On December 20, 2019 the highest court of the Netherlands upheld an earlier decision by a lower court that insufficient action to address climate change posed a “risk of irreversible changes to the worldwide ecosystems and liveability of our planet” and a “serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life… that the State has duty to protect against.” The decision confirms that governments have binding legal obligations based on international human rights law to undertake reductions in emissions of greenhouse gases.

In 2015, Urgenda Foundation, a Dutch NGO, took the Dutch State to court to demand that the government take action to achieve a reduction in Dutch greenhouse gas emissions by at least 25% in 2020 compared to 1990 levels.  The emission of carbon dioxide and other greenhouse gases into the atmosphere is a major cause of rapid global warming.

The Urgenda Foundation and the Dutch State agree that greenhouse gas emissions should be reduced quickly, and ultimately be discontinued almost completely, but they disagree on the speed at which this is supposed to happen. The Dutch State has a target for 2020 of a 20% reduction compared to 1990 levels, which target is set as part of the climate policy of the European Union. Urgenda, on the other hand, believes that, given the serious risks of climate change, the Dutch State’s target is insufficient. Urgenda demands a reduction in Dutch emissions by at least 25% in 2020 compared to 1990 levels.

The District Court in The Hague agreed with Urgenda in 2015, just as the Court of Appeal did in 2018. On December 20, 2019, the Supreme Court upheld the ruling by the Court of Appeal that the Dutch State is obliged to achieve the 25% reduction by the end of 2020, on account of the risk of dangerous climate change that could also have a serious impact on the rights to life and well-being of residents of the Netherlands.

The Supreme Court based its judgment on the UN Climate Convention and on the Dutch State’s legal duties to protect the life and well-being of citizens in the Netherlands, which obligations are laid-down in articles 2 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR). It follows from case law of the European Court of Human Rights that pursuant to these treaty obligations member states are required to take appropriate action when there is a real and immediate risk to the life and well-being of their citizens. According to the Supreme Court, in case of climate change, each member state should contribute its fair share.

There is a large degree of consensus in the scientific and international community on the urgent need for developed countries to reduce greenhouse gas emissions by at least 25% by the end of 2020. Until 2011 it was the policy of the Dutch State to achieve in 2020 a reduction in greenhouse gas emissions of 30% compared to 1990. After 2011, the Dutch State lowered as part of an EU policy its target for emission reduction in 2020 from 30% to 20%, whilst it increased the reduction targets for 2030 and 2050 to 49% and 95%, respectively. The target levels for 2030 and 2050 have since been enacted in Dutch legislation. The Supreme Court ruled that the State has not properly explained why a lower reduction in 2020 would be justified and could still lead, on time, to the targets accepted by the Dutch State for 2030 and 2050.

The Dutch State has argued that it is up to politicians to decide on the reduction of greenhouse gas emissions. According to the Supreme Court, however, the Dutch Constitution requires the Dutch courts to apply the provisions of the ECHR. This role of the courts to offer legal protection is an essential element of a democracy under the rule of law.

The climate has become a topic of discussion by believers and non-believers, dreamers, table bangers and naysayers. This Supreme Court ruling is based solely on hard evidence. The members of the Supreme Court thoroughly assessed the proven facts and risks and found the Dutch government’s inaction to be unlawful. In this way, the Supreme Court offers legal protection to Dutch citizens.

NautaDutilh represented Urgenda before the Supreme Court. We worked throughout in close cooperation with the Dutch law firm Höcker, on a pro bono basis.