Urgenda (2015, et al

II. LEADING CLIMATE CHANGE JUDICIAL DECISIONS

10. 11. 12. Given the mandate of Displacement Solutions and the specific climate change issues that are a focus of our work, this report will focus primarily, but by all means not exclusively, on the human rights and climate change links found within existing global climate change jurisprudence. We will focus on cases that have relied on the right to life, the right to seek asylum, housing, land and property rights, and the right to durable solutions for previously displaced persons and refugees. The report is organised on a country-by-country basis. A general effort has been made to organise the cases in order of their global significance in terms of precedence, potential application to jurisdictions other than where the case was decided and scope and originality both the petition and eventual judgments in the cases concerned. In each case profile we provide a brief analysis of the facts and the key elements of the subsequent judicial decision. These are followed by selected direct quotes from the

THE NETHERLANDS

URGENDA (2015, ET AL)

relevant judgments, the most important of which will be displayed in highlighted boxes. The Urgenda Foundation v Kingdom of the Netherlands37 case is considered a landmark case in climate litigation, as for the first time, the tort of negligence was successfully used to hold a State liable for failing to adequately put in place prevention and mitigation policies to effectively tackle the issue of climate change. The defendants were able to successfully argue the need to pass more stringent legal obligations that extends beyond duties derived from international treaties and to include independent legal obligations toward the citizens. This landmark ruling for the first time held a government responsible for its national contribution to global greenhouse gas emissions and established a duty of care under Dutch law in the context of international and constitutional obligations.

The Urgenda Foundation, a citizen organisation that advocates for a sustainable Netherlands, on behalf of 886 individuals plaintiffs, brought a case before the District Court of the Hague in June 2015. It filed a petition seeking a court order requiring the Dutch Government to reduce its greenhouse gas emissions by 40 percent below the 1990 levels by the end of 202038 .

37

38 The three decisions made to date, are in chronological order: The State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Stichting Urgenda (2019) Hoge Raad [the Supreme Court of the Netherlands], 19/000135 (20 December 2019) https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:2007; The State of the Netherlands (Ministry of Infrastructure and the Environment) v Urgenda Foundation) Gerechtshof Den Haag [The Hague Court of Appeal], C/09/456689/HA ZA 13-1396 (9 October 2018) https://uitspraken.rechtspraak.nl/ inziendocument?id=ECLI:NL:GHDHA:2018:2610; and Urgenda Foundation v Netherlands (Ministry of Infrastructure and the Environment) Rechtbank Den Haag [Hague District Court], C/09/456689/HA ZA 13-1396 (24 June 2015) https:// uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196. Eleanor Stein and Alex Geert Castermans, ‘Case Comment – Urgenda v The State of the Netherlands: The “Reflex Effect” – Climate Change, Human Rights and the Expanding Definitions of the Duty of Care’, McGill Journal of Sustainable Development Law, 2017, 13(2), 306.

13. It asserted that this reduction was necessary in order for the State to do its part to ensure global temperatures do not exceed more than 2 degrees. According to Urgenda, the State had a systematic responsibility for total emission levels in the Netherlands and its failure to implement adequate climate policy substantially contributed to climate change. It alleged that in falling short of 2020 targets agreed to by IPCC agreements and commitments by the European Union, the State had failed to fulfil its duty of care towards the people of the Netherlands39. Urgenda Foundation sought to establish the duty of care pursuant to Article 21 of the Dutch Constitution which imposes an obligation on the state “to keep the country habitable and to protect and improve the environment”40 and Articles 2 and 8 of the European Convention on Human Rights that concerned the rights to life and privacy.

The court did not establish that the duty of care was directly derived from the Constitution, ECHR or other legal principles, but that they still held meaning and strongly influenced the scope of the State’s duty of care under Dutch law. Using the Constitution, international conventions and climate policies, the Court sought to derive a framework of analysis, and a set of principles, which it then applied to the duty of care applicable to Urgenda41. The Court held that Article 21 of the Constitution included a duty of care to the Dutch population in relation to the living environment42. The Court also noted that the Netherlands is a party to the UNFCC and Kyoto Protocols, which though do not directly create binding obligations on signatories towards their citizens, such conventions do inform the interpretation of domestic law and by consequence, may affect the obligations of the parties43. Similarly, the court also reasoned that rights under the ECHR also provided a source of interpretation in relation to the State’s duty of care44. In particular, it noted that in interpreting the protection of the right to life in Article 2, the European Court had held it to impose a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction even when the threat to the protection is by persons or activities that are not directly connected with the State45. In determining whether the State had taken reasonable measures to address the impact of climate change and whether the State exercised due care, the Court considered the nature and extent of climate damage, the nature of the State’s acts or omissions, foreseeability, probability of climate damage, and the onerousness of precautionary measures. It ultimately held that “due to the severity of the consequences of climate change and the great risk of hazardous climate change occurring…the State has a duty of care to take mitigation measures” in accordance with the 2 degrees limit set by the IPCC. The Court concluded that the State’s climate policy of a 20% reduction target failed to fulfill its duty of care and thus the State had acted unlawfully and ordered that the State adopt a policy whereby greenhouse gas emissions must be reduced by at least 25% by the end of 2020 compared to the levels of 199046 .

39

40

41

42

43

44

45

46 Ibid, 308-309. Constitution of the Kingdom of the Netherlands, Article 21. Eleanor Stein and Alex Geert Castermans, above n 4, 311. Urgenda, para 4.36. Ibid, para 4.42-4.43. Ibid, para 4.49-4.50. Ibid, para 4.63-4.73. Ibid, para 4.85 and 5.1.

14.

15.

16. In granting Urgenda relief, and in setting environmental standards, there were concerns that the Court had forayed into exercising the legislative powers of policy-making and had violated the Dutch doctrine of trias politica. This formed a ground of the State’s appeal to The Hague Court of Appeal. The State argued that the system of the separation of powers is not one that should be interfered with, as it is not the courts, but the democratically elected government as the appropriate and legitimate body to make such policy determinations47. In foreseeing such criticisms of judicial intervention, the District Court in its ruling considered the roles of each governmental branch, and their distinct roles and responsibilities48. It held that the judiciary has the responsibility of resolving individual disputes, regardless of whether the resolution has implications beyond that of the parties, and that in its capacity as protector against the misuse of state power, decisions relating to the legality of government actions were within the purview of the court49. Further, it noted that though it had ordered the State to pursue additional greenhouse gas emission reductions, it did not prescribe any particular measures or methodology, allowing the State discretion to develop its own remedies50. On 9 October 2018, the District Court ruling was affirmed by The Hague Court of Appeal51 finding that the Dutch government had acted unlawfully in failing to reduce emissions by at least 25% by the end of 2020, and that these failures were contrary to the duty of care provided for in articles 2 and 8 under the European Convention on Human Rights. The Court of Appeal largely followed the earlier decision, dismissing the State’s defences as “unconvincing”52. In relation to the trias politica argument, it noted that the Court is obliged to apply provisions with the effect of treaties to which the State is a party to, including the ECHR, noting that such provisions form part of the Dutch jurisdiction, and take precedence over Dutch laws in instances of inconsistency53. In November 2018, the Dutch Government announced its intention to file a further appeal to the Supreme Court of the Netherlands54 .

The national government of the Netherlands appealed the decision and the Supreme Court heard the appeal on 24 May 2019. After consideration, on 20 December 2019, the Supreme Court upheld the earlier decision under articles 2 and 8 of the ECHR.

Excerpts from the original judgment (2015), appeal (2018) and final appeal (2019) follow:

47

48

49

50

51

52

53

54 Urgenda Foundation v Kingdom of the Netherlands [2015] HAZA C/09/00456689, (The Hague Court of Appeal). Ibid, para 4.94-4.95. Ibid, para 4.98. Ibid, para 4.96. Urgenda, Court of Appeal, above n 13. Ibid, para 70. Ibid, para 69. Urgenda, ‘Dutch Government Fights Obligations to Act on Climate Change’, <https://www.urgenda.nl/en/dutchgovernment-fights-obligations-to-act-on-climate-change/>

ORIGINAL JUDGMENT (2015)55

3. THE DISPUTE

3.1 In summary, after the amendment, Urgenda’s claim involves the court, with immediate effect: to rule that:

(1) the substantial greenhouse gas emissions in the atmosphere worldwide are warming up the earth, which according to the best scientific insights, will cause dangerous climate change if those emissions are not significantly and swiftly reduced;

(2) the hazardous climate change that is caused by a warming up of the earth of 2°C or more, in any case of about 4 °C, compared to the preindustrial age, which according to the best scientific insights is anticipated with the current emission trends, is threatening large groups of people and human rights;

(3) of all countries which emit a significant number of greenhouse gases in the atmosphere, per capita emissions in the Netherlands are one of the highest in the world;

(4) the joint volume of the current annual greenhouse gas emissions in the

Netherlands is unlawful;

(5) the State is liable for the joint volume of greenhouse gas emissions in the

Netherlands;

(6) principally: the State acts unlawfully if it fails to reduce or have reduced the annual greenhouse gas emissions in the Netherlands by 40%, in any case at least 25%, compared to 1990, by the end of 2020;

alternatively: the State acts unlawfully if it fails to reduce or have reduced the annual greenhouse gas emissions in the Netherlands by at least 40% compared to 1990, by the end of 2030; and furthermore orders the State to:

(7) principally: to reduce or have reduced the joint volume of annual greenhouse gas emissions in the Netherlands that it will have been reduced by 40% by the end of 2020, in any case by at least 25%, compared to 1990;

alternatively: reduce or have reduced the joint volume of annual greenhouse gas emissions in the Netherlands that it will have been reduced by at least 40% by 2030, compared to 1990;

55 THE HAGUE DISTRICT COURT, Chamber for Commercial Affairs, case number / cause list number: C/09/456689 / HA ZA 13-1396, Judgment of 24 June 2015 in the case of the foundation URGENDA FOUNDATION, acting on its own behalf as well as in its capacity as representative ad litem and representative of the individuals included in the list attached to the summons, with its registered office and principal place of business in Amsterdam, claimant, lawyers mr.1R.H.J. Cox of Maastricht and Mr. J.M. van den Berg of Amsterdam, versus the legal person under public law THE STATE OF THE NETHERLANDS (MINISTRY OF INFRASTRUCTURE AND THE ENVIRONMENT), seated in The Hague, defendant, lawyers mr. G.J.H. Houtzagers of The Hague and mr. E.H.P. Brans of The Hague. Parties are hereinafter referred to as Urgenda and the State. See: http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDH… (Translation) Only the Dutch text of the ruling is authoritative.

Image: Fiji. Photo by Kadir van Lohuizen

(8) to publish or have published the text contained in the reply and also change of claim or a text to be drawn up by the court in the proper administration of justice immediately on the request of Urgenda, at a date to be determined by Urgenda and to be communicated to the State at least two weeks in advance, in no more than six national daily newspapers to be designated by Urgenda, full-page and page-filling, and by means of logos or other marks clearly and directly recognisable as originating from the State or the government;

(9) to publish and keep published on the homepage of the website www. rijksoverheid.nl the text referred to in (8), starting on the date of publication and also during two consecutive weeks, in such a manner that the text appears on screen clearly legible for all visitors to the website, without the need for any mouse-clicking, and which has to be clicked to be closed before being able to go to other pages of the website; and

(10) orders the State to pay the costs of these proceeding.

3.2

3.3 Briefly summarized, Urgenda supports its claims as follows. The current global greenhouse gas emission levels, particularly the CO2 level, leads to or threatens to lead to a global warming of over 2 °C, and thus also to dangerous climate change with severe and even potentially catastrophic consequences. Such an emission level is unlawful towards Urgenda, as this is contrary to the due care exercised in society. Moreover, it constitutes an infringement of, or is contrary to, Articles 2 and 8 of the ECHR, on which both Urgenda and the parties it represents can rely. The greenhouse gas emissions in the Netherlands additionally contribute to the (imminent) hazardous climate change. The Dutch emissions that form part of the global emission levels are excessive, in absolute terms and even more so per capita. This makes the greenhouse gas emissions of the Netherlands unlawful. The fact that emissions occur on the territory of the State and the State, as a sovereign power, has the capability to manage, control and regulate these emissions, means that the State has “systemic responsibility” for the total greenhouse gas emission level of the Netherlands and the pertinent policy. In view of this, the fact that the emission level of the Netherlands (substantially) contributes to one of several causes of hazardous climate change can and should be attributed to the State. In view of Article 21 of the Dutch Constitution, among other things, the State can be held accountable for this contribution towards causing dangerous climate change. Moreover, under national and international law (including the international-law “no harm” principle, the UN Climate Change Convention and the TFEU) the State has an individual obligation and responsibility to ensure a reduction of the emission level of the Netherlands in order to prevent dangerous climate change. This duty of care principally means that a reduction of 25% to 40%, compared to 1990, should be realised in the Netherlands by 2020. A reduction of this extent is not only necessary to continue to have a prospect of a limitation of global warming of up to (less than) 2°C, but is furthermore the most cost-effective. Alternatively, the Netherlands will need to have achieved a 40% reduction by 2030, compared to 1990. With its current climate policy, the State seriously fails to meet this duty of care and therefore acts unlawfully.

The State argues as follows – also briefly summarised. Urgenda partially has no cause of action, namely in so far as it defends the rights and interests of current or future generations in other countries. Aside from that, the claims are not allowable, as there is no (real threat of) unlawful actions towards Urgenda attributable to the State, while the requirements of Book 6, Section 162 of the Dutch Civil Code and Book 3, Section 296 of the Dutch Civil Code have also not been met. The State acknowledges the need to limit the global temperature rise up to (less than) 2°C, but its efforts are, in fact, aimed at achieving this objective. The current and future climate policies, which cannot be seen as being separate from the international agreements nor from standards and (emission) targets formulated by the European Union, are expected to make this feasible. The State has no legal obligation – either arising from national or international law – to take measures to achieve the reduction targets stated in Urgenda’s claims. The implementation of the Dutch climate policy, which contains mitigation and adaptation measures, is not in breach of Articles 2 and 8 of the ECHR. Allowing (part of) the claims is furthermore contrary to the State’s discretionary power. This would also interfere with the system of separation of powers and harm the State’s negotiating position in international politics.

4.

A.

3.4 The arguments of the parties are examined in more detail below, in so far as relevant.

THE ASSESSMENT

Introduction

4.1

4.2 This case is essentially about the question whether the State has a legal obligation towards Urgenda to place further limits on greenhouse gas emissions – particularly CO2 emissions –in addition to those arising from the plans of the Dutch government, acting on behalf of the State. Urgenda argues that the State does not pursue an adequate climate policy and therefore acts contrary to its duty of care towards Urgenda and the parties it represents as well as, more generally speaking, Dutch society. Urgenda also argues that because of the Dutch contribution to the climate policy, the State wrongly exposes the international community to the risk of dangerous climate change, resulting in serious and irreversible damage to human health and the environment. Based on these grounds, which are briefly summarised here, Urgenda claims, except for several declaratory decisions, that the State should be ordered to limit, or have limited, the joint volume of the annual greenhouse gas emissions of the Netherlands so that these emissions will have been reduced by 40% and at least by 25% in 2020, compared to 1990. In case this claim is denied, Urgenda argues for an order to have this volume limited by 40% in 2030, also compared to 1990.

