THE URGENDA CLIMATE CHANGE CASE: HOW THE DUTCH SUPREME COURT INTERPRETED THE ECHR TO INCORPORATE PROTECTIONS FROM THE DANGERS OF CLIMATE CHANGE.

• Author: Lukacs, Adam

I INTRODUCTION

Climate change has been recognised as a significant existential threat to humanity. (1) This was acknowledged by the Dutch Supreme Court in Netherlands v Urgenda, in which the central issue was whether the Netherlands was obliged to reduce, by the end of 2020, the emissions of greenhouse gasses originating from the Netherlands by at least 25% compared to 1990. (2) The Urgenda Foundation sought an order to this effect in the District Court in 2015, which allowed Urgendas claim. (3) In 2018, the Court of Appeal confirmed the District Court's judgment. The Supreme Court upheld the lower courts' judgments and ordered that the Netherlands must reduce carbon emissions by at least 25% by 2020.

II FACTS

Urgenda and the State both accepted the view of climate science that a genuine threat exists that the climate will undergo dangerous change in the coming decades. (4) It was accepted by both parties that emissions of greenhouse gasses is leading to the planet warming, which is resulting in a variety of hazardous consequences such as the erosion of ecosystems and the jeopardisation of habitable areas and human health. (5) It was also accepted that climate science reached a high degree of consensus that the warming of the earth must be limited to no more than 2[degrees]C, that safe warming of the earth must not exceed 1.5[degrees]C and that if greenhouse gas emissions were not sufficiently reduced, the possibility that dangerous climate change will materialise in the near future cannot be excluded. (6) These facts were not disputed in cassation, nor did the State challenge the Court of Appeal's finding that the adverse consequences of climate change pose a serious risk to the lives of Dutch citizens. (7) However, the State's primary objection was that, on their view, articles 2 and 8 of the European Convention on Human Rights (8) (which the Netherlands is party to) do not oblige the State to ensure that the volume of greenhouse gases being emitted at the end of 2020 is 25% less than it was in 1990. (9)

III THE IMPUGNED DECISIONS

The District Court found that given the severity of the impact of climate change and the significant chance that dangerous climate change will occur unless mitigating measures are taken, the State has a duty to take mitigating measures. (10) The District Court ordered the State to limit the combined volume of Dutch annual greenhouse gas emissions by at least 25% by the end of 2020 compared to 1990. (11) On appeal, the Court of Appeal found that the State has a positive obligation, pursuant to article 2 of the ECHR to protect the lives of citizens within its jurisdiction and pursuant to article 8 of the ECHR, that the State must protect the right to home and family life of its citizens. (12) The Court of Appeal concluded that the threat posed by climate change poses a serious risk that the current generation of Dutch inhabitants will be confronted with losing their lives or having their family lives disrupted, and that articles 2 and 8 of the ECHR imply that the State has a duty to protect against this threat. (13) In order to achieve this, the Court of Appeal ordered that a 25% reduction in emissions should be the minimum amount that the State must implement in order to meet the 1.5[degrees]C target, as the Netherlands had done too little to prevent dangerous climate change by not doing so. (14)

IV THE APPEAL

Urgenda claimed that the Netherlands' greenhouse gas emissions are contributing to dangerous climate change and that the Netherlands' share of worldwide emissions is excessive. (15) Urgenda argued that this is unlawful under national and international law, and that the State is obliged to prevent dangerous climate change and to reduce Dutch emissions by 25-40% compared to emissions in 1990, in accordance with the target in the Fourth Intergovernmental Panel on Climate Change (TPCC) Report (AR4'). (16) Urgenda also argued that articles 2 and 8 of the ECHR impose a duty of care on the State to reduce the level of emissions to prevent dangerous climate change. (17) The State asserted in defence that there is no basis in either national or international law for a duty that legally requires the State to take measures in order to achieve the 25-40% reduction target. (18) The State argued that the AR4 target was not legally binding and that articles 2 and 8 of the ECHR do not imply an obligation for the State to take mitigating or other measures to counter climate change. (19)

The State appealed the Court of...