Taking Climate Change to Court - Pacific Standard

Taking Climate Change to Court

Frustrated by the slow pace of progress, Dutch citizens have decided to sue their own government over climate change.
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Urgenda's case went before a district court at The Hague today. The hearings cap two and half years of legal proceedings, but a final decision could still take up to six months. (Photo: Chantal Bekker/Urgenda)

Urgenda's case went before a district court at The Hague today. The hearings cap two and half years of legal proceedings, but a final decision could still take up to six months. (Photo: Chantal Bekker/Urgenda)

Today, a coalition of 900 Dutch citizens will join a non-profit organization to face off against their government in a courtroom at the Hague. The charges? That the Netherlands has been too soft on climate change.

The Dutch case highlights a growing global effort to spur governments to action on climate change through legal means. Frustrated by the slow pace of international negotiations, which have yet to produce concrete commitments from the world’s biggest polluters after more than 20 years of effort, some activists have simply grown tired of waiting. And increasingly, they have turned to the courts for help.

The Urgenda Foundation—a sustainability and innovation organization—is leading the charge in a suit against the Dutch state, on the grounds that its sluggish efforts to wean the country from fossil fuels have endangered its citizens. Urgenda and the individuals who have joined the case argue that the government has acknowledged the perils of climate change, but has failed to take the measures needed to avert dangerous levels of warming.

This inaction, the plaintiffs claim, contributes to climate changes that will cause the sea level to rise, as well as flooding, heat waves, droughts, and the spread of tropical disease, among other consequences. These effects will harm Dutch citizens and threaten their ability to enjoy basic human rights, which are protected under Dutch and European Union laws.

Outside the U.S., Urgenda’s effort represents the first attempt to use legal avenues to tackle such broad policy issues.

“It will affect the life and health of all of us,” says Roger Cox, one of the lawyers representing Urgenda whose book, Revolution Justified, laid the legal blueprint for the case. “Basically, there’s no escaping it.”

But Urgenda’s team isn’t gunning for money; they looking for change. They want to achieve what international treaties have so far failed to accomplish: to force the country to reduce the amount of greenhouse gases it spews into the atmosphere by 25 to 40 percent below 1990 levels by 2020. The Intergovernmental Panel on Climate Change recommends such cuts for developed countries, like the Netherlands, if the world hopes to avoid more than two degrees of global warming.

“Countries like Denmark and Germany and Sweden, for instance, have these as targets,” Cox says, which shows it can be done. However, current Dutch policy aims for only a 16 percent reduction by 2020, and that’s the problem.

Urgenda argues that the Netherlands has an obligation to slash its emissions more aggressively because it has signed both the United Nations Framework Convention on Climate Change in 1992, which agreed to limit "dangerous" climate change, and the Cancun Agreement in 2010, which marked the climate change threshold at two degrees. The Netherlands has also accepted the scientific findings of the IPCC on how to avoid crossing the threshold.

Ralien Bekkers, one of the 900 co-plaintiffs in the case and a Master's student in environmental management at the Yale School of Forestry and Environmental Studies, says she doesn’t think of this as a fight between the Dutch government and it’s people, because they ultimately need to work together. But she says the case is important “to show people are worried and to show that they demand action on climate change.”

Bekkers, 23, says her generation has a special interest in the outcome of the case because they will be the ones left to deal with the consequences of inaction down the road. “I am honestly really worried as a young person who is growing up in the world,” she says. “There are so many short-term interests that dominate any decision-making process, I really feel that future generations need some kind of a voice.” Urgenda estimates that about 30 percent of the plaintiffs are under 30 years old.

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In the United States, many previous lawsuits have attempted to use litigation to incite government action on climate change, mostly without success, says Michael Gerrard, the director of the Sabin Center for Climate Change Law at the Columbia Law School. (However, a few cases coordinated by the Oregon-based non-profit, Our Children’s Trust, which invoke arguments similar to those in the Urgenda case, continue to claw their way through the court system.) Outside the U.S., Gerrard says, Urgenda’s effort represents the first attempt to use legal avenues to tackle such broad policy issues.