For its part, the State argues that the Netherlands – also based on European agreements – pursues an adequate climate policy. Therefore, and for many other reasons, the State believes Urgenda’s claims cannot succeed. The key motivation is that the State cannot be forced at law to pursue another climate policy. The terms “the State” and “the Netherlands” will be used interchangeably below, depending on the context. The term “the State” refers to the legal person that is party to these proceedings, while the term “the Netherlands” refers to the same entity in an international context. The government is the State’s executive body.

4.3 The court faces a dispute with complicated and “climate-related” issues. The court does not have independent expertise in this area and will base its assessment on that which the Parties have submitted and the facts admitted between them. This concerns both current scientific knowledge and (other) data the State acknowledges or deems to be correct. Many of these data are available under section 2 of this judgment (“The facts”). An analysis of these data, which are sometimes repeated, will enable the court to determine the severity of the climate change problem. Based on this information, the court will assess the claim and the defence put up against it. Prior to this, the court will assess Urgenda’s standing. If Urgenda is not in a position to confront the State about the issues that are the subject of these proceedings, the court is unable to proceed to assess the merits of the claim. This more in-depth assessment (if applicable) will contain all further questions, including those pertaining to the absence, or not, of the State’s legal obligation towards Urgenda, and the question whether the court’s options also include imposing the order claimed by Urgenda.

B. Urgenda’s standing (acting on its own behalf)

4.4

4.5

4.6

4.7 Under Book 3, Section 303 of the Dutch Civil Code, an individual or legal person is only entitled to bring an action to the civil court if he has sufficient own, personal interest in the claim. Under Book 3, Section 303a of the Dutch Civil Code, a foundation or association with full legal capacity may also bring an action to the court pertaining to the protection of general interests or the collective interests of other persons, in so far as the foundation or association represents these general or collective interests based on the objectives formulated in its by-laws. However, there is a proviso, namely that the legal person concerned can only bring its action to the court if he, in the given circumstances, has made sufficient efforts to enter into a dialogue with the defendant to achieve having his requirements met (paragraph 2).

The position of the State regarding Urgenda’s standing, in so far as this party acts on its own behalf, can be summarised as follows. The State does not challenge that Urgenda, in view of the interests it protects under its by-laws, has a case when on behalf of the current generations of Dutch citizens protests the emission of greenhouse gases from Dutch territory. Nor does the State contest Urgenda’s standpoint that the order to reduce emissions in these proceedings against the State in principle belongs to the group of claims the Dutch legislature finds allowable and has made possible with Book 3, Section 303a of the Dutch Civil Code. Regarding the question whether Urgenda has a case in so far as it defends the interests of future generations of Dutch citizens (and that “in perpetuity”), the State defers to the court’s opinion. The State argues that Urgenda has no case in so far as it defends the rights or interests of current or future generations in other countries.

The court finds as follows. Urgenda’s claims against the State indeed belong to the group of claims the Dutch legislature finds allowable and has wanted to make possible with Book 3, Section 303a of the Dutch Civil Code. It was set out in the Explanatory Memorandum that an environmental organisation’s claim in order to protect the environment without an identifiable group of persons needing protection, would be allowable under the proposed scheme.

Article 2 of Urgenda’s by-laws stipulate that it strives for a more sustainable society, “beginning in the Netherlands”. This demonstrates prioritisation – as it rightly argues – and not a limitation to Dutch territory. The interests Urgenda wants to defend appear to be – from its objective formulated in its by-laws – primarily but not solely Dutch interests. Moreover, the term “sustainable society” has an inherent international (and global) dimension. As based on its by-laws Urgenda is defending the interest of a “sustainable society”, it actually protects an interest that by its nature crosses national borders. Therefore, Urgenda can partially base its claims on the fact that the Dutch emissions also have consequences for persons outside the Dutch national borders, since these claims are directed at such emissions.

4.8 The term “sustainable society” also has an intergenerational dimension, which is expressed in the definition of “sustainability” in the Brundtland Report referred to under 2.3:

“Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” In defending the right of not just the current but also the future generations to availability of natural resources and a safe and healthy living environment, it also strives for the interest of a sustainable society. This interest of a sustainable society is also formulated in the legal standard invoked by Urgenda for the protection against activities which, in its view, are not “sustainable” and threaten to lead to serious threats to ecosystems and human societies. In this context, reference can also be made to Article 2 of the UN Climate Change Convention. Relying on Articles 2 and 8 ECHR, Urgenda’s claim is an extension of its objectives formulated in its by-laws. After all, these stipulations are also aimed at protecting the interests Urgenda seeks to defend.

4.9 Seeing as it is not in dispute that Urgenda has met the requirement of Book 3, Section 305a of the Dutch Civil Code that it has made sufficient efforts to attain its claim by entering into consultations with the State, the court concludes that Urgenda’s claims, in so far as it acts on its own behalf, are allowable to the fullest extent.

4.10 The court’s judgment about Urgenda’s standing is sufficient for now. On the pages below, the court will focus on Urgenda’s position for the time being. The position of the (886) principals on whose behalf Urgenda is also acting will be discussed at the end.

D. Legal obligation of the State?

Introduction

4.35 As mentioned briefly above, Urgenda accuses the State of several things, such as the State acting unlawfully by, contrary to its constitutional obligation (Article 21 of the Dutch Constitution), mitigating insufficiently as defined further in international agreements and in line with current scientific knowledge. In doing so, the State is damaging the interests it pursues, namely: to prevent the Netherlands from causing (more than proportionate) damage, from its territory, to current and future generations in the Netherlands and abroad. Furthermore, Urgenda argues that under Articles 2 and 8 of the ECHR, the State has the positive obligation to take protective measures. Urgenda also claims that the State is acting unlawfully because, as a consequence of insufficient mitigation, it (more than proportionately) endangers the living climate (and thereby also the health) of man and the environment, thereby breaching its duty of care. Urgenda asserts that in doing so the State is acting unlawfully towards Urgenda in the sense of Book 6, Section 162 of the Dutch Civil Code, whether or not in combination with Book 5, Section 37 of the Dutch Civil Code. The State contests that a duty of care arises from these sections for a further limitation of emissions than currently realised by it. The court finds as follows.

Contravention of a legal obligation

Article 21 of the Constitution and international conventions

4.36 Article 21 of the Dutch Constitution imposes a duty of care on the State relating to the liveability of the country and the protection and improvement of the living environment. For the densely populated and low-lying Netherlands, this duty of care concerns important issues, such as the water defences, water management and the

4.41 living environment. This rule and its background do not provide certainty about the manner in which this duty of care should be exercised nor about the outcome of the consideration in case of conflicting stipulations. The manner in which this task should be carried out is covered by the government’s own discretionary powers.

4.37 The realisation that climate change is an extra-territorial, global problem and fighting it requires a worldwide approach has prompted heads of state and government leaders to contribute to the development of legal instruments for combating climate change by means of mitigating greenhouse gas emissions as well as by making their countries “climate-proof” by means of taking mitigating measures. These instruments have been developed in an international context (in the UN), European context (in the EU) and in a national context. The Dutch climate policy is based on these instruments to a great extent.

4.38 The Netherlands has committed itself to UN Climate Change Convention, a framework convention which contains general principles and starting points, which form the basis for the development of further, more specific, rules, for instance in the form of a protocol. The Kyoto Protocol is an example of this. The COP with a number of subsidiary organs was set up for the further development and implementation of a climate regime. Almost all COP’s decisions are not legally binding, but can directly affect obligations of the signatories to the convention or the protocol. This applies, for instance, to several decisions taken pursuant to the Kyoto Protocol. These involve mechanisms which enable the trade in emission (reduction) allowances and which allow collaboration between the parties so that greenhouse gas emissions can be reduced where it is cheapest.

4.39 In this context, Urgenda also brought up the international-law “no harm” principle, which means that no state has the right to use its territory, or have it used, to cause significant damage to other states. The State has not contested the applicability of this principle.

4.40 The care and protection of the living environment is also increasingly determined by the EU. The basis for the European environmental policy is enclosed in Article 19 TFEU. For the development and implementation of the Community’s environmental policy use has mostly been made of directives These often concern minimum harmonisation, so that on the one hand the entire Union will have a basic protection level while on the other hand the Member States still have the power to establish

stricter standards for their own territories. In view of the obligation of Member States to take reduction measures, the implementation of the ETS Directive in Chapter 16 of the Environmental Management Act (see 2.70) is relevant to these proceedings. The Directive has introduced an emission allowance trading system, with the European Commission determining the CO2 emission ceiling for five year periods. The allowed emission level is allocated to the Member State concerned in the form of emission allowances. In the context of the EU, the Effort Sharing Decision (see 2.62) is also relevant. Based on these schemes, the Netherlands has committed itself to a 21% reduction of emissions that fall under the ETS in 2020, compared to 2005 and to a 16% reduction for non-ETS sectors in 2020, compared to 2005 (see 2.74).

4.42 From an international-law perspective, the State is bound to UN Climate Change Convention, the Kyoto Protocol (with the associated Doha Amendment as soon as it enters into force) and the “no harm” principle. However, this international-law binding force only involves obligations towards other states. When the State fails one of its obligations towards one or more other states, it does not imply that the State is acting unlawfully towards Urgenda. It is different when the written or unwritten rule of international law concerns a decree that “connects one and all”. After all, Article 93 of the Dutch Constitution determines that citizens can derive a right from it if its contents can connect one and all. The court – and the Parties – states first and foremost that the stipulations included in the convention, the protocol and the “no harm” principle do not have a binding force towards citizens (private individuals and legal persons). Urgenda therefore cannot directly rely on this principle, the convention and the protocol (see, among other things, HR 6 February 2004, ECLI:NL: HR:2004:AN8071, NJ 2004, 329, Vrede et al./State).

4.43 This does not affect the fact that a state can be supposed to want to meet its international-law obligations. From this it follows that an international-law standard – a statutory provision or an unwritten legal standard – may not be explained or applied in a manner which would mean that the state in question has violated an internationallaw obligation, unless no other interpretation or application is possible. This is a generally acknowledged rule in the legal system. This means that when applying and interpreting national-law open standards and concepts, including social proprietary, reasonableness and propriety, the general interest or certain legal principles, the court takes account of such international-law obligations. This way, these obligations have a “reflex effect” in national law.

4.44 The comments above regarding international-law obligations also apply, in broad outlines, to European law, including the TFEU stipulations, on which citizens cannot directly rely. The Netherlands is obliged to adjust its national legislation to the objectives stipulated in the directives, while it is also bound to decrees (in part) directed at the country. Urgenda may not derive a legal obligation of the State towards it from these legal rules. However, this fact also does not stand in the way of the fact that stipulations in an EU treaty or directive can have an impact through the open standards of national law described above.

Violation of a personal right

Articles 2 and 8 ECHR

4.45 In assessing the question whether or not the State with its current climate policy is breaching one of Urgenda’s personal rights, the court considers that Urgenda itself cannot be designated as a direct or indirect victim, within the meaning of Article 34 ECHR, of a violation of Articles 2 and 8 ECHR. After all, unlike with a natural person, a legal person’s physical integrity cannot be violated nor can a legal person’s privacy be interfered with (cf. ECtHR 12 May 2015, Identoba et al./Georgia, no. 73235/12).

4.47 Even if Urgenda’s objectives, formulated in its by-laws, are explained in such a way as to also include the protection of national and international society from a violation of Article 2 and 8 ECHR, this does not give Urgenda the status of a potential victim within the sense of Article 34 ECHR (cf. ECtHR 29 September 2009, Van Melle et al./ Netherlands, no. 19221/08). Therefore, Urgenda itself cannot directly rely on Articles 2 and 8 ECHR.

4.46 However, both articles and their interpretation given by the ECtHR, particularly with respect to environmental right issues, can serve as a source of interpretation when detailing and implementing open private-law standards in the manner described above, such as the unwritten standard of care of Book 6, Section 162 of the Dutch Civil Code. Therefore, the court will now – briefly – reflect on the environmental law principles and scope of protection of Articles 2 and 8 ECHR, such as those that can

be derived from the ECtHR’s rulings. At the recommendation of the Parliamentary Assembly and by order of (and under the responsibility of) the Committee of Ministers of the Council of Europe, a “Manual on human rights and the environment” was published for the first time, in 2005. The goal of this manual is to raise awareness among a wide audience about the relationship between the protection of the human rights under the ECHR and the environment, thereby contributing to the reinforcement of environmental law protection on a national level. With this goal in mind, the manual (and other documents) provides information about the rulings of the ECtHR in this area and also pays attention to the impact of the European Social Charter and the relevant explanation of this charter by the European Committee of Social Rights. The last version of the manual was published in 2012. In so far as an explanation is given of the ECtHR’s rulings below, the court concurs with it.

4.48 Part II of the manual describes the environmental principles that can be derived from the ECtHR’s rulings. The court deems the following passages from this part relevant:

“(…) the Court has emphasised that the effective enjoyment of the rights which are encompassed in the Convention depends notably on a sound, quiet and healthy environment conducive to well-being. The subject-matter of the cases examined by the Court shows that a range of environmental factors may have an impact on individual convention rights, such as noise levels from airports, industrial pollution, or town planning. As environmental concerns have become more important nationally and internationally since 1950, the case-law of the Court has increasingly reflected the idea that human rights law and environmental law are mutually reinforcing. Notably, the Court is not bound by its previous decisions, and in carrying out its task of interpreting the Convention, the Court adopts an evolutive approach. Therefore, the interpretation of the rights and freedoms is not fixed but can take account of the social context and changes in society. As a consequence, even though no explicit right to a clean and quiet environment is included in the Convention or its protocols, the caselaw of the Court has shown a growing awareness of a link between the protection of the rights and freedoms of individuals and the environment. The Court has also

made reference, in its case law, to other international environmental law standards and principles (…). However, it is not primarily upon the European Court of Human Rights to determine which measures are necessary to protect the environment, but upon national authorities. The Court has recognised that national authorities are best placed to make decisions on environmental issues, which often have difficult social and technical aspects. Therefore, in reaching its judgments, the Court affords the national authorities in principle a wide discretion – in the language of the Court a wide “margin of appreciation” – in their decision-making in this sphere. This is the practical implementation of the principle of subsidiarity, which has been stressed in the Interlaken Declaration of the High Level Conference on the Future of the European Court of Human Rights. According to this principle, violations of the Convention should be prevented or remedied at the national level with the Court intervening only as a last resort. The principle is particularly important in the context of environmental matters due to their very nature.”

