The use of tort law in climate litigation: The Urgenda case.

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Urgenda Foundation v. The State of the Netherlands, C/09/456689/HA ZA 13-1396 (24 June 2015).

In order to effectively tackle the issue of climate change, more stringent climate policies are necessary. While States have sometimes been reluctant to ratify more cogent and effective measures to tackle the issue, in the past years there has been a surge in lawsuits both from public authorities and private entities demanding more stringent regulations.

The Urgenda case leads the way in climate litigation since, 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.

Thus, on 24 June 2015 the civil section of the Dutch court of the Hague-Netherlands mandated that the Dutch Government must adjust its environmental policies to reduce the collective greenhouse emissions of the Netherlands by 25% compared to 1990 levels by the end of 2020 – in accord with the Oslo Principles-.

The case was brought by the Urgenda foundation –a contraction of Urgent and Agenda- a citizen’s platform that has as main focus the transition to a more sustainable society and achieves its objective by taking initiatives to prevent climate change. To initiate the case the Urgenda foundation received authorization by 886 individuals to start the case on their behalf.

The case stressed, that the Dutch Government was in breaching of duties which are fundamental to Dutch society:

      1. A duty to protect -Netherland failed to fulfil its duty to protect and improve the Country’s environment and its liveability pursuant article 21 of the Dutch Constitution;
      2. A duty of care– Netherlands owed Urgenda and the rest of Dutch society a duty of care, the breach of which violates article 6:162 of the Dutch Civil Code;
      3. A duty to guarantee the right to life and respect of private and family life-respectively Art. 2 and Art. 8 of the European convention on Human Rights which imposes a positive duty on the Dutch Government to take measures to guarantee these rights which are threatened by climate change.

Furthermore, the case raised concerns circa the pace at which the Dutch Government wants to reduce its GHGs emissions up to 2020 and argued that the Netherlands was acting unlawfully by pursuing a reduction target for 2020 that is lower than the range of 25-40% endorsed by the Annex Parties –of which the Netherlands is a signatory- in the Cancun Agreements as this is necessary for avoiding the most negative repercussions of climate change.

The Urgenda case represent a useful precedent for future climate change litigation since, it is the first time that the use of tort law has been used successfully against a public body.

Legal action against public bodies has usually been achieved through judicial review -judicial scrutiny of the legality of administrative decision. The role of the court in such cases is to interpret the relevant legislation to ensure that it is implemented within the statutorily conferred powers-. A direct effect of it has been the enforcement in environmental agencies and local authorities to include GHG accounting, emission-reduction and adaptation measures in planning-permit applications and environmental impact assessment procedures.

On the other hand, climate litigation against private corporations has usually relied on theories of tort law -negligence and public nuisance-. Aside from Urgenda, which represent the exception, all other climate litigation cases based on tort law have been dismissed on the ground that they could raise political questions. Furthermore, in most jurisdictions and legal traditions the difficulties of proving causation and standing have being hard to overcome since it is challenging to establish a causal link between acts of the state with damage. In the Urgenda case, the court was able to prove causation and successfully tackle the issue of standing because, in this case, the Dutch Civil Code provided for it – art. 305a Dutch Civil Code-.

The court justified its ruling on two grounds

      1. Climate change can pose a serious danger to societies and this must be averted -the IPCC and the UN climate body scientific papers report this unanimously-;
      2. Redefined the notion of duty of the State’s duty of care with respect to the unlawful danger of climate change -the court invoked the Grand European Principles of Environmental and Health Protection, the precautionary principle and the European convention on Human Rights for a new definition of duty of care-.

What makes the Urgenda case a useful precedent for future climate litigations grounded in tort law?

      • It is the first time that a court orders GHG’s emission limitations on sources other than statutory mandates and extended an existing tort law doctrine of social responsibility in order to avoid unacceptable danger creation -the court found climate change to be an unacceptable and unlawful danger and ordered the government, based on its duty of care, to take action to protect against it;
      • It successfully overcame the issue of standing and causation by declaring that legal causation and factual causation are one and the same. It also omitted the ‘but for’ test since, in case of cumulative environmental harm, leads to un-scientific results;
      • It successfully argued for the possibility of the judiciary to play a bigger role in climate change regulations framework -in the court documents the Urgenda Foundation implied that governments are locked into a prisoner’s dilemma whereby they are unable to solve the climate crisis because driven by short term economic interests thus, the judiciary should act as a mean of last resort-;
      • It successfully overcame the issue of political association -while the court lacked democratic legitimacy to decide on an issue such as climate change which is vested in strong political connotations it argued that, based on the system of check and balances it is part of the rule of law for state’s actions to be scrutinised by the judiciary.

To conclude, the Urgenda case expanded the doctrine in three ways:

      1. It rules that the doctrine applies to States as well as private parties;
      2. It holds that the doctrine applies to omissions to address dangers created by all activities that are being conducted within Dutch territory on the rationale that the liable person has control over other persons;
      3. It expands the definition of the precautionary principle by applying its definition also to uncertain, long term, generalized, multi-casual hazard;
      4. It declares that the ‘drop in the ocean rule’ has no holding -even if the amount of Dutch emission is much smaller compared to other countries, it is a fact that even minor anthropogenic emissions contribute to climate change therefore this constitutes unacceptable danger and a breach of the duty of care’s principle-.

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