Nine hundred Dutch citizens have joined Urgenda's case as co-plaintiffs, many of whom attended today's hearings in person. (Photo: Chantal Bekker/Urgenda)

Nine hundred Dutch citizens have joined Urgenda's case as co-plaintiffs, many of whom attended today's hearings in person. (Photo: Chantal Bekker/Urgenda)

If a case like this stands a chance of winning anywhere, it’s in the Netherlands, according to Stephen Humphreys, an associate professor of international law at the London School of Economics. For one, the low-lying country faces a direct threat from rising sea levels. More importantly, however, he says Dutch courts have demonstrated a willingness to take bold stances on issues like this. “The courts are very committed to the rule of law—and especially the rule of international law,” Humphreys says, “more so than some other countries.”

Urgenda’s is also the first court case to invoke tort law and human rights law as a basis for pursuing climate action, an approach that is gaining popularity among legal scholars. The latter pillar of the lawsuit rests on the fact that the Cancun Agreement—signed by 195 countries, including the Netherlands, in 2010—formally acknowledged that climate change poses a threat to global human rights, according to Cox’s case notes, which were published in the Utrecht Journal of International and European Law.

“You cannot ruin your world and accept that this climate change will have human rights infringement effects all over the world and then decide that there’s no role for the law to play,” Cox says.

“If courts in the Netherlands hold that these principles apply and can be enforced, I’m sure we would see some more attempts in many other countries.”

Interestingly, the Dutch government actually agrees with Urgenda on many parts of the case, according to the Urgenda lawyers. Representatives of the state don’t debate any of the scientific aspects of climate change, or the fact that greater emissions reductions are needed to avoid dangerous warming. (The Dutch Ministry of Infrastructure and the Environment declined to comment for this story.)

Cox says the state instead argues that climate policy is a political issue, not a legal one—in other words, that the courts can’t compel the government to act—and that the country has already done what it can. (The Netherlands is on track to meet its own 16 percent reduction target for 2020). Humphreys adds the state may also claim that Urgenda has not adequately considered the adaptive measures the government has taken to protect its citizens from the impacts of climate change. Such measures could show that the government has in fact undertaken its “duty of care,” which Urgenda argues it has neglected by adopting looser emissions targets.

After today’s hearings, in which both sides will summarize the lengthy written summonses they submitted to the court over the last year, it could be another six months until the court announces its final decision. But Cox, for his part, is optimistic. “We feel very confident that we will get a declaration, first, that current emissions levels are unlawful because of the danger they create. And we also feel that we have a very good chance of getting the court to order our government to reduce at least 25 percent of the emissions compared to 1990 levels,” he says.

But will a win for Urgenda and the Dutch citizens pave the way for a legal solution to climate change? It will certainly have a ripple effect, says Gerrard, director of the Sabin Center for Climate Change Law. “If courts in the Netherlands hold that these principles apply and can be enforced, I’m sure we would see some more attempts in many other countries,” he says. In fact, a group in Belgium has already launched a similar lawsuit modeled after Urgenda’s case, and Cox says others are contemplating similar actions.

However, Humphreys says lawsuits can’t replace a broad international agreement of the sort that will be discussed at the climate talks in Paris later this year. After all, the Netherlands only contributes a fraction of the greenhouse gases that build up in the atmosphere every year, and reining in emissions will take a coordinated global effort. In addition, such lawsuits—which hold governments responsible for harm to their own citizens—may not be able to address the human rights infringements suffered by citizens of outside countries.

In the mean time, though, Humphreys doesn’t think the legal challenges will stop. "I think we will see litigation as long as the policy process doesn’t provide any clarity," he says. And although such cases are unlikely to win in most places, he says, they are still worth pursuing. "What we hope for from these sorts of cases is that they prod governments to go and do what they should be doing anyway."

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