4.49 The scope of protection based on various articles of the ECHR regarding environmental issues has been detailed in separate chapters. In the context of this case, the court finds the following principles from the first chapter of part II (“Chapter I: the right to life and environment”) relevant, including the subsequent explanation (the footnotes referring to the rulings of the ECtHR concerned have not been included in the quotation): “(a) The right to life is protected under Article 2 of the Convention. This Article does not solely concern deaths resulting directly from the actions of the agents of a State, but also lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction. This means that public authorities have a duty to take steps to guarantee the rights of the Convention even when they are threatened by other (private) persons or activities that are not directly connected with the State. 1. (…) in some situations Article 2 may also impose on public authorities a duty to take steps to guarantee the right to life when it is threatened by persons or activities not directly connected with the State. (…) In the context of the environment, Article 2 has been applied where certain activities endangering the environment are so dangerous that they also endanger human life. 2. It is not possible to give an exhaustive list of examples of situations in which this obligation might arise. It must be stressed however that cases in which issues under Article 2 have arisen are exceptional. So far, the Court has considered environmental issues in four cases brought under Article 2, two of which relate to dangerous activities and two which relate to natural disasters. In theory, Article 2 can apply even though loss of life has not occurred, for example in situations where potentially lethal force is used inappropriately. (b) The Court has found that the positive obligation on States may apply in the context of dangerous activities, such as nuclear tests, the operation of chemical factories with toxic emissions or waste- collection sites, whether carried out by public authorities themselves or by private companies. In general, the extent of the obligations of public authorities depends on factors such as the harmfulness of the dangerous activities and the foreseeability of the risks to life. ( c) (…) ( d) In the first place, public authorities may be required to take measures to prevent infringements of the right to life as a result of dangerous activities or natural disasters. This entails, above all, the primary duty of a State to put in a place a legislative and administrative framework which includes: (…)”

4.50 The following principles from Chapter II (“respect for private and family life as well as the home and the environment”), with explanation, are relevant: “(a) (…) (b) 4.51 Environmental degradation does not necessarily involve a violation of Article 8 as it does not include an express right to environmental protection or nature conservation. (c) For an issue to arise under Article 8, the environmental factors must directly and seriously affect private and family life or the home. Thus, there are two issues which the Court must consider – whether a causal link exists between the activity and the negative impact on the individual and whether the adverse have attained a certain threshold of harm. The assessment of that minimum threshold depends on all the circumstances of the case, such as the intensity and duration of the nuisance and its physical or mental effects, as well as on the general environmental context. (…) 15. In the Kyrtatos v. Greece case, the applicants brought a complaint under Article 8 alleging that urban development had led to the destruction of a swamp adjacent to their property, and that the area around their home had lost its scenic beauty. The Court emphasised that domestic legislation and certain other international instruments rather than the Convention are more appropriate to deal with the general protection of the environment. The purpose of the Convention is to protect individual human rights, such as the right to respect for the home, rather than the general aspirations or needs of the community taken as a whole. The Court highlighted in this case that neither Article 8 nor any of the other articles of the Convention are specifically designed to provide general protection of the environment as such. In this case, the Court found no violation of Article 8. (d) While the objective of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it may also imply in some cases an obligation on public authorities to adopt positive measures designed to secure the rights enshrined in this article. This obligation does not only apply in cases where environmental harm is directly caused by State activities but also when it results from private sector activities. Public authorities must make sure that such measures are implemented so as to guarantee rights protected under Article 8. The Court has furthermore explicitly recognised that public authorities may have a duty to inform the public about environmental risks. Moreover, the Court has stated with regard to the scope of the positive obligation that it is generally irrelevant of whether a situation is assessed from the perspective of paragraph 1 of Article 8 which, inter alia, relates to the positive obligations of State authorities, or paragraph 2 asking whether a State interference was justified, as the (…)”

Book 5, Section 37 of the Dutch Civil Code

principles applied are almost identical. In so far as Urgenda has relied on Book 5, Section 37 of the Dutch Civil Code (nuisance), the court is of the opinion that in addition to that which is stated below about the duty of care, this section does not have an independent meaning.

Intermediate conclusion about the duty of care

4.52 The foregoing leads the court to conclude that a legal obligation of the State towards Urgenda cannot be derived from Article 21 of the Dutch Constitution, the “no harm” principle, the UN Climate Change Convention, with associated protocols, and Article 191 TFEU with the ETS Directive and Effort Sharing Decision based on TFEU. Although Urgenda cannot directly derive rights from these rules and Articles 2 and 8 ECHR, these regulations still hold meaning, namely in the question discussed below whether the State has failed to meet its duty of care towards Urgenda. First of all, it can be derived from these rules what degree of discretionary power the State is entitled to in how it exercises the tasks and authorities given to it. Secondly, the objectives laid down in these regulations are relevant in determining the minimum degree of care the State is expected to observe. In order to determine the scope of the State’s duty of care and the discretionary power it is entitled to, the court will therefore also consider the objectives of international and European climate policy as well as the principles on which the policies are based.

Breach of standard of due care observed in society, discretionary power

4.53 The question whether the State is in breach of its duty of care for taking insufficient measures to prevent dangerous climate change, is a legal issue which has never before been answered in Dutch proceedings and for which jurisprudence does not provide a ready-made framework. The answer to the question whether or not the State is taking sufficient mitigation measures depends on many factors, with two aspects having particular relevance. In the first place, it has to be assessed whether there is a unlawful hazardous negligence on the part of the State. Secondly, the State’s discretionary power is relevant in assessing the government’s actions. From case law about government liability it follows that the court has to assess fully whether or not the State has exercised or exercises sufficient care, but that this does not alter the fact that the State has the discretion to determine how it fulfils its duty of care. However, this discretionary power vested in the State is not unlimited: the State’s care may not be below standard. However, the test of due care required here and the discretionary power of the State are not wholly distinguishable. After all, the detailing of the duty of care of the person called to account will also have been included in his specific position in view of the special nature of his duty or authority. The standard of care has been attuned to this accordingly.

Factors to determine duty of care

4.54 Urgenda has relied on the “Kelderluik” ruling of the Supreme Court (HR 5 November 1965, ECLI:NL:HR:1965:AB7079, NJ 1966, 136) and on jurisprudence on the doctrine of hazardous negligence developed later to detail the requirement of acting with due care towards society. Understandably, the State has pointed out the relevant differences between this jurisprudence and this case. This case is different in that the central focus is on dealing with a hazardous global development, of which it is uncertain when, where and to what extent exactly this hazard will materialise. Nevertheless, the doctrine of hazardous negligence, as explained in the literature, bears a resemblance to the theme of hazardous climate change, so that several criteria stated below can be derived from hazardous negligence jurisprudence in order to detail the concept of acting negligently towards society.

4.55 In principle, the extent to which the State is entitled to a scope for policymaking is determined by the statutory duties and powers vested in the State. As has been stated above, under Article 21 of the Constitution, the State has a wide discretion of power to organise the national climate policy in the manner it deems fit. However, the court is of the opinion that due to the nature of the hazard (a global cause) and the task to be realised accordingly (shared risk management of a global hazard that could result in an impaired living climate in the Netherlands), the objectives and principles, such as those laid down in the UN Climate Change Convention and the TFEU, should also be considered in determining the scope for policymaking and duty of care.

4.56 The objectives and principles of the international climate policy have been formulated in Articles 2 and 3 of the UN Climate Change Convention (see 2.37 and 2.38). The court finds the principles under (i), (ii), (iii) and (iv) particularly relevant for establishing the scope for policymaking and the duty of care. These read as follows, in brief: (i) protection of the climate system, for the benefit of current and future generations, based on fairness; (iii) the precautionary principle; (iv) the sustainability principle.

4.57 The principle of fairness (i) means that the policy should not only start from what is most beneficial to the current generation at this moment, but also what this means for future generations, so that future generations are not exclusively and disproportionately burdened with the consequences of climate change. The principle of fairness also expresses that industrialised countries have to take the lead in combating climate change and its negative impact. The justification for this, and this is also noted in literature, lies first and foremost in the fact that from a historical perspective the current industrialised countries are the main causers of the current high greenhouse gas concentration in the atmosphere and that these countries also benefited from the use of fossil fuels, in the form of economic growth and prosperity. Their prosperity also means that these countries have the most means available to take measures to combat climate change.

4.58 With the precautionary principle (ii) the UN Climate Change Convention expresses that taking measures cannot be delayed to await full scientific certainty. The signatories should anticipate the prevention or limitation of the causes of climate change or the prevention or limitation of the negative consequences of climate change, regardless of a certain level of scientific uncertainty. In making the consideration that is needed for taking precautionary measures, without having absolute certainty whether or not the actions will have sufficient effects, the Convention states that account can be taken of a cost-benefit ratio: precautionary measures which yield positive results worldwide at as low as possible costs will be taken sooner.

4.59 The sustainability principle (iv) expresses that the signatories to the Convention will promote sustainability and that economic development is vital for taking measures to combat climate change.

4.60 The objectives of the European climate policy have been formulated in Article 191, paragraph 1 TFEU (see 2.53). The following are the principles relevant to this case (as evidenced by paragraph 2 of this article): - the principle of a high protection level; - the precautionary principle; - the prevention principle.

4.61 With the principle of a high protection level, the EU expresses that its environmental policy has high priority and that it has to be implemented strictly, with account taken of regional differences. The precautionary principle also means that the Community should not postpone taking measures to protect the environment until full scientific certainty has been achieved. In short, the prevention principle means: “prevention is better than cure”; it is better to prevent climate problems (pollution, nuisance, in this case: climate change) than combating the consequences later on.

4.62 Article 191, paragraph 3 TFEU also means that in determining its environmental policy, the EU takes account of: - the available scientific and technical information; - the environmental circumstances in the various EU regions; - the benefits and nuisances that could ensue from taking action or failing to take action; - the economic and social development of the Union as a whole and the balanced development of its regions.

4.63 The objectives and principles stated here do not have a direct effect due to their international and private-law nature, as has been considered above. However, they do determine to a great extent the framework for and the manner in which the State exercises its powers. Therefore, these objectives and principles constitute an important viewpoint in assessing whether or not the State acts wrongfully towards Urgenda. With due regard for all the above, the answer to the question whether or not the State is exercising due care with its current climate policy depends on whether according to objective standards the reduction measures taken by the State to prevent hazardous climate change for man and the environment are sufficient, also in view of the State’s discretionary power. In determining the scope of the duty of care of the State, the court will therefore take account of: (i) the nature and extent of the damage ensuing from climate change; (ii) the knowledge and foreseeability of this damage; (iii) the chance that hazardous climate change will occur; (iv) the nature of the acts (or omissions) of the State; (v) the onerousness of taking precautionary measures; (vi) the discretion of the State to execute its public duties – with due regard for the public-law principles, all this in light of: - the latest scientific knowledge; - the available (technical) option to take security measures, and - the cost-benefit ratio of the security measures to be taken.

Duty of care

(i-iii) the nature and extent of the damage ensuing from climate change, the knowledge and foreseeability of this damage and the chance that hazardous climate change will occur

4.64 As has been stated before, the Parties agree that due to the current climate change and the threat of further change with irreversible and serious consequences for man and the environment, the State should take precautionary measures for its citizens. This concerns the extent of the reduction measures the State should take as of 2020.

4.65 Since it is an established fact that the current global emissions and reduction targets of the signatories to the UN Climate Change Convention are insufficient to realise the 2° target and therefore the chances of dangerous climate change should be considered as very high – and this with serious consequences for man and the environment, both in the Netherlands and abroad – the State is obliged to take measures in its own territory to prevent dangerous climate change (mitigation

measures). Since it is also an established fact that without far-reaching reduction measures, the global greenhouse gas emissions will have reached a level in several years, around 2030, that realising the 2° target will have become impossible, these mitigation measures should be taken expeditiously. After all, the faster the reduction of emissions can be initiated, the bigger the chance that the danger will subside. In the words of Urgenda: trying to slow down climate change is like trying to slow down an oil tanker that has to shut down its engines hundreds of kilometres off the coast not to hit the quay. If you shut down the engines when the quay is in sight, it is inevitable that the oil tanker will sooner or later hit the quay. The court also takes account of the fact that the State has known since 1992, and certainly since 2007, about global warming and the associated risks. These factors lead the court to the opinion that, given the high risk of hazardous climate change, the State has a serious duty of care to take measures to prevent it.

(iv) the nature of the acts (or omission) of the State

4.66 The State has argued that it cannot be seen as one of the causers of an imminent climate change, as it does not emit greenhouse gases. However, it is an established fact that the State has the power to control the collective Dutch emission level (and that it indeed controls it). Since the State’s acts or omissions are connected to the Dutch emissions a high level of meticulousness should be required of it in view of the security interests of third parties (citizens), including Urgenda. Apart from that, when it became a signatory to the UN Climate Change Convention and the Kyoto Protocol, the State expressly accepted its responsibility for the national emission level and in this context accepted the obligation to reduce this emission level as much as needed to prevent dangerous climate change. Moreover, citizens and businesses are dependent on the availability of non-fossil energy sources to make the transition to a sustainable society. This availability partly depends on the options for providing “green energy” (compare, for instance, legislative proposal 34 058, Wind energy at sea, which is currently being reviewed by the Senate). The State therefore plays a crucial role in the transition to a sustainable society and therefore has to take on a high level of care for establishing an adequate and effective statutory and instrumental framework to reduce the greenhouse gas emissions in the Netherlands.

(v) the onerousness of taking precautionary measures

4.67 In answering the question if and if so, to what extent, the State has the obligation to take precautionary measures, it is also relevant to find out whether taking precautionary measures is onerous. Various aspects can be discerned in this. For instance, it is important to know whether the measures to be taken are costly. Moreover, it may also be important to establish whether the precautionary measures are costly in relation to the possible damage. The effectiveness of the measures can also be relevant. Finally, significance should be attached to the availability of the (technical) possibilities to take the required measures.

4.68 Subject of the dispute between the Parties is the question if the reduction target intended by the State or the reduction target ordered by Urgenda is the most cost effective. This concerns macro economic costs of a particular mitigation policy. The IPCC reports describe prognoses per scenario.

4.69 Urgenda has argued that it is more cost-effective to maintain the (stricter) reduction 4.71 4.72 target of 25-40% in 2020. Referring to European policy documents, the State has alleged that it is also cost-effective to realise a 40% reduction in 2030 and 80% in 2050 (see 2.64 and 2.66). The court finds as follows.

4.70 Assuming – as has been considered above – that in its foreign policy the State for a long time has started from a required reduction of 25-40% in 2020 for Annex I countries, compared to 1990 and consequently has committed to the EU’s aim to formulate a 30% reduction target for 2020. Up to about 2010, the Netherlands had had a national reduction target of 30% for 2020 (compared to 1990). According to the then cabinet, in 2009, a scientifically established emission reduction of 25-40% by 2020 was needed in order to attain the 2°C target and to “stay on a plausible route to keep [that] target within reach” (see 2.73). Apparently, this reduction target was then deemed to be cost-effective. The State has not argued that the decision to let go of this national reduction target of 30% and instead follow the EU target of 20% for 2020, compared to 1990 (which according to the current prognoses comes down to a reduction in the Netherlands of about 17%), was driven by improved scientific insights or because it was allegedly not economically responsible to continue to maintain that 30% target. Nor did the State issue concrete details from which it could be derived that the reduction path of 25-40% in 2020 would lead to disproportionately high costs, or would not be cost-effective in comparison with the slower reduction path for other reasons. On the contrary: at the hearing of 14 April 2015, the State confirmed that it would be possible for the Netherlands to meet the EU’s 30% target for 2020 provided that the condition for that target was met in the short term. Based on this, the court concludes that there is no serious obstacle from a cost consideration point

of view to adhere to a stricter reduction target. The court also considers that in climate science and the international climate policy there is consensus that the most serious consequences of climate change have to be prevented. It is known that the risks and damage of climate change increase as the mean temperature rises. Taking immediate action, as argued by Urgenda, is more cost-effective, is also supported by the IPCC and UNEP (see 2.19 and 2.30). The reports concerned also prove that mitigation of greenhouse gas emissions in the short and long term is the only effective way to avert the danger of climate change. Although adaptation measures can reduce the effects of climate change, they do not eliminate the danger of climate change. Mitigation therefore is the only really effective

tool. The court has deduced from the various reports submitted by the Parties that mitigation can be realised in various ways. This could include the limitation of the use of fossil fuels by means of, among other things, emissions trading or tax measures, the introduction of renewable energy sources, the reduction of energy consumption and reforestation and combating deforestation. The State has also referred to new technologies such as CO2 capture and storage. The court deems the State’s viewpoint that a high level of CO2 reduction can be expected to be achieved in the future through CO2 capture and storage insufficiently supported. Such an expectation would be relevant if it has been established that the use of these techniques would

4.74 enable such a reduction that the emission between now and 2050, as depicted in the first graph above, could be compensated. Without sufficient objection from the State, Urgenda has argued that in so far as these techniques are sufficiently available (CO2 capture and storage are still in the experimental phase) it is not plausible that techniques of this nature can be applied in the short term and therefore in time. Urgenda has also referred to the further regulations required for that. At the hearing, it was brought up that initiatives have been taken in various areas, such as for renewable energy (the legislative proposal 34 058 for wind energy at sea, referred to above) and for CO2 capture and storage, but that these initiatives are still in the preliminary stages without any concrete prospect of success. In the UNEP and IPCC reports, which the Parties have referred to, it is therefore emphasised that later intervention increases the need for new technologies, while the risks and options of these technologies are still uncertain.

