treaty on the Functioning of the European Union ("TFEU"), and various customary principles of international...