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Urgenda wins the case for better Dutch climate policies. Photo taken from Urgenda / Chantal Bekker.

Urgenda v. the Netherlands: Implications of a state caught in climate change

THE INCREASING unpredictability of the weather, with long bouts of dry rainy seasons and sudden pouring of heavy rains, has highlighted the reality that States were remiss in treating climate change as a non-priority and low-risk issue. Accordingly, States should actively pursue and implement effective climate change prevention measures, as was held in the recent Dutch case, the Urgenda Foundation v. the State of Netherlands (C/09/456689/ HA ZA 13-1396, June 24, 2015).

The Case of Urgenda v. The Netherlands

In the case of Urgenda Foundation v. the State of the Netherlands (Ministry of Infrastructure and the Environment), the Hague District Court ruled against the Dutch Government, finding that it has been negligent in its actions to prevent climate change.

The Urgenda Foundation (Urgenda) is a Dutch-based organization comprised of various members of Dutch society and serves as a platform for its citizens to take action for the prevention of climate change. Since 2012, the foundation has requested the State of Netherlands to commit and undertake a reduction of CO2 emissions within its territory. However, their dissatisfactory responses prompted Urgenda, acting on its own behalf as well as a representative of 886 other individual petitioners, filed a lawsuit in order to compel the Dutch government to increase the Dutch reduction target of greenhouse gases for the year 2020 to 40%, or at least 25%, less than the 1990 greenhouse gas emissions, which serves as the point of comparison or baseline of the reduction target. To support its claim, Urgenda stated that reputable scientific organizations, such as the Intergovernmental Panel on Climate Change, the Netherlands Environmental Assessment Agency, and the United Nations Environment Program, have found that climate change poses dangerous and far-reaching consequences. They also pointed out that greenhouse gas emission per capita in the Netherlands is among the highest in the world and the state is acting unlawfully in its failure to increase the reduction target to at least 25%.

In its decision, the Hague District Court ruled that the Dutch Government has acted unlawfully in failing to increase the reduction target, finding that the Dutch Government was negligent in its duty of care to prevent the dire consequences of climate change under Article 21 of the Dutch Constitution, which states that the protection and improvement of the environment is a concern of the government. Under Dutch law, this provision involves the discretionary power of the government; hence, on its face, Urgenda cannot base its claim on it. However, the District Court justified its finding of negligence in the fact that the exercise of the government’s discretionary power must not be fall below the standard prescribed.

At the outset, the District Court recognized that Urgenda is not the proper party to allege violations of Dutch international obligations to prevent climate change, such as those founder under the United Nations Framework Convention on Climate Change and the Treaty on the Functioning of the European Union, stating that these are obligations generally due to another State. The District Court also found that Urgenda cannot justify its claim on the European Convention on Human Rights since Urgenda, as a juridical person, cannot not be a victim of the violation of human rights under Article 34 of the said Convention. Despite the aforementioned issues with Urgenda’s petition, the Court also recognized that the said Conventions may provide necessary minimum standards of protection.

Accordingly, in reference to these international obligations, the Hague District Court found that that the 25% threshold is the bare minimum standard of the reduction rate of greenhouse gas emissions. Hence, although Article 21 of the Dutch Constitution involves governmental discretionary power, the Dutch Court held the Dutch government negligent for its failure to adopt the bare minimum of 25% threshold reduction rate.

Implications of the Decision

In its decision, the Hague District Court had the insurmountable task of balancing governmental discretion vis-à-vis the protection of the environment against climate change. The decision is not new since the Hague District Court still upheld the basic rules in International Law as to treaty interpretation and application, as illustrated by its finding that Urgenda cannot invoke Dutch international obligations for its case. Rather, it merely utilized these international obligations as a means of determining whether or not the Dutch government has failed to comply with Article 21 of its Constitution. In the end, the District Court still relied on its internal laws in finding the Dutch Government accountable for its failure to prescribe the bare minimum of greenhouse gas reduction rate. Accordingly, the decision’s implications to other States is not as far-reaching as it seems given that a similar finding in other States’ courts would largely depend on their internal laws and jurisprudence regarding the duty of the government to protect the environment. At the same time, the Urgenda decision is significant since the Hague District Court utilized international standards in determining the bare minimum rate of reduction of greenhouse gases to be imposed. To date, according to Urgenda Foundation, the Dutch government has filed an appeal to the decision of the Hague District Court.

According to Dean Sedfrey Candelaria of the Ateneo Law School, in the Philippines, the world-renowned case of Oposa v. Factoran (G.R. No. 101083, July 30,1993) recognized the principle of intergenerational responsibility to protect the environment in relation to the right of present and future generations to a “balanced and healthful ecology,” as enshrined in Section 16 of Article II of the 1987 Philippine Constitution. In a more recent case, the Resident Marine Mammals v. Secretary Angelo Reyes (G.R. No. 180771, April 21,2015), the Supreme Court recognized that petitioners may represent the interest of future generations to protect the various sea creatures found in Taňon Strait, a protected area. In both cases, the Court recognized the standing of Filipino citizens to represent future generations for the protection of the environment but still relied on other laws in ruling against respondents.

Comparing these with the Dutch case, Urgenda is evidently a step forward from the Oposa and Resident Marine Mammals cases since the Court in the Urgenda case indirectly incorporated international standards set by various international instruments into its internal laws whereas the two Philippine cases still relied on its internal laws in isolation to rule on whether the action or inaction of a particular government agency violated the right of Filipino citizens to a “balanced and healthful ecology,” as enshrined in Section 16 of Article II of the 1987 Constitution. P

Disclaimer: The views and opinions of the authors do not represent the opinion of the Ateneo Law School nor The Palladium regarding the issue.

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