4.73 Based on its considerations here, the court concludes that in view of the latest scientific and technical knowledge it is the most efficient to mitigate and it is more cost-effective to take adequate action than to postpone measures in order to prevent hazardous climate change. The court is therefore of the opinion that the State has a

(vi) the discretion of the State to execute its public duties – with due regard for the public-law principles

duty of care to mitigate as quickly and as much as possible. In answering the question whether the State is exercising enough care with its current climate policy, the State’s discretionary power should also be considered, as stated above. Based on its statutory duty – Article 21 of the Constitution – the State has an extensive discretionary power to flesh out the climate policy. However, this discretionary power is not unlimited. If, and this is the case here, there is a high risk of dangerous climate change with severe and life-threatening consequences for man and the environment, the State has the obligation to protect its citizens from it by taking appropriate and effective measures. For this approach, it can also rely on the aforementioned jurisprudence of the ECtHR. Naturally, the question remains what is fitting and effective in the given circumstances. The starting point must be that in its decision-making process the State carefully considers the various interests. Urgenda has stated that the State meets its duty of care if it applies a reduction target of 40%, 30% or at least 25% for the year 2020. The State has contested this with reference to the intended adaptation measures.

4.75 The court emphasises that this first and foremost should concern mitigation measures, as adaptation measures will only allow the State to protect its citizens from the consequences of climate change to a limited level. If the current greenhouse gas emissions continue in the same manner, global warming will take such a form that the costs of adaptation will become disproportionately high. Adaptation measures will therefore not be sufficient to protect citizens against the aforementioned consequences in the long term. The only effective remedy against hazardous climate change is to reduce the emission of greenhouse gases. Therefore, the court arrives at the opinion that from the viewpoint of efficient measures available the State has limited options: mitigation is vital for preventing dangerous climate change.

4.76 The State’s options are limited further by the private-law principles applicable to the 4.77 4.79 State and mentioned above. After all, these principles were developed in response to the special risk of climate change and therefore limit the State’s options. This also applies, for instance, to the circumstance that Annex I countries, including the Netherlands, have taken the lead in taking mitigation measures and have therefore committed to a more than proportional contribution to reduction, in view of a fair distribution between industrialised and developing countries. Due to this principle of fairness, the State, in choosing measures, will also have to take account of the fact that the costs are to be distributed reasonably between the current and future generations. If according to the current insights it turns out to be cheaper on balance to act now, the State has a serious obligation, arising from due care, towards future generations to act accordingly. Moreover, the State cannot postpone taking precautionary measures based on the sole reason that there is no scientific certainty yet about the precise effect of the measures. However, a cost-benefit ratio is allowed here. Finally, the State will have to base its actions on the principle of “prevention is

better than cure”. To all these principles it applies that if the State wants to deviate from them, it will have to argue and prove sufficient justification for the deviation. A justification could be the costs. The State should not be expected to do the impossible nor may a disproportionately high burden be placed on it. However, as has been considered above, it has neither been argued, nor has it become evident that the State has insufficient financial means to realise higher reduction measures. It can also not be concluded that from a macro economic point of view there are obstructions to choosing a higher emission reduction level for 2020.

4.78 The State has argued that allowing Urgenda’s claim, which is aimed at a higher reduction of greenhouse gas emission in the Netherlands, would not be effective on a global scale, as such a target would result in a very minor, if not negligible, reduction of global greenhouse gas emissions. After all, whether or not the 2°C target is achieved will mainly depend on the reduction targets of other countries with high emissions. More specifically, the States relies on the fact that the Dutch contribution to worldwide emissions is currently only 0.5%. If the reduction target of 25-40% from Urgenda’s claim were met the State argues that this would result in an additional reduction of 23.75 to 49.32 Mt CO2-eq (up to 2020), representing only 0.04-0.09% of global emissions. Starting from the idea that this additional reduction would hardly affect global emissions, the State argues that Urgenda has no interest in an allowance

of its claim for additional reduction. This argument does not succeed. It is an established fact that climate change is a global problem and therefore requires global accountability. It follows from the UNEP report that based on the reduction commitments made in Cancun, a gap between the desired CO2 emissions (in order to reach the climate objective) and the actual emissions (14-17 Gt CO2 ) will have arisen by 2030. This means that more reduction measures have to be taken on an international level. It compels all countries, including the Netherlands, to implement the reduction measures to the fullest extent as possible. The fact that the amount of the Dutch emissions is small compared to other countries does not

affect the obligation to take precautionary measures in view of the State’s obligation to exercise care. After all, it has been established that any anthropogenic greenhouse gas emission, no matter how minor, contributes to an increase of CO2 levels in the atmosphere and therefore to hazardous climate change. Emission reduction therefore concerns both a joint and individual responsibility of the signatories to the UN Climate Change Convention. In view of the fact that the Dutch emission reduction is determined by the State, it may not reject possible liability by stating that its contribution is minor, as also adjudicated mutatis mutandis in the Potash mines ruling of the Dutch Supreme Court (HR 23 September 1988, NJ 1989, 743). The rules given in that ruling also apply, by analogy, to the obligation to take precautionary measures in order to avert a danger which is also the subject of this case. Therefore, the court arrives at the opinion that the single circumstance that the Dutch emissions only constitute a minor contribution to global emissions does not alter the State’s obligation to exercise care towards third parties. Here too, the court takes into account that in view of a fair distribution the Netherlands, like the other Annex I countries, has taken the lead in taking mitigation measures and has therefore committed to a more than proportionate contribution to reduction. Moreover, it is beyond dispute that the Dutch per capita emissions are one of the highest in the world.

4.80 Finally, the State has put forward that higher emission reductions in the ETS sector are not allowed. In support of this argument, the State has referred to the emission ceiling for the ETS sector as adopted by the EU, which is intended to have led to an EU-wide emission reduction of 21% by 2020, compared to 2005. In view of this ceiling and of the principles of EU law laid down in the TFEU, the State argues that it is not possible to impose a stricter (or less strict) reduction target of over 21% on ETS businesses established in the Netherlands. In so far as the State hereby argues that in allocating the emission allowances (emission allocation) among the ETS businesses the State should act in accordance with EU legislation and observe the ceiling stated therein, then this is correct. However, the court does not follow the State in this argument in so far as this means that a Member State is not allowed to reduce more than the amount adopted in EU policy. As has been stated previously, the State has determined a higher reduction target for the period up to 2010, namely 30%. Urgenda was right in arguing that regardless of the ceiling Member States have the option to influence (directly or indirectly) the greenhouse gas emissions of national ETS businesses by taking own, national measures. In its argument, Urgenda has named several of such measures taken in other Member States, such as increasing the share of sustainable energy in the national electricity network in Denmark and the introduction of the carbon price floor in the United Kingdom, with which the price of CO2 emission has been increased. In response to Urgenda’s argument, the State acknowledged in a more general sense that it is legally and practically possible to develop a national ETS sector policy that is more far-reaching than the EU’s policy. It is of the opinion of the court that the European legislation discussed here does not prevent the State from pursuing a higher reduction for 2020.

4.81 The court also does not follow the State’s argument that other European countries will neutralise reduced emissions in the Netherlands, and that greenhouse gas emission in the EU as a whole will therefore not decrease. The phenomenon the State refers to and which could occur at various levels (between countries, but also between provinces, regions or on a global scale) and which could have various causes, is also known as the “waterbed effect” or “carbon leakage”. AR5/2013 describes research results from 2012, which show that a mean 12% of carbon losses will have to be taken into account. The accompanying document to the announcement of the European Commission of 22 January 2014 (“summary of the effect assessment”) referred to in 2.66 states that “so far there have been no signs” of carbon leakage. In view of this, it cannot be maintained that extra reduction efforts of the State would be without substantial influence.

4.82 In so far as the State argues that a higher reduction path will decrease the “level playing field” for Dutch businesses, it failed to provide adequate explanations or supporting documents. This road would have been open to the State, as the Parties agree that some of the countries neighbouring the Netherlands have implemented a stricter national climate policy (United Kingdom, Denmark and Sweden) and as there are no indications that this has created an unlevel “playing field” for business in those countries. It is furthermore unclear which businesses the State is referring to: the climate policy can have a negative effect on one sector, while it can also have a positive effect on another sector. It is also unclear if and if so, to what extent, on a global level a stricter climate policy in the Netherlands will have any sort of effect on the position of businesses (including multinationals) compared tot heir nationally and internationally operating competitors. This argument is therefore rejected.

Image: Weather patterns are changing – leading to more frequent and more violent storms – which increasingly often destroy homes. Colombia. Kadir van Lohuizen / NOOR.

Conclusion about the duty of care and determining the reduction target

4.83 Due to the severity of the consequences of climate change and the great risk of hazardous climate change occurring – without mitigating measures – the court concludes that the State has a duty of care to take mitigation measures. The circumstance that the Dutch contribution to the present global greenhouse gas emissions is currently small does not affect this. Now that at least the 450 scenario is required to prevent hazardous climate change, the Netherlands must take reduction measures in support of this scenario.

4.84 It is an established fact that with the current emission reduction policy of 20% at most in an EU context (about 17% in the Netherlands) for the year 2020, the State does not meet the standard which according to the latest scientific knowledge and in the international climate policy is required for Annex I countries to meet the 2°C target.

4.85 Urgenda is correct in arguing that the postponement of mitigation efforts, as currently supported by the State (less strict reduction between the present day and 2030 and a significant reduction as of 2030), will cause a cumulation effect, which will result in higher levels of CO2 in the atmosphere in comparison to a more even procentual or linear decrease of emissions starting today. A higher reduction target for 2020 (40%, 30% or 25%) will cause lower total, cumulated greenhouse gas emissions across a longer period of time in comparison with the target of less than 20% chosen by the State. The court agrees with Urgenda that by choosing this reduction path, even though it is also aimed at realising the 2°C target, will in fact make significant contributions to the risk of hazardous climate change and can therefore not be deemed as a sufficient and acceptable alternative to the scientifically proven and acknowledged higher reduction path of 25-40% in 2020.

4.86 This would only be different if the reduction target of 25-40% was so disproportionately burdensome for the Netherlands (economically) or for the State (due to its limited financial means) that this target should be deviated from to prevent a great potential danger. However, the State did not argue that this is the case. On the contrary: the State also argues that a higher reduction target is one of the possibilities. This leads the court to the conclusion regarding this issue of the dispute that the State, given the limitation of its discretionary power discussed here, in case of a reduction below 25-40% fails to fulfil its duty of care and therefore acts unlawfully. Although it has been established that the State in the past committed to a 30% reduction target and it has not been established that this higher reduction target is not feasible, the court sees insufficient grounds to compel the State to adopt a higher level than the minimum level of 25%. According to the scientific standard, a reduction target of this magnitude is the absolute minimum and sufficiently effective, for the Netherlands, to avert the danger of hazardous climate change, but the obligation to adhere to a higher percentage clashes with the discretionary power vested in the State, also with due regard for the limitation discussed here.

Attributability

4.87 From the aforementioned considerations regarding the nature of the act (which includes the omission) of the government it ensues that the excess greenhouse gas emission in the Netherlands that will occur between the present time and 2020 without further measures, can be attributed to the State. After all, the State has the power to issue rules or other measures, including community information, to promote the transition to a sustainable society and to reduce greenhouse gas emission in the Netherlands.

Damages

4.88 The State has argued that an allowance of one of Urgenda’s claims, although it requests preventative legal protection, there is at least the possibility of damages in the form of a decrease in assets or loss of benefits. Although the State acknowledges that it is not required for damages to actually have been incurred, the State believes that it has to be established that Urgenda’s interests are concretely at risk of being affected. The State also argues that it is insufficient that there is a risk in abstract terms or that there is a chance that anywhere in the world a risk of loss will occur for anyone. Urgenda has responded by stating that it has a sufficiently concrete interest.

4.89 The court finds as follows. It is an established fact that climate change is occurring partly due to the Dutch greenhouse gas emissions. It is also an established fact that the negative consequences are currently being experienced in the Netherlands, such as heavy precipitation, and that adaptation measures are already being taken to make the Netherlands “climate-proof”. Moreover, it is established that if the global emissions, partly caused by the Netherlands, do not decrease substantially, hazardous climate change will probably occur. In the opinion of the court, the possibility of damages for those whose interests Urgenda represents, including current and future generations of Dutch nationals, is so great and concrete that given its duty of care, the State must make an adequate contribution, greater than its current contribution, to prevent hazardous climate change.

Causal link

4.90 From the above considerations, particularly in 4.79, it follows that a sufficient causal link can be assumed to exist between the Dutch greenhouse gas emissions, global climate change and the effects (now and in the future) on the Dutch living climate. The fact that the current Dutch greenhouse gas emissions are limited on a global scale does not alter the fact that these emission contribute to climate change. The court has taken into consideration in this respect as well that the Dutch greenhouse emissions have contributed to climate change and by their nature will also continue to contribute to climate change.

Relativity

4.91 The government’s care for a safe living climate at least extends across Dutch territory. In view of the fact that Urgenda also promotes the interests of persons living on this territory now and in the future, the court has arrived at the opinion that the breached security standard – exercising due care in combating climate change – also extends to combating possible damages incurred by Urgenda as a result of this, thereby meeting the so-called relativity requirement.

4.92 No decision needs to be made on whether Urgenda’s reduction claim can als be successful in so far as it also promotes the rights and interests of current and future generations from other countries. After all, Urgenda is not required to actually serve that wide “support base” to be successful in that claim, as the State’s unlawful acts towards the current or future population of the Netherlands is sufficient.

Conclusion regarding the State’s legal obligation

5.

4.93 Based on the foregoing, the court concludes that the State – apart from the defence to be discussed below – has acted negligently and therefore unlawfully towards Urgenda by starting from a reduction target for 2020 of less than 25% compared to the year 1990.

THE RULING

The court:

5.1 orders the State to limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, so that this volume will have reduced by at least 25% at the end of 2020 compared to the level of the year 1990, as claimed by Urgenda, in so far as acting on its own behalf;

5.2

5.3

5.4

5.5 orders the State to pay the costs of the proceedings incurred by Urgenda (acting on its own behalf) and estimates these costs at € 13,521.82, plus statutory interest, as from fourteen days following this judgment;

declares this judgment provisionally enforceable to this extent;

compensates the other costs of the proceedings, in the sense that the Parties bear their own costs to this extent;

rejects all other claims.

This judgment was passed by mr. H.F.M. Hofhuis, mr. J.W. Bockwinkel and mr. I. Brand and pronounced in open court on 24 June 2015.

(Footnotes Omitted)

INITIAL APPEAL AND FINAL SUPREME COURT RULING (2019)56

Summary of the Decision

The issue in this case is whether the Dutch State is obliged to reduce, by the end of 2020, the emission of greenhouse gases originating from Dutch soil by at least 25% compared to 1990, and whether the courts can order the State to do so.

