Urgenda v. The Netherlands: A new climate change constitutionalism?
Suryapratim Roy1
1. Introduction On 24 June 2015, the Rechtbank Den Haag agreed with a group of private petitioners2 represented by the Urgenda Foundation, a non-governmental organisation, that the government should take more action to combat climate change3 [hereinafter: Urgenda]. The Court substantially granted the reliefs claimed by the petitioners: it passed a Reduction Order requiring the State to reduce its greenhouse gas emissions by at least 25% by the end of 2020.4 However, the Court resisted granting
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declaratory relief regarding the Netherlands’ role in climate change, specifically that the current government would be acting illegally if it failed to bring into effect a reduction of at least 25% by 2020 and 40% by 2030.5 The Ministry for Infrastructure and the Environment has decided to appeal against this decision, noting that it would contest the understanding of the ‘duty of care’ by the District Court as well as the way the Court has appreciated international law. Nevertheless, the Ministry has stated that it seeks to commence implementation of the Reduction Order in the interim.6
Scholars are not optimistic that Urgenda will survive the appeal, arguing primarily that the Court did not respect the constitutional principle of separation of powers.7 Further, given climate change is a domain over which Member States and the European Union (EU) have shared competence, the issue should perhaps be referred to the Court of Justice (CJEU). I do not necessarily disagree with such assessments, but offer a different perspective of looking at the judgment. I wish to suggest that irrespective of whether it survives an appeal, Urgenda has made its mark in the life of global climate litigation. This is not only for the reasons that have been already picked up: the first case where private parties have had a ‘regulation-enforcing’ role, a successful tort law claim requiring the State to take more action. More important is the development of a climate change constitutionalism that consists of the following properties: (i) a constitutional duty of care that needs to be exercised by the State to protect those who fall under such a constitution from the hazards of climate change; (ii) the scientific authority of international epistemic bodies, primarily the Intergovernmental Panel on Climate Change, (iii) the normative force of transnational climate jurisprudence (including the ‘soft’ pervasiveness of ‘diagonal’ precautionary and human rights jurisprudence) without the endorsement of vertical legal authority. It may appear that phrases such as ‘scientific authority’ and ‘diagonal jurisprudence’ have no real legal meaning. I would like to suggest the reason why such phrases may not seem legal is because they cannot easily be attributed to legislative output and delegated executive action. Urgenda, however, attributes legal force to them by bringing them under the Dutch constitution and jurisprudence that interprets provisions of the Burgerlijk Wetboek (BW) to support the constitutional duty of care and the demands of the global nature of climate change. The reason, therefore, behind the ‘activism’ of the judiciary is its position within the trias polit ica as the guardian and interpreter of the constitution. In its role as the interpreter of the constitution, the Court has to combat political contingencies that may do violence to the constitution, and concentrate on the primary purpose of the constitution: to look after the individual. In addition, the way the Court reasons in Urgenda – using international jurisprudence without endorsing it to create a new jurisprudence – establishes the Court firmly as an actor in global climate governance. It may appear from the above that I suggest that Urgenda is unproblematic and free of f laws. That is not so. While the idea of a ‘duty of care’ climate constitutionalism may be theoretically appealing, it is still bound by practical limits. The first practical consideration is territorial limitations on the pursuit of climate policy. There is no global climate constitution, and therefore other competing national policy concerns need to be accommodated. Such concerns could be resource constraints in the Dutch treasury, or epistemic limits, such as how best to allocate limited resources to different policy mechanisms to effectively combat climate change. The second practical consideration is an epistemic one: even if there is desire to protect the individual from the hazards of climate policy, the proper way to do that is one of the primary problems of our time. Given the global nature of the problem, this involves both the distribution of responsibility, as well as technologies of satisfying such responsibilities. These technologies – such as the EU Emissions Trading System (EU ETS) – take a life of their own, and serve as platforms for engagement of different climate stakeholders. Such engagement, in turn, shapes the allocation and fulfilment of responsibilities. For instance, should there not have been a f lexible mechanism of meeting climate targets, it is debatable whether the EU would have been a frontrunner in climate action. These complexities are arguably beyond the capacity of judges to handle, for which assistance in the form of expertise may be sought. To clarify, charting the interaction of different complex policies cannot be posed as a reason to wish away the duty of care to protect citizens from climatic harm, but an effective route to bring these multiple concerns into conversation needs to be identified. The above is brief ly what I seek to demonstrate in this article, and will endeavor to f lesh them out in the rest of the paper. In Section 2 I provide an account of why Urgenda was decided the way it was, concentrating on the social and legal context. I also point out the primary contextual element that it disregarded – the operation of EU governance on climate change – and indicate why that may have been the case. In Section 3, I consider aspects of Urgenda that may be instructive for future climate action, concentrating on the way the precautionary principle was used, and how Urgenda contributes to the development of a new climate constitutionalism.
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