Urgenda and the separation of powers: will the courts solve the climate issue?

Climate cases have become a permanent feature of the news. A previous blog post, ‘Climate cases and the trias politica’, already addressed this issue. That blog post contains, among other things, an analysis of the Dutch Urgenda judgment at first instance. Since the Court of Appeal of The Hague recently upheld the first-instance judgment, it is useful to consider it once more. What exactly did the Court uphold and what are the consequences? Is the judiciary walking the tightrope of judicial activism? This analysis is also relevant in view of the climate case pending in our country.

At first instance, the Urgenda foundation was found in the right. In a judgment of 24 June 2015 the Dutch State was ordered to reduce greenhouse gas emissions by the end of 2020 by at least 25% compared to 1990. Under Article 21 of the Dutch Constitution the State has a duty of care to protect and improve the environment. The court found, however, that the State had acted negligently and therefore unlawfully by assuming an emission reduction of less than 25% for 2020. The court held that “de rechter ten volle moet beoordelen of de Staat voldoende zorg heeft betracht maar dat dit niet wegneemt dat de Staat zelf mag uitmaken hoe hij zijn zorgplicht ten uitvoer brengt.”

The State announced that it would appeal, and on 9 October 2018 the judgment of the Court of Appeal of The Hague followed. It is interesting to set out this judgment and examine its reasoning, also in light of other pending cases such as the Belgian climate case. We will first look at the grounds of appeal of the State and of the Urgenda foundation and then turn to the Court's assessment. It should be noted that the State has decided to lodge an appeal in cassation with the Supreme Court (Hoge Raad). There is therefore no final judgment at the highest instance yet.

Dutch ingenuity

The Dutch State disagreed with the judgment and raised 29 grounds of appeal in order to submit the dispute in full to the Court. Urgenda had one ground of appeal, in which it disagreed with the ruling that the foundation could not rely on Articles 2 and 8 ECHR.

The Court upholds Urgenda's ground of appeal. Dutch law determines access to the Dutch courts, according to the Court. If individuals can rely under Dutch law on Articles 2 and 8 ECHR, which have direct effect, Urgenda can consequently do so on their behalf, the Court holds.

As regards the State, the Court emphasises the finding in paragraph 42 of the judgment that “wanneer de overheid weet dat er sprake is van een reëel en onmiddellijk dreigend gevaar, de Staat preventieve maatregelen moet nemen om de aantasting zoveel mogelijk te voorkomen.” The Court then addresses the question whether there is a real and imminent threat here.

In paragraph 43 of the judgment the Court relies on the documents, facts and circumstances put forward by the parties to the proceedings. From these the Court concludes that there is “een reële dreiging van een gevaarlijke klimaatverandering, waardoor er een ernstig risico bestaat dat de huidige generatie ingezetenen zal worden geconfronteerd met verlies van leven en/of verstoring van het gezinsleven”. According to the Court, the government's failure to take protective measures in time constitutes a violation of the positive obligation to protect the lives of citizens. It is remarkable that the Court takes the human rights route and thus deftly sidesteps an obstacle in liability law. The ‘conditio sine qua non’ doctrine applicable in the Netherlands in the context of liability is indirectly set aside. The Court chooses to set aside this rule from Article 6:98 of the Dutch Civil Code, which deals with non-contractual liability, and to apply a less demanding causation requirement. In a case of threatened damage, the link between the wrongful conduct of the government and the damage is indeed of lesser importance.

The Court must further rule on whether an order can be imposed on the State to achieve that 25% emission reduction. Does the government act unlawfully if the reduction is not achieved? The Court briefly notes that postponing the reduction leads to greater risks for the climate and that the reduction obligation essentially flows from the State's duty of care.

The Dutch State argued in this respect that a “waterbed effect” would arise. By this the State referred to the risk that if one State makes an effort, other states would be less strict about the rules because the emissions cap for the ETS sectors actually applies to the EU as a whole. The Court puts this argument into perspective and points out that the Netherlands' reduction effort still lags far behind that of other EU member states. The Court concludes that every reduction of greenhouse gas emissions contributes to preventing dangerous climate change. From the perspective of a strict interpretation of Dutch liability law, this reasoning can be questioned. In any event, it is remarkable that the judiciary in this case tries, in a relatively activist manner, to compensate for the inaction of the executive.

