The State of the Netherlands v Urgenda Foundation: The Hague Court of Appeal upholds judgment requiring the Netherlands to further reduce its greenhouse gas emissions

• Date: 01 April 2019
• Published date: 01 April 2019
• Author: Jonathan Verschuuren
• DOI: http://doi.org/10.1111/reel.12280

CASE NOTE

The State of the Netherlands v Urgenda Foundation: The Hague

Court of Appeal upholds judgment requiring the Netherlands

to further reduce its greenhouse gas emissions

Jonathan Verschuuren

Correspondence

Email: j.m.verschuuren@tilburguniversity.edu One of the world's most successful climate litigation cases thus far, the remarkable

Urgenda ruling by a Dutch Court in 2015, survived appeal. In October 2018, the

Court of Appeal of The Hague rejected all of the State's objections, including that

on the alleged infringement of the balance of powers principle. The court confirmed

that, when so asked by individuals or nongovernmental organizations, courts are

obliged to assess government actions (including policies) against human rights obli-

gations. By setting the required outcome of policies (at least 25 percent emissions

reduction by the end of 2020), the court left it up to the Dutch Government and

Parliament to discuss which policy interventions to adopt to achieve this outcome.

The Court of Appeal also confirmed, and sometimes even put greater emphasis on,

a number of important elements of the Urgenda ruling, such as the role of the pre-

cautionary principle, the issue of causality (including the ‘drop in the ocean’argu-

ment put forward by the State) and the potential role of climate engineering.

1

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INTRODUCTION

On 9 October 2018, the Court of Appeal of The Hague rendered its

judgment in the Urgenda case.

1

The ruling concerned an appeal lodged

against a decision by the Hague District Court.

2

In 2015, the lower

court had decided that the Dutch State had acted negligently and

therefore unlawfully by implementing a policy that ‘only’pursued the

reduction targets imposed upon the Netherlands by European Union

(EU) law for 2020, namely: a 21 percent reduction for sectors covered

by the EU emissions trading system (ETS) (i.e. large industrial installa-

tions and power stations) and a 16 percent reduction for non‐ETS

sectors (including, amongst others, transport and agriculture).

3

The

District Court held that the State had not directly breached its obliga-

tions under a range of instruments, including the United Nations

Framework Convention on Climate Change (UNFCCC), Kyoto Proto-

col, various EU climate law sources,

4

the European Convention on

Human Rights (ECHR) and the Dutch Constitution. It did, however,

find that the State had breached the standard of due care towards its

citizens, which under Dutch tort law constitutes an unlawful act. The

District Court had therefore ordered the Dutch State to achieve at

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© 2019 The Author. Review of European, Comparative & International Environmental Law published by John Wiley & Sons Ltd.

1

The State of the Netherlands v Urgenda Foundation, The Hague Court of Appeal (9 October

2018), case 200.178.245/01 (English translation) <https://uitspraken.rechtspraak.nl/inziend

ocument?id=ECLI:NL:GHDHA:2018:2610>(State v Urgenda).

2

Urgenda Foundation v The State of the Netherlands, District Court of The Hague (24 June

2015), case C/09/456689/HA ZA 13‐1396 (English translation) <https://uitspraken.recht

spraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196>. See extensively M Peeters,

‘Urgenda Foundation and 886 Individuals v. The State of the Netherlands: The Dilemma of

More Ambitious Greenhouse Gas Reduction Action by EU Member States’(2016) 25

Review of European, Comparative and International Environmental Law 123.

3

See Peeters (n 2).

4

Both primary EU law, such as Articles 191 and 193 of the Treaty on the Functioning of

the European Union (Consolidated Version of the Treaty on the Functioning of the Euro-

pean Union [2008] OJ C115/47 (TFEU)); and secondary law, such as the EU emissions trad-

ing Directive (Directive 2003/87/EC of the European Parliament and of the Council of 13

October 2003 establishing a scheme for greenhouse gas emission allowance trading within

the Community and amending Council Directive 96/61/EC) [2003] OJ L275/32 and the

Effort Sharing Decision (Decision No 406/2009/EC of the European Parliament and of the

Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas

emissions to meet the Community's greenhouse gas emission reduction commitments up to

2020 [2009] OJ L140/126.

DOI: 10.1111/reel.12280

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wileyonlinelibrary.com/journal/reel RECIEL. 2019;28:94–98.