Urgenda’s claim and the opinions of the District Court and the Court of Appeal

Urgenda sought a court order directing the State to reduce the emission of greenhouse gases so that, by the end of 2020, those emissions will have been reduced by 40%, or in any case at by at least 25%, compared to 1990. In 2015, the District Court allowed Urgenda’s claim, in the sense that the State was ordered to reduce emissions by the end of 2020 by at least 25% compared to 1990. In 2018, the Court of Appeal confirmed the District Court’s judgment.

Appeal in cassation

The State instituted an appeal in cassation in respect of the Court of Appeal’s decision, asserting a large number of objections to that decision. The deputy Procurator General and the Advocate General advised the Supreme Court to reject the State’s appeal and thus to allow the Court of Appeal’s decision to stand.

Opinion of the Supreme Court

The Supreme Court concludes that the State’s appeal in cassation must be rejected. That means that the order which the District Court issued to the State and which was confirmed by the Court of Appeal, directing the State to reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990, will stand as a final order. The Supreme Court’s opinion rests on the facts and assumptions which were established by the Court of Appeal and which were not disputed by the State or Urgenda in cassation. In cassation, the Supreme Court determines whether the Court of Appeal properly applied the law and whether, based on the facts that may be taken into consideration, the Court of Appeal’s opinion is comprehensible and adequately substantiated. The grounds for the Supreme Court’s judgment are laid down below in sections 4-8 of the judgment. These grounds will be summarised below. This summary does not supersede the grounds for this judgment and does not fully reflect the Supreme Court’s opinion.

Dangerous climate change (see paras. 4.1-4.8, below)

Urgenda and the State both endorse the view of climate science that a genuine threat exists that the climate will undergo a dangerous change in the coming decades. There is a great deal of agreement on the presence of that threat in climate science and the international community. In that respect and briefly put, this comes down to the following. The emission of greenhouse

56 Date 20 December 2019, JUDGMENT, In the matter between: THE STATE OF THE NETHERLANDS (MINISTRY OF ECONOMIC AFFAIRS AND CLIMATE POLICY), seated in The Hague, CLAIMANT in cassation, referred to hereinafter as: ‘the State’, counsel: attorneys K. Teuben, M.W. Scheltema and J.W.H. van Wijk, and STICHTING URGENDA, having its office in Amsterdam, RESPONDENT in cassation, referred to hereinafter as: ‘Urgenda’, counsel: attorney F.E. Vermeulen. Source: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR(2019, Hoge Raad, 19/00135 (Engels) 1/13/20, 1(48 PM).

gases, including CO2, is leading to a higher concentration of those gases in the atmosphere. These greenhouse gases retain the heat radiated by the earth. Because over the last century and a half since the start of the industrial revolution, an ever-increasing volume of greenhouse gases is being emitted, the earth is becoming warmer and warmer. In that period, the earth has warmed by approximately 1.1°C, the largest part of which (0.7°C) has occurred in the last forty years. Climate science and the international community largely agree on the premise that the warming of the earth must be limited to no more than 2°C, and according to more recent insights to no more than 1.5°C. The warming of the earth beyond that temperature limit may have extremely dire consequences, such as extreme heat, extreme drought, extreme precipitation, a disruption of ecosystems that could jeopardise the food supply, among other things, and a rise in the sea level resulting from the melting of glaciers and the polar ice caps. That warming may also result in tipping points, as a result of which the climate on earth or in particular regions of earth changes abruptly and comprehensively. All of this will jeopardise the lives, welfare and living environment of many people all over the world, including in the Netherlands. Some of these consequences are already happening right now.

Protection of human rights based on the ECHR (see paras. 5.2.1-5.5.3, below)

The European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) requires the states which are parties to the convention to protect the rights and freedoms established in the convention for their inhabitants. Article 2 ECHR protects the right to life, and Article 8 ECHR protects the right to respect for private and family life. According to the case law of the European Court of Human Rights (ECtHR), a contracting state is obliged by these provisions to take suitable measures if a real and immediate risk to people’s lives or welfare exists and the state is aware of that risk.

The obligation to take suitable measures also applies when it comes to environmental hazards that threaten large groups or the population as a whole, even if the hazards will only materialise over the long term. While Articles 2 and 8 ECHR are not permitted to result in an impossible or disproportionate burden being imposed on a state, those provisions do oblige the state to take measures that are actually suitable to avert the imminent hazard as much as reasonably possible. Pursuant to Article 13 ECHR, national law must offer an effective legal remedy against a violation or imminent violation of the rights that are safeguarded by the ECHR. This means that the national courts must be able to provide effective legal protection.

Global problem and national responsibility (see paras. 5.6.1-5.8, below)

The risk of dangerous climate change is global in nature: greenhouse gases are emitted not just from Dutch territory, but around the world. The consequences of those emissions are also experienced around the world. The Netherlands is a party to the United Nations Framework Convention on Climate Change (UNFCCC). The objective of that convention is to keep the concentration of greenhouse gases in the atmosphere to a level at which a disruption of the climate system through human action can be prevented. The UNFCCC is based on the premise that all member countries must take measures to prevent climate change, in accordance with their specific responsibilities and options. Each country is thus responsible for its own share. That means that a country cannot escape its own share of the responsibility to take measures by arguing that compared to the rest of the world, its own emissions are relatively limited in scope and that a reduction of its own emissions would have very little impact on a global scale.

The State is therefore obliged to reduce greenhouse gas emissions from its territory in proportion to its share of the responsibility. This obligation of the State to do ‘its part’ is based on Articles 2 and 8 ECHR, because there is a grave risk that dangerous climate change will occur that will endanger the lives and welfare of many people in the Netherlands.

What, specifically, does the State’s obligation to do ‘its part’ entail? (see paras. 6.1-7.3.6, below)

When giving substance to the positive obligations imposed on the State pursuant to Articles 2 and 8 ECHR, one must take into account broadly supported scientific insights and internationally accepted standards. Important in this respect are, among other things, the reports from the IPCC. The IPCC is a scientific body and intergovernmental organisation that was set up in the context of the United Nations to handle climatological studies and developments. The IPCC’s 2007 report contained a scenario in which the warming of the earth could reasonably be expected to be limited to a maximum of 2°C. In order to achieve this target, the Annex I countries (these being the developed countries, including the Netherlands) would have to reduce their emissions in 2020 by 25-40%, and in 2050 by 80-95%, compared to 1990.

At the annual climate conferences held in the context of the UNFCCC since 2007, virtually every country has regularly pointed out the necessity of acting in accordance with the scenario of the IPCC and achieving a 25-40% reduction of greenhouse gas emissions in 2020. The scientifically supported necessity of reducing emissions by 30% in 2020 compared to 1990 has been expressed on multiple occasions by and in the EU.

Furthermore, since 2007, a broadly supported insight has arisen that, to be safe, the warming of the earth must remain limited to 1.5°C, rather than 2°C. The Paris Agreement of 2015 therefore expressly states that the states must strive to limit warming to 1.5°C. That will require an even greater emissions reduction than was previously assumed. All in all, there is a great degree of consensus on the urgent necessity for the Annex I countries to reduce greenhouse gas emissions by at least 25-40% in 2020. The consensus on this target must be taken into consideration when interpreting and applying Articles 2 and 8 ECHR. The urgent necessity for a reduction of 25- 40% in 2020 also applies to the Netherlands on an individual basis.

The policy of the State (see paras. 7.4.1-7.5.3, below)

The State and Urgenda are both of the opinion that it is necessary to limit the concentration of greenhouse gases in the atmosphere in order to in order to achieve either the 2°C target or the 1.5°C target. Their views differ, however, with regard to the speed at which greenhouse gas emissions must be reduced. Until 2011, the State’s policy was aimed at achieving an emissions reduction in 2020 of 30% compared to 1990. According to the State, that was necessary to stay on a credible pathway to keep the 2°C target within reach. After 2011, however, the State’s reduction target for 2020 was lowered from a 30% reduction by the Netherlands to a 20% reduction in an EU context. After the reduction in 2020, the State intends to accelerate the reduction to 49% in 2030 and 95% in 2050. Those targets for 2030 and 2050 have since been laid down in the Dutch Climate Act.

The State has not explained, however, that – and why – a reduction of just 20% in 2020 is considered responsible in an EU context, in contrast to the 25-40% reduction in 2020, which is internationally broadly supported and is considered necessary. There is a broad consensus within

climate science and the international community that the longer reduction measures to achieve the envisaged final target are postponed, the more comprehensive and more expensive they will become. Postponement also creates a greater risk of an abrupt climate change occurring as the result of a tipping point being reached. In light of that generally endorsed insight, it was up to the State to explain that the proposed acceleration of the reduction after 2020 would be feasible and sufficiently effective to meet the targets for 2030 and 2050, and thus to keep the 2°C target and the 1.5°C target within reach. The State did not do this, however. The Court of Appeal was thus entitled to rule that the State must comply with the target, considered necessary by the international community, of a reduction by at least 25% in 2020.

The courts and the political domain (see paras. 8.1-8.3.5, below)

The State has asserted that it is not for the courts to undertake the political considerations necessary for a decision on the reduction of greenhouse gas emissions. In the Dutch system of government, the decision-making on greenhouse gas emissions belongs to the government and parliament. They have a large degree of discretion to make the political considerations that are necessary in this regard. It is up to the courts to decide whether, in taking their decisions, the government and parliament have remained within the limits of the law by which they are bound. Those limits ensue from the ECHR, among other things. The Dutch Constitution requires the Dutch courts to apply the provisions of this convention, and they must do so in accordance with the ECtHR’s interpretation of these provisions. This mandate to the courts to offer legal protection, even against the government, is an essential component of a democratic state under the rule of law. The Court of Appeal’s judgment is consistent with the foregoing, as the Court of Appeal held that the State’s policy regarding greenhouse gas reduction is obviously not meeting the requirements pursuant to Articles 2 and 8 ECHR to take suitable measures to protect the residents of the Netherlands from dangerous climate change. Furthermore, the order which the Court of Appeal issued to the State was limited to the lower limit (25%) of the internationally endorsed, minimum necessary reduction of 25-40% in 2020. The order that was issued leaves it up to the State to determine which specific measures it will take to comply with that order. If legislative measures are required to achieve such compliance, it is up to the State to determine which specific legislation is desirable and necessary.

Conclusion

In short, the essence of the Supreme Court’s judgment is that the order which the District Court issued to the State and which was confirmed by the Court of Appeal, directing the State to reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990, will be allowed to stand. Pursuant to Articles 2 and 8 ECHR, the Court of Appeal can and may conclude that the State is obliged to achieve that reduction, due to the risk of dangerous climate change that could have a severe impact on the lives and welfare of the residents of the Netherlands.

(d) Judgment of the Court of Appeal

2.3.2 The Court of Appeal confirmed the District Court’s judgment. In so doing, the Court of Appeal held as follows.

Urgenda’s standing

Dutch law determines who is permitted access to the Dutch courts, including, in the case of Urgenda in these proceedings, Article 3:305a DCC, which provides for class actions brought by interest groups. Since individuals who fall under the State’s jurisdiction may rely on Articles 2 and 8 ECHR, which have direct effect in the Netherlands, Urgenda may also do so on behalf of these individuals, pursuant to Article 3:305a DCC. (para. 36) The parties do not dispute that Urgenda has standing to pursue its claim to the extent it is acting on behalf of the current generation of Dutch nationals against the emission of greenhouse gases in Dutch territory. It is entirely plausible that the current generation of Dutch nationals, in particular but not limited to the younger individuals in this group, will have to deal with the adverse effects of climate change in their lifetime if global emissions of greenhouse gases are not adequately reduced. (para. 37) Their interests lend themselves to consolidation as is required for instituting a claim pursuant to Article 3:305a DCC. (para. 38)

Articles 2 and 8 ECHR

The State has a positive obligation pursuant to Article 2 ECHR to protect the lives of citizens within its jurisdiction, while Article 8 ECHR obliges the State to protect their right to their home life and private life. This obligation applies to all activities, public and non-public, which could jeopardise the rights protected in these articles, and certainly in the face of industrial activities which by their very nature are dangerous. If the government knows that there is a real and imminent threat, the State must take precautionary measures to prevent infringement as far as possible. (paras. 39-43)

Genuine threat of dangerous climate change

The established facts and circumstances imply that there is a real threat of dangerous climate change, resulting in the serious risk that the current generation of Dutch inhabitants will be confronted with losing their lives or having their family lives disrupted. Articles 2 and 8 ECHR imply that the State has a duty to protect against this genuine threat. (paras. 44-45)

Is the State acting unlawfully by not reducing by at least 25% by the end of 2020?

The end goal is clear and is not disputed between the parties. By the year 2100, global greenhouse gas emissions must have ceased entirely. Nor do the parties hold differing opinions as to the required interim target of 80-95% reduction relative to 1990 by 2050, and Urgenda endorses the reduction target of 49% relative to 1990 by 2030, as established by the government. The dispute between the parties specifically concerns the question of whether the State can be required to achieve a reduction of at least 25% relative to 1990 by the end of 2020. (para. 46)

A significant effort will have to be made between now and 2030 to reach the 49% target in 2030; more efforts than the limited efforts the Netherlands has undertaken so far. It has also

been established that it would be advisable to start the reduction efforts at as early a stage as possible to limit the total emissions in this period. Delaying the reduction will lead to greater risks for the climate. A delay would, after all, allow greenhouse gas emissions to continue in the meantime; greenhouse gases which would linger in the atmosphere for a very long time and further contribute to global warming. An even distribution of reduction efforts over the period up to 2030 would mean that the State should achieve a substantially higher reduction in 2020 than 20%. An even distribution is also the starting point of the State for its reduction target of 49% by 2030, which has been derived in a linear fashion from the 95% target for 2050. If extrapolated to the present, this would result in a 28% reduction by 2020, as confirmed by the State in answering the Court of Appeal’s questions.” (para. 47)

In AR4, the IPCC concluded that a concentration level not exceeding 450 ppm in 2100 is permissible to keep the two-degree target within reach. Following an analysis of the various reduction scenarios, the IPCC concluded that in order to reach this concentration level, the total greenhouse gas emissions in 2020 of Annex I countries, of which the Netherlands is one, must be 25-40% lower than 1990 levels. In AR5, the IPCC also assumed that a concentration level of 450 ppm may not be exceeded in order to achieve the two-degree target. (para. 48) It is highly uncertain whether it will be possible – as AR5 assumes – to use certain technologies to extract CO2 from the atmosphere. Given the current state of affairs, climate scenarios based on such technologies bear little resemblance to reality. AR5 might thus have painted too rosy a picture, and it cannot be assumed outright, as the State does, that the ‘multiple mitigation pathways’ listed by the IPCC in AR5 could, as a practical matter, lead to the achievement of the two-degree target. Furthermore, it is plausible that no reduction percentages as of 2020 were included in AR5, because, in 2014, the IPCC’s focus was on targets for 2030. Therefore, the AR5 report does not give cause to assume that the reduction scenario laid down in AR4 has been superseded and that a reduction of less than 25-40% by 2020 would now be sufficient to achieve the two-degree target. In order to assess whether the State has met its duty of care, the Court of Appeal will take as a starting point that an emission reduction of 25-40% in 2020 is required to achieve the two-degree target. (para. 49)