The defence of the Dutch State

In its statement of grounds of appeal the State drew attention to the risk of carbon leakage (the risk that companies will move their production elsewhere to escape greenhouse gas reduction obligations). However, the State did not substantiate this risk any further, so there was no reason for the Court to consider it well founded. It should indeed be noted that other EU member states pursue a stricter climate policy than the Netherlands. In this passage the Court therefore criticises the State, which takes the easy way out and offers poorly substantiated arguments.

The foregoing compels us to stress that this is a civil procedure, which implies that the judge is in principle ‘passive’. In that case the judge can only rule on what the parties put forward. As said, that is precisely where the shoe pinches: the Dutch State could have paid more attention to substantiating its arguments. Another example illustrates this: regarding the argument on the consequences of climate change, the Court states that the Dutch State ignores that the consequences of global warming can be adequately prevented. At UN level, within the EU and in the Netherlands, various treaties have been concluded, agreements made and arrangements adopted. These are discussed in the contested judgment in paragraphs 2.34 to 2.78. Here, too, the Court once again criticises the Dutch State.

Finally, the Court confirms that Urgenda's claim does not lead to an obligation to enact legislation, since there are “vele mogelijkheden zijn om het met het bevel beoogde resultaat te bereiken zonder dat formele of materiële wetgeving tot stand wordt gebracht”. Once again the judgment notes that the Dutch State missed the opportunity to rebut this reasoning. In summary, the Dutch State receives a serious rebuke from the Court of The Hague. The lack of substantiation and depth is denounced repeatedly.

Urgenda and the trias politica

The Dutch State argued that there would be a violation of the ‘separation of powers’ if the court were to determine the policy choices relating to the reduction of greenhouse gas emissions. C. Backes and G. van der Veen take the view that the Court does not cross a line here, since the Court points out to the State that it is violating human rights and that measures may therefore be imposed.

There are also dissenting views. P. Gillaerts, for example, considers that the Court adopts a somewhat hypocritical attitude. On the one hand, the Court itself points to the government's wide margin of appreciation in fulfilling its duty of care. On the other hand, it single-handedly reduces that margin of appreciation by refusing in advance to regard negative emission technologies or adaptation measures as fully-fledged alternatives.

It is clear that differences of opinion may arise as to whether or not the Court disregards the principle of the separation of powers. Starting from a strict reading of the separation of powers, Gillaerts could count on support. It is, however, essential to understand that the Dutch constitutional legislator did not have such a rigid conception in mind. Rather than a strict separation, there is a distribution of powers among the branches of the state. Since the Dutch Constitution provides for various control mechanisms, P. Bovend'Eert argues that checks and balances are an inherent part of the separation of powers.

In our view, it is therefore acceptable for the judiciary to intervene when the executive, in this case the Dutch State, fails to implement its international obligations. Moreover, the Court does not order which concrete measures must be taken to reduce greenhouse gas emissions. The State retains its policy discretion and is not obliged to achieve this through new formal or substantive legislation. The Court thus does not go as far as an order to legislate. The Court does, however, make use of ingenious reasoning and is fairly bold. Just as M. Loth and R. van Gestel concluded after the first-instance judgment, we too, after the appeal judgment, see no reason to conclude that the trias politica has been violated “wanneer de rechter het bestuur dwingt tot het respecteren van een minimumnorm die uit het eigen klimaatbeleid is voortgevloeid en waar zonder een duidelijke rechtvaardigingsgrond van wordt afgeweken.”

Belgian climate case

Not only in the Netherlands, but also in Belgium there is particular attention for climate targets. On Sunday 2 December, 65,000 citizens marched through the streets of Brussels to take part in the climate march ‘Claim The Climate’. In addition, a climate case is also pending in Belgium. On 1 April 2014 the non-profit association Klimaatzaak served formal notice on the Federal State, the Flemish Region, the Walloon Region and the Brussels-Capital Region. In its formal notice the association requested consultation with these authorities within a period of four weeks. Although consultations took place, no consensus was reached. The association therefore decided on 27 April 2015 to summon the four authorities to court.

