Litigating on Climate Change: Dutch Democracy on Trial

Isabel Perucho – Philippines

In a groundbreaking ruling, the Dutch Urgenda Foundation and 886 Dutch citizens won a climate lawsuit against their government in June earlier this year. They did so on the basis of a legally non-binding international agreement. This degree of interconnection between domestic law and non-legally binding international agreements is unprecedented. Now, similar legal proceedings have begun in other countries, including Belgium and Norway. If this precedent becomes a trend, the agreements and protocols that seem distant from our everyday lives might start to affect each of us more directly.

The court’s ruling did not consider the opinions of the vast majority of Dutch citizens, while it deals with a use of resources that directly affects them. The verdict was primarily based on the legally non-binding Cancun Agreements, which the government was judged to not have upheld. The court found the state was not protecting its citizens from the effects of climate change. It now has to implement even more comprehensive policy measures to ensure that there is a 25% decrease in carbon emissions (based on levels from 1990) by 2020. This will require the government to lessen their dedication to other policy goals because their financial freedom is limited by the European Union’s government budget regulations. It is of note that the citizens of the Netherlands did not get the chance to politically engage with that decision, and considering the extensive climate policy that was already in place, this may render the lawsuit illegitimate.

The Netherlands is clearly committed to all of its legally binding climate-related treaties, including all European Union-wide goals. It is also committed to the EU’s vision for post-2020 climate agreements. And yet, in the lawsuit, the Dutch government was held responsible for not strictly adhering to the Cancun Agreements, a non-legally binding commitment. The Dutch administration was accused of contributing to an increase in temperature higher than the Agreements’ cut-off value of 2 degrees Celsius. This use of the Cancun Agreements as evidence in a domestic lawsuit is unprecedented. These agreements have no metric by which we can measure whether the climate policy of any country reaches the set goals. They were left deliberately vague because the goals set by the Cancun Agreements are universal, not country-specific.

Nevertheless, Urgenda argued that supporting the Cancun Agreements necessitated the Dutch government’s compliance with its terms. Due to the non-binding nature of the agreement, there was no course of action that participating countries had agreed upon. This is the clear conflict when applying international agreements that were not meant to be legally binding to domestic law, and it makes the loss of the Dutch government to the Urgenda foundation harder to justify.

The Netherlands’ currently has a relatively strong commitment level to climate change-oriented policy, and this is supported by its citizens. Yet the government budget has been strained by the financial crisis and stricter European Union financial regulations. The necessity of complying with European Union financial regulations without slipping back into a recession has forced the government to make some heavily contested decisions. Examples include budget cuts in healthcare and higher education funding. Through these budget cuts, the government has risked the deterioration of the quality of its health care and the future competitiveness of its economy. If, instead, government finances had been in abundance, then a climate lawsuit might be perceived by the public in a different light. However, since the issue of climate change does not pose an immediate danger (at least cognitively) to citizens and the challenges have not evolved dramatically in the last few years, courts should not be impeding on governmental climate change policy in this way.

It is almost impossible to predict which combination of climate policies truly lead to sustainability. As a consequence, this verdict becomes difficult to justify. Both Urgenda and the EU want to combat the dangers of climate change, but each institution’s research leads to different policy recommendations over different time scales. This makes sudden changes to policy through a lawsuit less legitimate because the exact policy measures required to stop dangerous climate change are not clear. At the same time, these additional anti-climate change measures restrict policies and funding that would definitely make a difference elsewhere (e.g., healthcare and education).

In the case of this lawsuit, the democratic process was unrightfully bypassed. The extra cuts in emissions has to be implemented at the cost of other policy goals, even though citizens might not agree. If the breach of the rights of its own citizens was indeed as severe as it was claimed by the Urgenda Foundation, then such a circumvention would make sense. Yet it will now likely force the government to cut its budget elsewhere, and both options seem at least equally inequitable for the Dutch citizenry.

The fact that this judicial approach is now hailed by Urgenda as the way forward when it comes to climate change makes the case important. Legal proceedings against governments over climate change are not unique to the Netherlands but this case against the Dutch government broke many conventions by applying legally non-binding international agreements to domestic law, and by dodging the democratic process. But pursuing climate change in this top-down manner has led to risks that are left undiscussed. Namely, that while part of climate change action has to be implemented on national and international levels, it also requires individuals to change their habits on a massive scale. Considering the importance of all the individuals that are bypassed by acting through the judiciary, one has to wonder whether the costs that the lawsuit have incurred, both financially and politically , outweigh the benefits. This consideration is an especially important once, considering the possible outcomes of the Paris Climate Conference coming up in December.