The 450 ppm scenario and the related necessity to reduce CO2 emissions by 25-40% by 2020 are absolutely not overly pessimistic starting points to use as a basis for determining the State’s duty of care. It is not certain whether the two-degree target can be achieved with this scenario. Furthermore, climate science has now acknowledged that a temperature rise of 1.5°C is much more likely to be safe than a rise of 2°C. (para. 50)

The IPCC report which states that a reduction of 25-45% by the end of 2020 is needed to achieve the two-degree target (AR4) dates all the way back to 2007. Since that time, virtually all COPs (in Bali, Cancun, Durban, Doha and Warsaw) have referred to this 25-40% standard and Annex I countries have been urged to align their reduction targets accordingly. This may not have established a legal standard with a direct effect, but it does confirm the fact that a reduction of at least 25-40% in CO2 emissions is needed to prevent dangerous climate change. (para. 51)

Until 2011, the Netherlands assumed its own reduction target to be 30% in 2020. A letter dated 12 October 2009 from the Minister of VROM shows that the State itself was convinced that a scenario with a reduction of less than 25%-40% in 2020 would lack credibility to keep the two-degree target within reach. The Dutch reduction target for 2020 was subsequently

adjusted downwards. But a substantiation based on climate science was never given, while it is an established fact that postponing reductions in the meantime will cause continued emissions of CO2, which in turn will contribute to further global warming. More specifically, the State failed to give reasons why a reduction of only 20% by 2020 (at the EU level) should currently be regarded as credible, for instance by presenting a scenario which proves how – in concert with the efforts of other countries – the currently proposed postponed reduction could still lead to achieving the two-degree target. The EU itself also deemed a reduction of 30% for 2030 necessary to prevent dangerous climate change. (para. 52)

The State’s Defences

The State asserts that a ‘waterbed effect’ would result if the Netherlands takes measures to reduce greenhouse gas emissions that fall within the scope of the ETS. Specifically, those measures would create leeway for other EU countries to emit more greenhouse gases. Therefore, according to the State, national measures to reduce greenhouse gas emissions within the framework of the ETS are pointless. This argument does not hold. Just like the Netherlands, other EU countries bear their own responsibility for reducing CO2 emissions as much as possible. It cannot automatically be assumed that the other Member States will take less far-reaching measures than the Netherlands. On the contrary, compared to Member States such as Germany, the United Kingdom, Denmark, Sweden and France, Dutch reduction efforts are lagging far behind. (paras. 55 and 56)

The State also pointed out the risk of ‘carbon leakage’, which the State understands to be the risk that companies will move their production to other countries with less strict greenhouse gas reduction obligations. The State has failed to substantiate that this risk will actually occur if the Netherlands were to increase its efforts to reduce greenhouse gas emissions before the end of 2020. (para. 57)

The State has also argued that adaptation and mitigation are complementary strategies to limit the risks of climate change and that Urgenda has failed to appreciate the adaptation measures that the State has taken or will take. This argument also fails. Although it is true that the consequences of climate change can be cushioned by adaptation, it has not been made clear or plausible that the potentially disastrous consequences of excessive global warming can be adequately prevented with adaptation. So while it is certainly logical for the State also to take adaptation measures, this does not diminish its obligation to reduce CO2 emissions quicker than it has planned. (para. 59)

The State has furthermore argued that the emission reduction percentage of 25-40% in 2020 is intended for the Annex I countries as a whole, and that this percentage can therefore not be taken as a starting point for the emission reduction an individual Annex I country, such as the Netherlands, should achieve. The State has failed to provide substantiation for why a lower emission reduction percentage should apply to the Netherlands than to the Annex I countries as a whole. That is not obvious, considering a distribution in proportion to the per capita GDP, which inter alia has been taken as a starting point in the EU’s Effort Sharing Decision for distributing the EU emission reductions among the Member States. It can be assumed that the Netherlands has one of the highest per capita GDPs of the Annex I countries and the per capita GDP in any case is far above the average of those countries. That is also evident from Appendix II of the Effort Sharing Decision, in which the Netherlands is allocated a reduction percentage (16%

relative to 2005) that is among the highest of the EU Member States. It is therefore reasonable to assume that what applies to the Annex I countries as a whole should at least also apply to the Netherlands. (para. 60)

The State has also asserted that Dutch greenhouse gas emissions, in absolute terms and compared with global emissions, are minimal, that the State cannot solve the problem on its own, that the worldwide community must cooperate. These arguments are not such that they warrant the absence of more ambitious, genuine action. The Court of Appeal, too, acknowledges that this is a global problem and that the State cannot solve this problem on its own. However, this does not release the State from its obligation to take measures in/on its territory, within its capabilities, which in concert with the efforts of other states provide protection from the hazards of dangerous climate change. (paras. 61 and 62)

The fact that full scientific certainty regarding the efficacy of the ordered reduction scenario is lacking does not mean, given the due observance of the precautionary principle, that the State is entitled to refrain from taking measures. The high degree of plausibility of that efficacy is sufficient. (para. 63)

The existence of a real risk of the danger for which measures have to be taken is sufficient to issue an order. It has been established that this is the case. Moreover, if the opinion of the State were to be followed, an effective legal remedy for a global problem as complex as this one would be lacking. After all, each state held accountable would then be able to argue that it does not have to take measures if other states do not do so either. That is a consequence that cannot be accepted, also because Urgenda does not have the option to summon all eligible states to appear in a Dutch court. (para. 64)

Regarding the plea of a lack of the required relativity as meant in Article 6:163 DCC, the Court of Appeal notes at the outset that these proceedings constitute an action for an order and not an action for damages. The standards that have been violated (Articles 2 and 8 ECHR) do seek to protect Urgenda (or those it represents). (para. 65)

The State argues that the system of the separation of powers should not be interfered with because it is not the courts, but the democratically legitimised government, that is the appropriate body to make the attendant policy choices. This argument is rejected in this case, also because the State violates human rights, which calls for the provision of measures, while at the same time the order to reduce emissions gives the State sufficient room to decide how it can comply with the order. (para. 67)

The District Court correctly held that Urgenda’s claim is not intended to create legislation, either by parliament or by lower government bodies, and that the State retains complete freedom to determine how it will comply with the order. The order also will in no way prescribe the substance which this legislation must have. For this reason alone, the order is not an ‘order to enact legislation’. Moreover, the State has failed to substantiate why compliance with the order can only be achieved through creating legislation by parliament or by lower government bodies. (para. 68)

Conclusion of the Court of Appeal

The foregoing implies that, up to now, the State has done too little to prevent dangerous climate change and is doing too little to catch up, at least in the short term (up to the end of 2020). Targets for 2030 and beyond do not diminish the fact that a dangerous situation is imminent which requires intervention right now. In addition to the risks in that context, the social costs also come into play. The later reduction actions are taken, the sooner the available carbon budget will be depleted, which in turn would require considerably more ambitious measures to be taken at a later stage, as is acknowledged by the State, to ultimately achieve the desired level of 95% reduction by 2050. (para. 71)

The State cannot hide behind the reduction target of 20% by 2020 at EU level. First of all, also the EU deems a greater reduction in 2020 necessary from a climate science perspective. In addition, the EU as a whole is expected to achieve a reduction of 26-27% in 2020; much higher than the agreed 20%. Also taken into consideration is the fact that, in the past, the Netherlands, as an Annex I country, acknowledged the severity of the climate situation time and again and, mainly based on climate scientific arguments, for years premised its policy on a reduction of 25-40% by 2020, with a concrete policy target of 30% by then. After 2011, this policy objective was adjusted downwards to 20% by 2020 at EU level, without any scientific substantiation and despite the fact that more and more was becoming known about the serious consequences of greenhouse gas emissions for global warming. (para. 72)

Based on this, the Court of Appeal held that the State was failing to fulfil its duty of care pursuant to Articles 2 and 8 ECHR by not wanting to reduce emissions by at least 25% by the end of 2020. A reduction of 25% should be considered a minimum, in connection with which recent insights about an even more ambitious reduction in connection with the 1.5°C target have not even been taken into consideration. There is a genuine chance that the reduction by 2020 will prove to be (substantially) lower than 25%. Such a margin of uncertainty is unacceptable. Since there also are clear indications that the current measures will be insufficient to prevent dangerous climate change, even leaving aside the question of whether the current policy will actually be implemented, measures have to be chosen, also in view of the precautionary principle, that are safe, or at least as safe as possible. The very serious dangers, not contested by the State, associated with a temperature rise of 2°C or 1.5°C – let alone higher – also preclude such a margin of uncertainty. (para. 73)

(a) The meaning of Articles 1, 2 and 8 ECHR; positive treaty obligations

5.2.1 Article 1 ECHR provides that the contracting parties must secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the ECHR. In other words, ECHR protection is afforded to the persons who fall within the states’ jurisdiction. In the Netherlands this regards, primarily and to the extent relevant in this case, the residents of the Netherlands.

5.2.2 Article 2 ECHR protects the right to life. According to established ECtHR case law, this provision also encompasses a contracting state’s positive obligation to take appropriate steps to safeguard the lives of those within its jurisdiction. According to that case law, this obligation applies, inter alia, if the situation in question entails hazardous industrial activities, regardless of whether these are

5.3.1 conducted by the government itself or by others, and also in situations involving natural disasters. The ECtHR has on multiple occasions found that Article 2 ECHR was violated with regard to a state’s acts or omissions in relation to a natural or environmental disaster. It is obliged to take appropriate steps if there is a real and immediate risk to persons and the state in question is aware of that risk. In this context, the term ‘real and immediate risk’ must be understood to refer to a risk that is both genuine and imminent. The term ‘immediate’ does not refer to imminence in the sense that the risk must materialise within a short period of time, but rather that the risk in question is directly threatening the persons involved. The protection of Article 2 ECHR also regards risks that may only materialise in the longer term.

5.2.3 Article 8 ECHR protects the right to respect for private and family life. This provision also relates to environmental issues. The ECHR may not entail a right to protection of the living environment, but according to established ECtHR case law, protection may be derived from Article 8 ECHR in cases in which the materialisation of environmental hazards may have direct consequences for a person’s private lives and are sufficiently serious, even if that person’s health is not in jeopardy. According to that case law, when it comes to environmental issues, Article 8 ECHR encompasses the positive obligation to take reasonable and appropriate measures to protect individuals against possible serious damage to their environment. The ECtHR has found that Article 8 ECHR was violated in various cases involving environmental harm. The obligation to take measures exists if there is a risk that serious environmental contamination may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely. That risk need not exist in the short term.

5.2.4 According to the ECtHR, when it comes to activities that are hazardous to the environment, the positive obligation implied by Article 8 ECHR largely overlaps with the obligation implied by Article 2 ECHR. The case law regarding the former obligation therefore applies to the latter obligation. In the case of environmentally hazardous activities, the state is expected to take the same measures pursuant to Article 8 ECHR that it would have to take pursuant to Article 2 ECHR. Therefore, the obligations pursuant to Articles 2 and 8 ECHR

will be referred to collectively below. The protection afforded by Articles 2 and 8 ECHR is not limited to specific persons, but to society or the population as a whole. The latter is for instance the case with environmental hazards. In the case of environmental hazards that endanger an entire region, Articles 2 and 8 ECHR offer protection to the residents of that region.

5.3.2 The obligation to take appropriate steps pursuant to Articles 2 and 8 ECHR also encompasses the duty of the state to take preventive measures to counter the danger, even if the materialisation of that danger is uncertain. This is consistent with the precautionary principle. If it is clear that the real and immediate risk referred to above in paras. 5.2.2 and 5.2.3 exists, states are obliged to take

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5.6.1 appropriates steps without having a margin of appreciation. The states do have discretion in choosing the steps to be taken, although these must actually be reasonable and suitable. The obligation pursuant to Articles 2 and 8 ECHR to take appropriate steps to counter an imminent threat may encompass both mitigation measures (measures to prevent the threat from materialising) or adaptation measures (measures to lessen or soften the impact of that materialisation). According to ECtHR case law, which measures are suitable in a given case depends on the circumstances of that case.

5.3.3 The court may determine whether the measures taken by a state are reasonable and suitable. The policy a state implements when taking measures must be consistent and the state must take measures in good time. A state must take due diligence into account in its policy. The court can determine whether the policy implemented satisfies these requirements. In many instances found in ECtHR case law, a state’s policy has been found to be inadequate, or a state has failed to provide sufficient substantiation that its policy is not inadequate. In its judgment in Jugheli et al./Georgia, for example, the ECtHR held as follows: “76. The Court reiterates that it is not its task to determine what exactly should have been done in the present situation to reduce the impact of the plant’s activities upon the applicants in a more efficient way. However, it is within the Court’s jurisdiction to assess whether the Government approached the problem with due diligence and gave consideration to all the competing interests. In this respect the Court reiterates that the onus is on the State to justify, using detailed and rigorous data, a situation in which certain individuals bear a heavy burden on behalf of the rest of the community (see Fadeyeva, cited above, § 128). Looking at the present case from this perspective, the Court notes that the Government did not present to the Court any relevant environmental studies or documents informative of their policy towards the plant and the air pollution emanating therefrom that had been affecting the applicants during the period concerned.”

5.3.4 Articles 2 and 8 ECHR must not result in an impossible or under the given circumstances disproportionate burden being imposed on a state. If a state has taken reasonable and suitable measures, the mere fact that those measures were unable to deter the hazard does not mean that the state failed to meet the obligation that had been imposed on it. The obligations ensuing from Articles 2 and 8 ECHR regard measures to be taken by a state, not the achievement, or

Do Articles 2 and 8 ECHR apply to the global problem of the danger of climate change?

guarantee of the achievement, of the envisaged result. Pursuant to Articles 93 and 94 of the Dutch Constitution, Dutch courts must apply every provision of the ECHR that is binding on all persons. Because the ECHR also subjects the Netherlands to the jurisdiction of the ECtHR (Article 32 ECHR), Dutch courts must interpret those provisions as the ECtHR has, or interpret them premised on the same interpretation standards used by the ECtHR.33 This means that the findings above in paras. 5.2.1-5.5.3 must also be used as a premise by the Dutch courts.

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5.6.2 Pursuant to the findings above in paras. 5.2.1-5.3.4, no other conclusion can 5.7.1 5.7.2 be drawn but that the State is required pursuant to Articles 2 and 8 ECHR to take measures to counter the genuine threat of dangerous climate change if this were merely a national problem. Given the findings above in paras. 4.2- 4.7, after all, this constitutes a ‘real and immediate risk’ as referred to above in para. 5.2.2 and it entails the risk that the lives and welfare of Dutch residents could be seriously jeopardised. The same applies to, inter alia, the possible sharp rise in the sea level, which could render part of the Netherlands uninhabitable. The fact that this risk will only be able to materialise a few decades from now and that it will not impact specific persons or a specific group of persons but large parts of the population does not mean – contrary to the State’s assertions – that Articles 2 and 8 ECHR offer no protection from this threat (see above in para. 5.3.1 and the conclusion of paras. 5.2.2 and 5.2.3). This is consistent with the precautionary principle (see para. 5.3.2, above). The mere existence of a sufficiently genuine possibility that this risk will materialise means that suitable measures must be taken.

5.6.3 As the State has asserted, the ECtHR has not yet issued any judgments regarding climate change or decided any cases that bear the hallmarks that are particular to issues of climate change. Those hallmarks are, briefly put, the dangers presented by a globally occurring activity – the emission of greenhouse gases all over the world, and not just from Dutch territory – whose consequences will have a worldwide impact, including in the Netherlands. The question is whether the global nature of the emissions and the consequences thereof entail that no protection can be derived from Articles 2 and 8 ECHR, such that those provisions impose no obligation on the State in this case.