The domestic legal order of Belgium, however, has a slowing effect on the handling of the climate case. Because of a language issue, the climate case has already been delayed by more than three years. At the introductory hearing before the French-speaking court of first instance in Brussels, the Flemish Region requested that the language of the proceedings be changed to Dutch. However, the judgment delivered by the French-speaking court of first instance in Brussels on 25 September 2015 did not grant the change of the language of proceedings to Dutch. The Flemish Region did not accept this ruling and brought proceedings before the district court. Here too the Flemish Region did not succeed. The judgment delivered by the district court on 8 February 2016 expressly held that the language of the proceedings remains French. Nor, according to the court, can the proceedings be split. The case must be dealt with as a whole in respect of all the authorities. Flemish Minister Joke Schauvliege nevertheless lodged an appeal in cassation against the judgment of the district court. The Court of Cassation dismissed the appeal in its judgment of 20 April 2018 and confirmed the ruling of the district court of 8 February 2016.

The judgment of the Court of Cassation has now definitively ended the language issue. The proceedings will thus be conducted before the French-speaking court of first instance in Brussels. Nevertheless, the end is not yet (by far) in sight. Each party may subsequently appeal against the judgment yet to be delivered. After that, the extraordinary remedy of an appeal in cassation may still be used. It remains to be seen whether the Belgian judiciary will follow the Dutch path in the Urgenda case. That would indeed mean a reversal of current Belgian case law. One may point, for example, to the environmental injunction action brought by Greenpeace against the Flemish Region. Greenpeace argued that the Flemish Region was violating the Air Quality Directive by exceeding NO2 limit values. The judge in summary proceedings did not want to venture onto thin ice. The order of 10 October 2018 pointed to the government's policy discretion and the government was obliged to draw up an air quality plan. However, the judge did not order which specific measures that plan should contain.

Conclusion

The approach of the Dutch judiciary in the Urgenda case could be called bold, but on the other hand it is not spectacular in a civil-law trial in the Netherlands. The Court in casu takes the human rights route and concludes that the government has a duty of care. There is thus some judicial ingenuity here and certainly some judicial activism. Whatever the ruling of the – so far less bold – Belgian court will be, the Belgian climate case will in any event be important for the legal and political debate on climate protection and the role of the courts in the climate issue.

Bibliography

GILLAERTS P., “Klimaatzaken tegen de overheid: balanceren tussen rechtstaat en rechterlijk activisme”, De Juristenkrant, 2018, nr. 376, 1.

SOETE A., SCHOUKENS H., “Klimaatverandering in de rechtbank, de rechter als scherprechter bij een falend milieubeleid?”, NJW, 2016, nr. 338, 186-203.

DE KEZEL E., “Verschuivend perspectief bij aansprakelijkheidsrecht bij vragen van milieu- en gezondheidsschade”, De Juristenkrant, 2018, nr. 377, 14.

BRANS H. P., GILISSEN H. K., KRONEMEIJER E., ea, “Naar aansprakelijkheid voor (de gevolgen van) klimaatverandering?”, 2012, Den Haag, Boom Juridische uitgevers.

BACKES C., VAN DER VEEN G., Noot bij ECLI:NL:GHDHA:2018:2591, AB Bestuursrecht, 2018/417.

VAN GESTEL R. en LOTH. M., “Urgenda: roekeloze rechtspraak of rechtsvinding 3.0?”, NJB, 2015, afl. 37, 2598-2605.

BOVEND’EERT P., “Inleiding constitutioneel recht”, 2015, Wolters Kluwer.

https://www.urgenda.nl

https://www.klimaatzaak.eu/nl

https://www.bondbeterleefmilieu.be/artikel/klimaatzaak-nederland-belangrijk-juridisch-precedent

http://climate-express.be/claim-the-climate/

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