On June 24, a court in The Hague ordered the Dutch government to act faster in its duty to protect its citizens against the effects of climate change. This marks the first time the issue legally has been declared a state obligation, regardless of arguments that the solution to the global climate problem does not depend on one country’s efforts alone.
The decision was based on various branches of law, including, most important, human rights. In effect, it makes the Dutch government accountable for greenhouse gas emissions on its own territory, an outcome other countries also may need to heed.
The government, the court said, must ensure that Dutch emissions in 2020 will be at least 25 percent lower than those in 1990 — the amount the Intergovernmental Panel on Climate Change Fifth Assessment Report stated is needed from industrialized countries if the world is to not exceed 2 degrees Celsius warming and avoid the worst consequences of climate change. Dutch political leaders had been planning to cut emissions by up to 17 percent within the next five years.
“Our case lets politicians know that they can’t let climate change happen. They have a duty to act, be it legally or morally,” said Dennis van Berkel, legal counsel to the Urgenda Foundation, which, supported by about 900 co-plaintiffs, initiated the suit.
The Dutch, whose country lies largely below sea level, have reason to worry about climate change. But they live in a country that has resources to adapt.
People in poorer countries, who have contributed least to climate change and are also often least well prepared to respond, are likely to suffer the most. It’s for them that the Dutch victory is critical, said van Berkel.
“The rights of our co-plaintiffs are central, but people outside of the Netherlands will be even harder hit by climate change,” he said. “The ruling will encourage others to appeal to human rights when it comes to climate change threats.”
Which brings up the big question: Is the Dutch court ruling a landmark for the entire globe?
From human rights to policies
In 2008, the International Council on Human Rights Policy in Geneva, Switzerland, wrote in a report about climate change and human rights (PDF): “As a matter of law, the human rights of individuals must be viewed in terms of state obligations.”
But the world long has been grappling with international agreements for such obligations; from the 1997 Kyoto Protocol to repeated Conference of the Parties to the United Nations Framework Convention on Climate Change — COP — meetings, the best efforts have struggled to gain traction, in large part because political actions have not kept pace with promises made.
Aware of that gap, citizens have tried to litigate political leaders into action, but before the Urgenda (a portmanteau of “urgent agenda”) case there were no victories.
In 2005, for example, the Inuit Circumpolar Council filed a petition to the Inter-American Commission on Human Rights, based in Washington, D.C., claiming that global warming caused by greenhouse gas emissions from the United States violated the Inuit people’s right to sustain their traditional ways of life due to destruction of the Arctic environment. The commission dismissed the complaint due to lack of sufficient evidence.
“The obligations are clear,” said Wim Voermans, a professor of constitutional law at Leiden University in the Netherlands. “But when they aren’t kept, can citizens then make a claim that it’s a country’s non-acting that’s endangering them? That’s the challenge. … It’s hard to prove direct causalities in civil litigation.”
In 2008, the village of Kivalina, Alaska, sued several large energy companies, claiming that global warming had diminished sea ice formation, forcing the village to relocate. The case was dismissed based on judicial determination that decisions about permissible levels of greenhouse gas emissions should be made by the executive and legislative branches, not by the courts.
“The real problem is, who has what power?” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University Law School. “Whose job is it to set climate policy? Basically, all judges have said, not me. Before the Urgenda case, no court had really taken on this role.”
Courts haven’t been entirely averse to taking responsibility, though. In 2006–2007, Massachusetts sued the U.S. Environmental Protection Agency, which had refused to regulate carbon dioxide as a pollutant under the federal Clean Air Act of 1970. The agency claimed that any attempt to regulate greenhouse gases might impede potential White House strategies.
The Supreme Court disagreed. While it was an important outcome, “the court did not set policy,” Gerrard explained. “It was just saying, it is EPA’s job.”
Meanwhile, in different countries courts have varying views about how broadly they can act. In environmental policy, courts have at times chosen to intervene on behalf of the public. In 2001, for example, the Supreme Court of India decreed that all Delhi buses had to convert from diesel (PDF) to natural gas, which has had a profound effect on air quality. It was an important ruling, but it didn’t get into climate change.
Amid this impasse between governments avoiding responsibility and courts preferring not to interfere, academics and attorneys worldwide as well as some members of the judiciary have felt a growing unease. A group of them eventually came together to determine whether climate change is an actual issue under existing law, specifically international law, human rights law, national environmental law and, to a lesser extent, tort law. The answer is yes.
“There are longstanding principles of human rights and protection of environment that are threatened by climate change,” Gerrard said. “Our view is that the law should have the ability to address this great threat.”
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