Urgenda Foundation and 886 Individuals v. The State of the Netherlands: The Dilemma of More Ambitious Greenhouse Gas Reduction Action by EU Member States

DOIhttp://doi.org/10.1111/reel.12146
Date01 April 2016
AuthorMarjan Peeters
Published date01 April 2016
Case Note
Urgenda Foundation and 886 Individuals v. The
State of the Netherlands: The Dilemma of More
Ambitious Greenhouse Gas Reduction Action by
EU Member States
Marjan Peeters*
The remarkable decision of a Dutch lower civil court
ordering the State of the Netherlands to reduce its
greenhouse gas emissions by 25% by 2020 compared
to 1990 levels has attracted ample attention across the
world. The court decision deals with the fundamental
question of the extent to which a civil court can inter-
vene in environmental decision making, particularly
where this concerns the national policy of a European
Union (EU) Member State. This case note considers the
court decision from an EU law perspective. Although
from an environmental perspective ambitious climate
action is to be very much praised, several critical legal
issues merit scholarly discussion, particularly regard-
ing the competence of the Dutch court to decide the
case, the need for a preliminary reference to the Court
of Justice of the European Union, the right under-
standing of complex EU climate law, but also regard-
ing judicial activism and the way climate science is
used in courtrooms.
INTRODUCTION
On 24 June 2015, a Dutch lower civil court laid down a
remarkable decision that attracted ample attention
across the world: it ordered the State of the Netherlands
to reduce its greenhouse gases more ambitiously.
1
More
precisely, the court ruled that the State has to decrease
its greenhouse gas emissions by 2020 by 25% compared
to 1990 emissions levels. The judicial request for this
order was submitted by a Dutch nongovernmental
organization (NGO) called Urgenda, relying on a speci-
f‌ic provision of the Dutch Civil Code allowing NGOs to
have standing for collective claims. Urgenda also repre-
sented 886 individuals submitting the same emission
reduction claim.
2
The court decision deals with the fun-
damental question of the extent to which a civil court
can intervene in decision making in environmental
matters, particularly where this concerns the national
policy of a European Union (EU) Member State. Scien-
tif‌ic reports by the Intergovernmental Panel on Climate
Change (IPCC) and also (non-binding) international
and EU political statements played an important role in
the reasoning of the court.
3
While the court decision raises several legal questions,
including on matters of Dutch constitutional and civil
law, this case note will discuss the decision specif‌ically
from an EU law perspective.
4
The core question is
whether a national court may consider compliance by
an EU Member State with EU legislation unlawful
under domestic law, thus implying that compliance
with domestic law can only be achieved with more
ambitious action.
THE STATE AS DEFENDANT
BEFORE THE CIVIL COURT
The court decision is unique, since it is the f‌irst time a
domestic court has ordered a State to reduce its
national greenhouse gas emissions. As far as is known
* Corresponding author.
Email: marjan.peeters@maastrichtuniversity.nl
1
Urgenda Foundation and 886 Citizens v. The State of the Nether-
lands, [2015] C/09/456689/HA ZA 13-1396 (‘Urgenda’). An English
translation of the decision can be found at: <http://uitspraken.
rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196>.
2
Ibid., at paragraph 2.4.
3
For a concisediscussionof the case, see J. Verschuuren,‘Spectacular
Judgment by Dutch Court in Climate Change Case’ (2015), found at:
<https://blog.uvt.nl/environmentallaw/>.
4
Legal publications in English include: J.H. Jans and K. de Graaf,
‘The Urgenda Decision: Netherlands Liable for Role in Causing
Dangerous Global Climate Change’, 27:3 Journal of Environmental
Law (2015), 517; L. Bergkamp and J.C. Hanekamp, ‘Climate Change
Litigation against States: The Perils of Court-made Climate Policies’,
24:5 European Energy and Environmental Law Review (2015), 101;
J. Lin, ‘The First Successful Climate Negligence Case: A Comment on
Urgenda Foundation v. The State of the Netherlands (Ministry of
Infrastructure and the Environment)’, 5:1 Climate Law (2015), 65;
J. van Zeben, ‘Establishing a Governmental Duty of Care for Climate
Change Mitigation: Will Urgenda Turn the Tide?’, 4:2 Transnational
Environmental Law (2015), 339. Several case notes and commen-
taries in Dutch have also been published.
ª2016 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
123
RECIEL 25 (1) 2016. ISSN 2050-0386 DOI: 10.1111/reel.12146
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