5.6.4 The Supreme Court considers the answer to this question to be sufficiently clear. It will therefore give the answer to this question itself and will not submit it to the ECtHR for an advisory opinion, as is possible but not compulsory under Protocol no. 16 to the ECHR, which entered into effect on 1 June 2019. In addition, both parties have asked the Supreme Court to hand down its judgment before the end of 2019, in view of the time to which the District

Joint responsibility of the states and partial responsibility of individual states

Court’s order, upheld by the Court of Appeal, relates, which is the end of 2020. The answer to the question referred to in 5.6.3 above is in the opinion of the Supreme Court, that, under Articles 2 and 8 ECHR, the Netherlands is obliged to do ‘its part’ in order to prevent dangerous climate change, even if it is a global problem. This is based on the following grounds.

The UNFCCC is based on the idea that climate change is a global problem that needs to be solved globally. Where emissions of greenhouse gases take place from the territories of all countries and all countries are affected, measures will have to be taken by all countries. Therefore, all countries will have to do the necessary. The preamble to this convention states, among other things, the following in this context: “Acknowledging that the global nature of

5.7.3

5.7.4

5.7.5

5.7.6 climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions, (...). Recalling also that States have (...) the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

The objective of the UNFCCC is to stabilise greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous human induced interference with the climate system (Article 2). Article 3 contains various principles to achieve this objective. For instance, Article 3(1) provides that the parties “should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities”. Article 3(3) provides that the parties “should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects”. And Article 4 provides, put succinctly, that all parties will take measures and develop policy in this area. It follows from these provisions that each state has an obligation to take the necessary measures in accordance with its specific responsibilities and possibilities.

At the annual climate change conferences held on the basis of the UNFCCC since 1992, the provisions mentioned above in 5.7.3 have been further developed in various COP decisions. In each case these are based first and foremost on an acknowledgement of the above understanding: all countries will have to do the necessary. Articles 3 et seq. of the 2015 Paris Agreement reiterates this in so many words.

This understanding corresponds to what is commonly referred to as the ‘no harm principle’, a generally accepted principle of international law which entails that countries must not cause each other harm. This is also referred to in the preamble to the UNFCCC (in the section cited in 5.7.2 above). Countries can be called to account for the duty arising from this principle. Applied to greenhouse gas emissions, this means that they can be called upon to make their contribution to reducing greenhouse gas emissions. This approach justifies partial responsibility: each country is responsible for its part and can therefore be called to account in that respect.

This partial responsibility is in line with what is adopted in national and international practice in the event of unlawful acts that give rise to only part of the cause of the damage. Partial responsibility is in line with, inter alia, the Draft Articles on Responsibility of States for Internationally Wrongful Acts, as proposed by the UN International Law Commission and adopted by the UN General Assembly. This is apparent, for example, in the explanatory notes to Article 47(1) thereof, in which the following is remarked: “6. According to paragraph 1 of article 47, where several States are responsible for the

5.7.7

5.7.8

5.7.9 same internationally wrongful act, the responsibility of each State may be invoked in relation to that act. The general rule in international law is that of separate responsibility of a State for its own wrongful acts and paragraph 1 reflects this general rule. (…) 8. Article 47 only addresses the situation of a plurality of responsible States in relation to the same internationally wrongful act. The identification of such an act will depend on the particular primary obligation, and cannot be prescribed in the abstract. Of course, situations can also arise where several States by separate internationally wrongful conduct have contributed to causing the same damage. For example, several States might contribute to polluting a river by the separate discharge of pollutants. (…) In such cases, the responsibility of each participating State is determined individually, on the basis of its own conduct and by reference to its own international obligations.” Many countries have corresponding rules in their liability law system. It is true that Article 3(1) UNFCCC referred to in 5.6.3 above entails that the distribution of the measures to be taken against climate change must not be based solely on the basis of responsibility for past emissions by a country, and that consideration must also be given to the possibilities for countries to reduce their emissions. But that does not detract from the fact that the underlying principle of these widely accepted rules is always that, in short, ‘partial fault’ also justifies partial responsibility.

Partly in view of the serious consequences of dangerous climate change as referred to in 4.2 above, the defence that a state does not have to take responsibility because other countries do not comply with their partial responsibility, cannot be accepted. Nor can the assertion that a country’s own share in global greenhouse gas emissions is very small and that reducing emissions from one’s own territory makes little difference on a global scale, be accepted as a defence. Indeed, acceptance of these defences would mean that a country could easily evade its partial responsibility by pointing out other countries or its own small share. If, on the other hand, this defence is ruled out, each country can be effectively called to account for its share of emissions and the chance of all countries actually making their contribution will be greatest, in accordance with the principles laid down in the preamble to the UNFCCC cited above in 5.7.2.

Also important in this context is that, as has been considered in 4.6 above about the carbon budget, each reduction of greenhouse gas emissions has a positive effect on combating dangerous climate change, as every reduction means that more room remains in the carbon budget. The defence that a duty to reduce greenhouse gas emissions on the part of the individual states does not help because other countries will continue their emissions cannot be accepted for this reason either: no reduction is negligible.

Climate change threatens human rights, as follows from what has been considered in 5.6.2 above. This is also recognised internationally outside the context of the Council of Europe.37 In order to ensure adequate protection from the threat to those rights resulting from climate change, it should be

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5.8 5.9.1 possible to invoke those rights against individual states, also with regard to the aforementioned partial responsibility. This is in line with the principle of effective interpretation, referred to in 5.4.1 above, that the ECtHR applies when interpreting the ECHR and also with the right to effective legal protection

guaranteed by Article 13 ECHR, referred to 5.5.1-5.5.3 above. In view of the considerations in 5.7.2-5.7.9 above, the Supreme Court finds that Articles 2 and 8 ECHR relating to the risk of climate change should be interpreted in such a way that these provisions oblige the contracting states to do ‘their part’ to counter that danger. In light both of the facts set out in 4.2-4.7 and of the individual responsibility of the contracting states, this constitutes an interpretation of the positive obligations laid down in those provisions that corresponds to its substance and purport as mentioned in 5.2.1-5.3.3 above. This interpretation is in accordance with the standards set out in 5.4.1-5.4.3 that the ECtHR applies when interpreting the ECHR and that the Supreme Court

Can this obligation pursuant to Articles 2 and 8 ECHR also be relied upon in a case involving a claim pursuant to Article 3:305a DCC?

must also apply when interpreting the ECHR. It follows from the above that, as the Court of Appeal has ruled, the State is obliged on the basis of Articles 2 and 8 ECHR to take appropriate measures against the threat of dangerous climate change, in accordance with its share as referred to in 5.8 above.

5.9.2 Urgenda, which in this case, on the basis of Article 3:305a DCC, represents the interests of the residents of the Netherlands with respect to whom the obligation referred to in 5.9.1 above applies, can invoke this obligation. After all, the interests of those residents are sufficiently similar and therefore lend themselves to being pooled, so as to promote efficient and effective legal protection for their benefit. Especially in cases involving environmental interests, such as the present case, legal protection through the pooling of interests is highly efficient and effective. This is also in line with Article 9(3) in conjunction with Article 2(5) of the Aarhus Convention, which guarantees interest groups access to justice in order to challenge violations of environmental law, and in line with Article 13 ECHR (see 5.5.1-5.5.3 above).

5.9.3 As the Court of Appeal rightly held in para. 35, the fact that Urgenda does not have a right to complain to the ECtHR on the basis of Article 34 ECHR, because it is not itself a potential victim of the threatened violation of Articles 2 and 8 ECHR, does not detract from Urgenda’s right to institute proceedings. After all, this does not deprive Urgenda of the power to institute a claim under Dutch law in accordance with Article 3:305a DCC on behalf of residents who are in fact such victims.

7.

(c) THE 25-40% TARGET FOR ANNEX I COUNTRIES

7.1 The first question to be addressed in these proceedings is whether the 25% to 40% reduction in greenhouse gas emissions in 2020 compared to 1990, which is based on AR4 (hereinafter: ‘the 25-40% target’), formulated as a target for the Annex I countries, represents a corresponding obligation for the state. The State rightly argues that this target is not a binding rule or agreement in and of itself. The question is therefore whether this target nevertheless binds the State on one or more of the grounds mentioned above in 6.3-6.5. The first question that needs to be answered in this context is (a) to what extent there is support within the international community for the 25-40% target. This question will be dealt with in 7.2.1-7.2.11 below. The next question is (b) whether this target also applies to the Netherlands as an individual country. This question will be dealt with in 7.3.1-7.3.6 below. After that (c) the State’s policy to combat dangerous climate change is discussed in 7.4.1-7.4.6. Lastly (d) in 7.5.1-7.5.3 the question is answered whether it follows from all this that the Netherlands is obliged to meet the 25-40% target, as ruled by the District Court and Court of Appeal. This is based on the facts established by the Court of Appeal.

The State’s policy regarding measures to counter climate change

7.4.1 As considered in 4.8 above, the State acknowledges the need of the target of a maximum concentration of greenhouse gases in the atmosphere of 430 or 450 ppm by 2100, with global warming reasonably expected to be limited to no more than 1.5°C or 2°C. In this context, the State also endorsed the targets set out in the AR4 scenario. As regards that scenario’s targets of 80% to 95% reduction by 2050 and of 450 ppm by 2100 (now 430 ppm by 2100), it still endorses them. For the year 2020, the State assumed a reduction target of 30% until 2011. According to the letter from the Minister of Housing, Spatial Planning and the Environment dated 12 October 2009 cited above in 2.1(27), the State, like the EU (see 7.2.6 and 7.3.3 above), was at the time of the opinion that a reduction of 25% to 40% by 2020 was necessary to stay on a credible track to keep the 2°C target within reach.

7.4.2

7.4.3 After 2011, the State adjusted its target for 2020 downwards to the 20% reduction at EU level as referred to in 7.3.1 above. In these proceedings, the State argues that, on closer inspection, achieving a 25% to 40% reduction by 2020 is not necessary, because the same result can be achieved by accelerating the reduction of greenhouse gas emissions in the Netherlands after 2020. The State argues that it intends to have this accelerated reduction take place after 2020 and that it prefers this reduction path over the AR4 scenario. The question, however, is whether an accelerated reduction of greenhouse gas emissions in the Netherlands after 2020 can indeed achieve the same result. In this context, the following facts taken into account by the Court of Appeal are relevant.

All greenhouse gas emissions lead to a reduction in the carbon budget still available (see also 4.6 above). Any postponement of the reduction of emissions therefore means that emissions in the future will have to be reduced on an

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increasingly large scale in order to make up for the postponement in terms of both of time and size. This means that, in principle, for each postponement of emissions reductions, the reduction measures to be taken at a later date will have to be increasingly far-reaching and costly in order to achieve the intended result, and it will also be riskier. The UNEP already warned about this in its 2013 annual report (see 2.1(22) above).

7.4.4 Following AR4, it became clear that in order to prevent dangerous climate change even greater reductions of greenhouse gas emissions are actually needed in the short term and that this need is becoming increasingly urgent, both before 2020 and in the subsequent period up to 2030 (see also 7.2.87.2.9 above). Also according to the Netherlands Environmental Assessment Agency (Planbureau voor de Leefomgeving) (the PBL) – which is an independent research institute that is part of the Ministry of Infrastructure and the Environment – a policy is needed, in view of the Paris Agreement, that goes far beyond the current policies of the countries in question. According to the PBL in a 2016 report, the Dutch policy should be tightened in the short time in order to align it with the Paris Agreement.

7.4.5 The State acknowledges the fact referred to in 7.4.3 above (para. 71 of the Court of Appeal’s judgments) and does not contest the facts mentioned in 7.4.4 above. Moreover, it has meanwhile formulated a reduction target for 2030 of 49% and for 2050 of 95% (these targets have been laid down in the Dutch Climate Act after the date of the Court of Appeal’s judgment45). The target of 49% for 2030 was derived linearly from the target of 95% for 2050. On request, the State informed the Court of Appeal that if this line were extended to 2020 this would result in a target of 28% for that year (para. 47).

7.4.6 In view of the considerations in 7.4.3-7.4.5 above, there may be serious doubts as to whether, with the 20% reduction envisaged by the State at EU level by 2020, the overall reduction over the next few decades, which the State itself believes to be necessary in any case, is still feasible. After all, the need for this reduction requires the State to aim for a reduction in greenhouse gas emissions by more than 25% by 2020, rather than a reduction that is lower. The State has not explained that and why, despite the above and taking into account the precautionary principle applicable in this context, a policy aimed at 20% reduction by 2020 can still be considered responsible. The State has not provided any insight into which measures it intends to take in the coming years, let alone why these measures, in spite of the above, would be both practically feasible and sufficient to contribute to the prevention of dangerous climate change to a sufficient extent in line with the Netherlands’ share. The State has confined itself to asserting that there “are certainly possibilities” in this context.

Must the State adhere to the 25-40% target?

7.5.1 In view of the above, the Court of Appeal was allowed to rule in para. 52 that the State has insufficiently substantiated that it would be possible for a responsible policy to prevent dangerous climate change to include a

7.5.2

7.5.3 greenhouse gas emissions reduction target of less than at least 25% by 2020. Therefore, in accordance with the foregoing considerations in 6.3-6.5, there is reason to come to the conclusion that the State should in any event adhere to the target of at least 25% reduction by 2020. As stated above, there is a large degree of consensus in the international community and climate science that at least this reduction by the Annex I countries, including the Netherlands, is urgently needed (see 7.2.11 and 7.3.6 above). Proper legal protection means that this consensus can be invoked when implementing the positive obligations incumbent on the State pursuant to Articles 2 and 8 ECHR. The target of achieving a reduction of at least 25% by 2020 is also in line with what the State itself considers necessary for other years (2030, 2050 and 2100 (see 7.4.17.4.5 above). In the context of the positive obligation on the State under Articles 2 and 8 ECHR to take appropriate measures to prevent dangerous climate change, this target can therefore be regarded as an absolute minimum. As the State has not been able to provide a proper substantiation of its claim that deviating from that target is nevertheless responsible (see 7.4.6 above), it must adhere to the target of 25%. It should therefore strive to achieve at least this reduction by 2020, as the Court of Appeal rightly held in para. 53.

The State has also argued, in ground for cassation 8.2, that it meets its obligations under Articles 2 and 8 ECHR by taking adaptation measures, whether or not in combination with mitigation measures already taken and proposed, and that it therefore does not have to meet the 25-40% target. In para. 59, however, the Court of Appeal established fully comprehensibly that although it is correct that the consequences of climate change can be mitigated by taking adaptation measures, it has not been demonstrated or made plausible that the potentially disastrous consequences of excessive global warming can be adequately prevented by such measures. This finding also implies that even if account is taken of the fact that the State is taking adaptation measures, mitigation measures that reduce emissions by at least 25% by 2020 are urgently needed, also for the Netherlands. The State’s aforementioned argument therefore does not hold.

It should also be noted that the Court of Appeal’s judgment implies in paras. 57 and 66 that the State has not sufficiently substantiated that the reduction of at least 25% by 2020 is an impossible or disproportionate burden, as referred to in 5.3.4 above. In this context, the State only referred to the short time remaining until the end of 2020 and to the impairment of the level playing field of the Dutch business community in an international context. In connection with the first argument, the Court of Appeal took into account that the District Court’s order to the State dates back to 2015, i.e. has been in force since then, and that the State has moreover been aware of the seriousness of the climate problem for some time and initially pursued a policy aimed at a 30% reduction by 2020 (para. 66). With respect to the second argument, the Court of Appeal took into account that other EU countries pursue much stricter climate policies and that the State has not explained this argument in more detail (para. 57). By doing so, the Court of Appeal has comprehensibly rejected the State’s assertion

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8.

