Wednesday

30th Sep 2020

Feature

Dutch case opens new era for climate-change litigation

  • Legal action on climate change - against both governments and corporations - is set to grow considerably in the next few years (Photo: Gwenael Piaser)

Over the past few years, an increasing number of citizens and NGOs have started taking legal action to hold governments and corporations accountable for failing to address the climate crisis.

Last year, 2019, a Berlin court ruled on the first-ever climate litigation case against the German government for failing to meet its own 2020 climate target.

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Even though the case was dismissed, the court ruled that people's fundamental rights can be violated by the consequences of climate change.

Similar cases have been brought to Irish or Italian courts, and even to the European Court of Justice.

Yet, evidence on the actual impacts of climate-change litigation is still rather inconclusive.

But a recent ruling of the Supreme Court of the Netherlands has set a precedent in climate legal action, as it established that the Dutch government has the legal duty to prevent dangerous climate change on the basis of fundamental rights.

In 2013, the Dutch environmental foundation Urgenda, on behalf of around 900 citizens, sued the state for the government's failure to take responsibility for the Netherlands' contribution to the climate crisis.

The Urgenda case

In this landmark decision, the court ruled that current Dutch policies were inadequate, forcing the Dutch government to reduce its greenhouse gas emissions by at least 25 percent (compared to the 1990 levels) by the end of 2020.

Although in global terms, the Dutch are not major polluters, per capita the Netherlands has the fourth-highest CO2 emissions in the EU, according to the Organisation for Economic Co-operation and Development (OECD) - after Luxembourg, Estonia and the Czech Republic.

And the small but densely-populated country is also home to oil giant Shell and has abundant natural gas reserves.

But the court ruling establishes that even minor contributors to climate change must take responsibility.

The ruling was based specifically on the right to life and well-being under the European Convention on Human Rights (ECHR) - articles 2 and 8.

Greenpeace called the decision "an immense victory for climate justice"

Additionally, the ruling marks the first successful climate change action founded on private (tort) law - as well as the first time that a court has determined the appropriate emissions-reduction target for a developed state, according to Roger Cox, who was the lead lawyer on the case.

By coincidence, the decision on the Urgenda case came a few days after the European Commission presented the new Green Deal to achieve climate neutrality by 2050.

But, it also came less than a month after the UN Environment Programme confirmed that collective ambition must increase more than 500 percent over current levels to meet the goals of the Paris Agreement.

Governments vs Corporations

Legal action related to climate change is set to grow considerably in the next few years as a tool to strengthen climate action.

According to a recent report, the majority of defendants until now have been governments. But lawsuits are increasingly targeting the biggest emitters and polluting companies.

In the Netherlands, the Urgenda case also encouraged other campaigners to take legal action against polluting cooperations.

Last April, a group of social and environmental justice groups led by the NGO Friends of the Earth Netherlands began the process of suing Shell "to legally compel the company to cease its destruction of the climate".

According to a campaigner from Friends of the Earth International, Sara Shaw, leaked internal company documents from the 1990s already predicted that environmental organisations would start suing Shell for causing climate change.

The NGO foresees that if the court case is successful, Shell might be forced to reduce its CO2 emissions by 45 percent by 2030, compared to 2010 levels.

However, according to Cox, "climate cases brought against national governments appear to have better chances of success than lawsuits brought against the fossil fuel sector [because] a scientific basis has been established and governments have acknowledged the need to achieve a certain amount of reduction within a certain period of time".

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