Recently, two cases State of Netherlands v Urgenda (December 20, 2019) and Juliana v. United States (January 17, 2020) highlight the contradictory role of the courts as it relates to reductions in greenhouse gas emissions.
The Urgenda decision, issued by the Supreme Court of the Netherlands, upheld lower court decisions in 2015 and 2018 that required the national government to “reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990.”
On June 24, 2015, The Hague District Court rendered a historical judgment. The Court of The Hague found the Dutch government owed a tort duty of care to its citizens, requiring the government to rein in carbon emissions by 25 percent by 2020. This ruling marked the first climate change lawsuit in which a domestic court found that its national government had a duty of care to citizens, requiring the state to reduce carbon emissions.
The Hague District Court found that the Netherlands must do more to avert the imminent danger posed by climate change in view of its duty of care to protect and improve the living environment. In addressing the fact that Dutch contribution to global climate emissions is 0.5%, the Court said: “[I]t has been established that any anthropogenic greenhouse gas emission, no matter how minor, contributes to an increase in CO2 levels in the atmosphere and therefore to hazardous climate change.” at para. 4.79. The Court also found a sufficient causal link “can be assumed to exist” between Dutch emissions, global climate change, and the effects. The Court determined the Dutch government must reduce CO2 emissions by a minimum of 25% (compared to 1990) by 2020 to fulfill its obligation to protect and improve the living environment against the imminent danger caused by climate change.
On September23, 2015, the Dutch government appealed the case which was further appealed to the Supreme Court of the Netherlands and its decision released on December 20, 2019.
On October 9, 2018, The Hague Court of Appeal made an unprecedented ruling in finding that the preservation of a stable climate system is a fundamental human right and ordered the Dutch government to meet its commitment of reducing its greenhouse gas emissions.
The Court of Appeal confirmed that the Dutch government had to meet its commitment on cutting greenhouse gas emissions and ordered it to ensure reductions of a minimum of 25 percent from 1990 levels by 2020 as opposed to the 17 percent goal being implemented. The Court found that anything less represented a breach of promises made in the Paris Agreement of 2015, would not be a reasonable and fair contribution for meeting internationally agreed upon emissions targets, and violated the human rights of the 886 citizens who initiated the case.
After hearing scientific evidence from the Intergovernmental Panel on Climate Change (“IPCC”) reports the Dutch Court concluded “a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life.” and found that “the state has a duty to protect against this real threat.” The Court of Appeal confirmed that the State (i.e. the Kingdom of the Netherlands) has a duty of care to its citizens pursuant to Articles 2 and 8 of the European Convention on Human Rights (“ECHR”) to reduce greenhouse gases by at least 25 percent, relative to the 1990 emission level. All of the defences raised by the State were dismissed.
In confirming the existence of a duty of care by the State, the Court of Appeal stated that: “the State has a positive obligation to protect the lives of citizens within its jurisdiction under Article 2 ECHR, while Article 8 ECHR creates the obligation to protect the right to home and private life.”
The Court of Appeal also found that it ”believes that it is appropriate to speak of a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life. As has been considered above by the Court, it follows from Articles 2 and 8 ECHR that the State has a duty to protect against this real threat.”
On December 20, 2019, the Supreme Court of the Netherlands confirmed that the government’s current goal of a 20% reduction by 2020, violated Articles 2 and 8 of the European Convention on Human Rights (“ECHR”), a human rights treaty to which 47 nations are parties, including the Netherlands.
The Supreme Court in making its landmark ruling relied on Article 2 of the EHCR that “protects the right to life” to find that a nation has a “positive obligation to take appropriate steps to safeguard the lives of those within its jurisdiction.” Article 8 “protects the right to respect for private and family life,” that includes a nation’s “positive obligation to take reasonable and appropriate measures to protect individuals against serious damage to their environment.” Article 13 “provides that if the rights and freedoms under the ECHR are violated, there exists the right to an effective remedy before a national authority.”
The Supreme Court considered the climate change science and concluded that there is a “genuine threat of dangerous climate change,” and that the “lives and welfare of Dutch residents could be seriously jeopardized.” The Supreme Court also found that “there is a high degree of international consensus” on the need to achieve a reduction of greenhouse gas emissions by 2020 to prevent dangerous climate change. The Supreme Court found that the government violated its duties under the ECHR on the basis that it had implemented a less ambitious short-term goal. There was not dispute before the court about the government’s long-term goals. This represents a ground-breaking case in which the court held the government responsible for failing to meet its greenhouse gas reduction targets.
In the United States, 21 Americans ranging in age from 11 to 22 filed a claim (Our Children’s Trust) initially in the United States District Court for the District of Oregon in 2015 arguing a fundamental right to live in a world with a stable climate system. The “Climate Kids” case is based on the legal principle grounded in the public trust doctrine – arguing that the climate should be held in public trust for the benefit of present and future generations. The U.S. Ninth Circuit Court of Appeals twice ruled that the case should proceed to a trial on its merits. The Supreme Court, while commenting that the breadth of the claims denied the Trump administration’s request to stop the suit from proceeding on March 7, 2018. The trial date set was originally set for October 29, 2018. This case has become known as the Juliana case named after the lead plaintiff Kelsey Juliana.
In the Juliana case the plaintiffs claimed among other things, a right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.” The plaintiffs put forward a considerable record showing the severity of existing and projected climate change impacts indicated that the government had not only failed to act but also that it promotes the continued use of fossil fuels. The plaintiffs sought both declaratory and injunctive relief seeking to have the “government to implement a plan to ‘phase down fossil fuel emissions and draw down excess atmospheric [carbon dioxide].’”
The U.S. Court of Appeals for the Ninth Circuit, by a 2-1 vote found that the plaintiffs did not have standing. All three judges agreed that climate change caused by human activity presents grave risks. The majority of the Court found that the plaintiffs met the first two requirements for standing—some had suffered concrete and particularized injuries, and their injuries were “fairly traceable to” carbon emissions. Unfortunately, the plaintiffs were found to not have met the third requirement for standing on the basis that it is beyond the authority of the Court to order, design, supervise and/or implement the remedial plan being sought by the plaintiffs.
The Court found that there is no “limited and precise” standard under which a court could determine the adequacy of the government’s response. The dissenting opinion of Judge Josephine Staton disagreed with the majority’s position on the basis that the plaintiffs sought to “enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction.” The applicable standard, she found, is “the amount of fossil-fuel emissions that will irreparably devastate our nation.” The dissent found that this is not a political question and is instead a scientific question.
Counsel for the plaintiffs indicated their desire to pursue this case further to the full Ninth Circuit for review.
Currently there are approximately 110 countries that recognize a right to a healthy environment it its constitution. Quebec is the only province in Canada that recognizes a right to a health environment in its human rights legislation while Ontario, Quebec and the three territories recognize the right in environmental legislation. The seven remaining provinces of British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador have no legally recognized right to live in a healthy environment.
As the Urgenda and Juliana cases indicate currently there is no universal answer on the authority of courts to order a reduction of greenhouse gas emissions. However, it does remain clear that this issue of greenhouse gas reduction will continue to be pursued in the courts particularly where there is a concern that governments are failing to meet their greenhouse gas reduction targets on an international level.
 The 2019 Dutch Climate Act sets a 49% reduction goal for 2030 and a 95% reduction goal for 2050.