(a)

that there would be an impossible or disproportionate burden. Ground for cassation 8.4, which accuses the Court of Appeal of not having investigated this assertion, is therefore unfounded.

Assessment of complaints in cassation

7.6.1 The complaints referred to in 4.237-4.248 of the Opinion proffered by the deputy Procurator General and the Advocate General cannot lead to cassation for the reasons stated there.

7.6.2 Insofar as complaints from grounds for cassation 4-8 have not been dealt with in the foregoing, these cannot lead to cassation either. With regard to Article 81(1) DJOA, this does not require any further substantiation since the complaints do not require answers to legal questions in the interest of unity of law or legal development.

PERMISSIBILITY OF THE ORDER ISSUED; POLITICAL DOMAIN

8.1 The State argues in ground for cassation 9 that the District Court’s order to reduce Dutch greenhouse gas emissions by at least 25% in 2020 compared to 1990 levels, which was upheld by the Court of Appeal, is impermissible for two reasons. The first reason is that the order amounts to an order to create legislation, which according to Supreme Court case law is not permissible. The second reason is, briefly put, that it is not for the courts to make the political considerations necessary for a decision on the reduction of greenhouse gas emissions. The following is considered in response to these arguments.

Order to create legislation

8.2.1 If the government is obliged to do something, it may be ordered to do so by the courts, as anyone may be, at the request of the entitled party (Article 3:296 DCC). This is a fundamental rule of constitutional democracy, which has been enshrined in our legal order. As far as the rights and freedoms set out in the ECHR are concerned, this rule is consistent with the right to effective legal protection laid down in Article 13 ECHR referred to above in 5.5.1-5.5.3. Partly in connection with this fundamental rule, the Dutch Constitution stipulates that civil courts have jurisdiction over all claims, so that they can always grant legal protection if no legal protection is offered by another court.

8.2.2 It follows from the considerations in 5.1.7-6.2 above that, in this case, the State has a legal duty by virtue of the protection it must provide to residents of the Netherlands on the basis of Articles 2 and 8 ECHR in order to protect their right to life and their right to private and family life. It may therefore be ordered to comply with this duty by the courts, unless there are grounds for an exception in accordance with Article 3:296 DCC. Under that provision, an exception arises if the law so provides or if it follows from the nature of the obligation or the legal act. The Supreme Court case law relating to orders to create legislation constitutes an application of this exception.

8.2.3 This case law is based on two considerations. First of all, there is the consideration that the courts should not intervene in the political decisionmaking process involved in the creation of legislation. Secondly, there is the consideration that such an order should create an arrangement that also applies to parties other than the parties to the proceedings.

8.2.4 The first consideration does not mean that courts cannot enter the field of political decision-making at all. In the case law referred to above, therefore, the earlier case law of the Supreme Court has been reiterated, which dictates that, on the basis of Article 94 of the Dutch Constitution, the courts must disapply legislation if any binding provisions of treaties entail such. It has also been decided in that case law that the courts may issue a declaratory decision to the effect that the public body in question is acting unlawfully by failing to enact legislation with a particular content. The first consideration on which the case law referred to in 8.2.2 is based must therefore be understood to mean that the courts should not interfere in the political decision-making process regarding the expediency of creating legislation with a specific, concretely defined content by issuing an order to create legislation. In view of the constitutional relationships, it is solely for the legislator concerned to determine for itself whether legislation with a particular content will be enacted. Therefore, the courts cannot order the legislator to create legislation with a particular content.

8.2.5 The second consideration on which the case law referred to in 8.2.2 above is based relates to the circumstance that the civil courts only pronounce binding decisions between the parties to the dispute (cf. Article 236 DCCP). The courts do not have the power to decide in a manner binding on everyone how a statutory provision should read. An order to create legislation is therefore subject to the objection that third parties, which are not involved in the proceedings and are therefore not bound by the judgment, would still be bound (indirectly) by that order by virtue of the fact that that legislation would also apply to them. This objection does not arise in the case of an order not to apply statutory provisions, which applies only to a particular claimant, or in the case of a declaratory decision. The same applies to a general order to take measures, while respecting the legislator’s freedom, as referred to in the second paragraph of 8.2.4 above, to create or not to create legislation with a particular content. After all, the courts in that case do not determine the content of the statutory provision by issuing their order; this determination is still reserved to the legislator in question.

8.2.6 It follows from the above that the courts are only not permitted to issue an order to create legislation with a particular, specific content. After all, only then do the objections arise which are raised in the consideration on which the case law referred to in 8.2.2 above is based. Therefore, the courts are not prevented to issue a declaratory decision to the effect that the omission of legislation is unlawful (see 8.2.4 above). They may also order the public body in question to take measures in order to achieve a certain goal, as long as that order does

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8.2.7 8.3.1 not amount to an order to create legislation with a particular content. In the Supreme Court judgment of 9 April 2010 (SGP), the impermissibility of courts

issuing an order to create legislation is for that reason limited to this case. In light of the foregoing, the District Court’s order, upheld by the Court of Appeal, constitutes an application of the main rule of Article 3:296 DCC. Indeed, this order does not amount to an order to take specific legislative measures, but leaves the State free to choose the measures to be taken in order to achieve a 25% reduction in greenhouse gas emissions by 2020. This is not altered by the fact that many of the possible measures to be taken will require legislation, as argued by the State. After all, it remains for the State to determine what measures will be taken and what legislation will be enacted to achieve that reduction. The exception to Article 3:296 DCC made in the case

Political domain

law referred to in 8.2.2 above therefore does not apply in this case. This brings the Supreme Court to the assessment of the State’s more general argument that it is not for the courts to make the political considerations necessary for a decision on the reduction of greenhouse gas emissions.

8.3.2 As considered in 6.3 above, in the Dutch constitutional system of decisionmaking on the reduction of greenhouse gas emissions is a power of the government and parliament. They have a large degree of discretion to make the political considerations that are necessary in this regard. It is up to the courts to decide whether, in availing themselves of this discretion, the government and parliament have remained within the limits of the law by which they are bound.

8.3.3 The limits referred to in 8.3.2 above include those for the State arising from the ECHR. As considered in 5.6.1 above, the Netherlands is bound by the ECHR and the Dutch courts are obliged under Articles 93 and 94 of the Dutch Constitution to apply its provisions in accordance with the interpretation of the ECtHR. The protection of human rights it provides is an essential component of a democratic state under the rule of law.

8.3.4 This case involves an exceptional situation. After all, there is the threat of dangerous climate change and it is clear that measures are urgently needed, as the District Court and Court of Appeal have established and the State acknowledges as well (see 4.2-4.8 above). The State is obliged to do ‘its part’ in this context (see 5.7.1-5.7.9 above). Towards the residents of the Netherlands, whose interests Urgenda is defending in this case, that duty follows from Articles 2 and 8 ECHR, on the basis of which the State is obliged to protect the right to life and the right to private and family life of its residents (see 5.1-5.6.4 and 5.8-5.9.2 above). The fact that Annex I countries, including the Netherlands, will need to reduce their emissions by at least 25% by 2020 follows from the view generally held in climate science and in the international community, which view has been established by the District Court and the Court of Appeal (see 7.2.1-7.3.6 above). The policy that the State pursues since

2011 and intends to pursue in the future (see 7.4.2 above), whereby measures are postponed for a prolonged period of time, is clearly not in accordance with this, as the Court of Appeal has established. At least the State has failed to make it clear that its policy is in fact in accordance with the above (see 7.4.6 and 7.5.1 above).

(c)

8.3.5 In this case, therefore, the Court of Appeal was allowed to rule that the State is in any case obliged to achieve the aforementioned reduction of at least 25% by 2020.

Assessment of the complaints in cassation

9.

8.4 Ground for cassation 9 therefore cannot lead to cassation either.

DECISION

The Supreme Court:

• rejects the appeal;

• orders the State to pay the costs of the proceedings in cassation, up to this decision estimated on the part of Urgenda at EUR 882.34 in disbursements and EUR 2,200 in fees.

This judgment rendered by Vice President C.A. Streefkerk as chairman and justices G. Snijders, M.V. Polak, T.H. Tanja-van den Broek and H.M. Wattendorff, and pronounced in open court by Vice President C.A. Streefkerk on 20 December 2019.

(Footnotes omitted)

NEW ZEALAND

17.

18. The importance of the Urgenda case within the growing body of climate jurisprudence cannot be overestimated, but in terms of case law on climate displacement New Zealand is the current world leader. After a series of cases in 2000 where Pacific Islanders sought to seek asylum due to climate change at the New Zealand Refugee Status Appeals Authority, there were no notable climate change cases heard up until its replacement in 2010.57 The subsequent authority, the Immigration and Protection Tribunal, has since engaged with the argument from appellants that the effects of climate change ought to be recognised under the Convention. There seems to have been slight progress upon deliberation that climate change effects will at least influence whether a person is eligible for refugee or humanitarian status, even if it cannot form the total basis.

Far and above the most well-known climate displacement case anywhere in the world is the now famous Teitiota case which was initially filed in 2013 with the Immigration and Protection Tribunal which found that Teitiota did not have a right to remain in New Zealand

57 Ministry of Justice, Immigration and Protection, New Zealand Government <https://www.justice.govt.nz/tribunals/ immigration/immigration-and-protection/>.

19. despite climate change-related challenges facing him in Kiribati. He subsequently appealed the decision, which this was again rejected. In 2015, Teitiota again appealed the High Court previous decisions to reject his appeal of refugee status with claims his home island was no longer liveable.58 He claimed ‘to an entitlement to be recognised as a refugee on the basis of changes to his environment in Kiribati caused by sea-level-rise’.59 The Tribunal in its initial stage again noted that the hardships outlined by Mr Teitiota ‘were faced by the population generally’.60 It referred to and it was noted that ‘these claims had all been dismissed because the indiscriminate nature of these environmental events did not point to any nexus with a convention ground’.61 At the High Court appeal this assertion was largely supported. Mr Teitiota’s appeal was conducted through six questions of law, one of which contended fact that ‘green house gasses are responsible for rising sea levels and changes of weather patterns, and as such constitute an indirect but worldwide agency’.62 However the High Court rejected the claim that the ‘international community could be tantamount to the persecutor’.63 Priestley J stated this would not work with the Convention’s framework, as this would suggest that ‘the claimant is seeking refuge within the very countries that are allegedly persecuting him’.64 The Tribunal’s decision was upheld, and Mr Teitiota and his family were deported back to Kiribati.65 He then submitted a complaint to the UN Human Rights Committee which essentially upheld the New Zealand court decisions, but did assert that climate displaced persons could not be arbitrarily returned to their countries if climate change conditions there threatened their rights. All of these decisions are included below.

In another important case which is also included below, in 2014 Sigeo Alesana sought protection as a Tuvaluan man. Amongst other family matters, he claimed that he was ‘at risk of suffering the adverse impacts of climate change’.66 It was noted in the court’s deliberation that ‘life became increasingly more difficult due to the effects of climate change’67 for Mr Alesana in Tuvalu. Mr Alesana’s family was afforded humanitarian protection in New Zealand, it was wrongly reported that the case saw recognition of the world’s first climate refugees.68 While consideration of the impacts of climate change on Mr Alesana’s human rights were deliberated by the tribunal, they were not utilised as a basis for persecution under the Convention. Rather they were noted as a ‘humanitarian factor’ 69 in the case, and was one of the matters ‘taken into account on a cumulative basis’,70 that it was determined Mr Alesana’s family ought not be removed from New Zealand.

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69 Teitiota v Chief Executive, Ministry of Business Innovation and Employment [2014] NZAR 162. Ibid 7. Ibid 30. Ibid 28. Ibid 40. Ibid 55. Ibid 55. N.b. The family was not eligible for the humanitarian visa that Mr Alesana’s family received as they had overstayed their initial visa. AD (Tuvalu) [2014] NZIPT 501370-371, 2. Ibid 9. Harriet Farquhar, ‘Migration with Dignity: Towards a New Zealand Response to Climate Change Displacement in the Pacific’ (2015) 46 Victoria University of Wellington Law Review 29. Ibid 27. Ibid 30.

20. 21. These two cases captured media attention around the world for the potential introduction of ‘climate change refugees’.71 In particular, the case of Mr Teitiota as it went through the appeal process all the way to the High Court. Academic reports have since labelled some of this reporting as ‘sensationalist’ and ‘wrong’.72 Neither case, at any stage of appeal, saw official recognition of climate refugees. Rather, climate change was finally given weighting in refugee related decision-making. In regards to Mr Alesana, considerations of climate change helped see his protection claim for humanitarian assistance under New Zealand Immigration Law accepted73. This demonstrated, for the time being, that ‘while climate change may be a factor which will be considered in determining (a refugee claim), the impacts of climate change alone will not be sufficient’74. This in itself is a derogation from the earlier 2000 tribunal decisions, where climate change was simply regarded as an “unfortunate” scenario independent of asylum claims. In the case of Mr Teitiota, the most significant aspect of his eventual failed claim, was the official court recognition that current refugee law could be construed more widely or is otherwise insufficient. At the initial tribunal hearing, the Tribunal Member stated ‘the requirement of human agency does not mean that environmental degradation… can never create pathways into the Refugee Convention or protected person jurisdiction’.75 This statement was repeated throughout the appeal including in the High Court.76 While it had no bearing on the final decision of the case, it is a substantial move toward finding potential for the persecution element to be construed as inclusive of climate refugees. This statement indicates that while the court regarded Mr Teitiota’s claim as an attempt to the stand the Convention on its head’,77 there is clearly a judicial desire for some kind of alternate approach to refugee claims based on climate change. This sentiment was summed up by Wild J in the final remarks of the Supreme Court Appeal: “No-one should read this judgement as downplaying the importance of climate change. It is a major and growing concern for the international community. The point this judgement makes is that climate change and its effect on countries like Kiribati is not

appropriately addressed under the Refugee Convention.”78 Where current international legislation has fallen short of affording the kind of protection New Zealand’s judiciary has indicated it may like to apply, other domestic avenues are being explored. Partly in response to the rejected cases of Alesana and Teitiota, Jacinta Ardern’s government has cited plans to introduce a new kind of visa for people displaced by rising seas in the Pacific.79 If the plan is followed through, it is thought that it could be used as a model for other refugee receiving nations to find a way to assist victims of climate change in

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79 Treasa Dunworth, ‘REVIEW: International Law Review’ (2015) New Zealand Law Review 285, 309. Ibid 310. Harriet Farquhar, ‘Migration with Dignity: Towards a New Zealand Response to Climate Change Displacement in the Pacific’ (2015) 46 Victoria University of Wellington Law Review 29. Ibid 31. AF (Kiribati) [2013] NZIPT 800413, 55. Teitiota v Chief Executive, Ministry of Business Innovation and Employment [2014] NZAR 162, 25. Treasa Dunworth ‘REVIEW: International Law Review’ (2015) New Zealand Law Review 285, 310. Teitiota v Chief Executive of Ministry of Business, Innovation and Employment [2014] NZCA 173, 41. Charles Anderson, ‘New Zealand considers creating climate change refugee visas’, The Guardian (online), 31 October 2017 <https://www.theguardian.com/world/2017/oct/31/new-zealand-considers-creating-climate-change-refugee-visas>.