The case for change

The victory of the NGO Urgenda in its claim against the Dutch government shows the value of action at an individual level to combat climate change, writes Adrienne Copithorne

The general consensus among scientists, governments, and policymakers (although there is a diminishing minority who dispute the facts) is that climate change is the single greatest environmental threat of
our time.

The current aim of global climate change policy is to achieve a reduction in greenhouse gas emissions to 25 to 40 per cent of 1990 levels by 2020, on the basis that this will result in a no more than 50 per cent chance of breaching the threshold of a 2°C increase in the average global temperature. At the risk of oversimplifying a very complex model, the 2°C threshold is believed to represent a level beyond which the effects of climate change would be catastrophic. To put this in perspective, a 1.4°C increase in the Earth's temperature from pre-industrial levels can no longer be avoided even if humanity were to immediately stop burning oil, gas, brown coal, and coal.

According to current trends in carbon emissions, the Earth is likely to see an increase of 3.6°C to 5.3°C by 2100. And even if the 2°C limit is met, there will be severe changes to the Earth's ecosystem, such as an average rise in sea levels of 1 metre.There has been a variety of responses among national governments to setting targets and taking the necessary steps to achieve them.
From an individual perspective, action taken to reduce carbon emissions, such as reducing car and air travel, not eating meat, and insulating one's home, is advisable, but this needs collective and equitable global action. It may well be ineffective if energy companies continue to rely on fossil fuels.

Urgenda case

In 2015, a Dutch NGO, Urgenda, which campaigns for action on climate change, achieved an extraordinary victory in the District Court in The Hague. It convinced a panel of judges that the Dutch government was in breach of its duty of care in tort to the Dutch people by not taking adequate steps to reduce carbon emissions. The Dutch government had adopted a target of achieving a 16 per cent reduction in emissions by 2020 when compared to the 1990 baseline, far short of the global consensus of a 25 to 40 per cent reduction.

Urgenda also argued that the Dutch government was in breach of its duty of care by subsidising the fossil fuel industry by €5bn per annum, while the renewable energy industry only received €1.5bn. The breach was exacerbated by the fact that economically feasible alternatives in the form of energy efficiency measures and renewable energy projects are widely available. Put in context, according to rankings published by the World Bank in 2009, the Netherlands is the fifth greatest emitter of carbon emissions in the world and by a wide margin has the most emissions on a per capita basis in Europe.Urgenda's letter before action, sent in 2012, argued that the Dutch government was failing in its duties to the Dutch people for the reasons given, but also because postponing taking steps to reduce carbon emissions would result in more costly measures having to be taken later on. It also accused the Dutch government of failing to properly inform the Dutch people of the risks posed by climate change and the failure to sufficiently reduce carbon emissions.

When the Dutch government failed to give the necessary assurances, Urgenda issued a claim on behalf of over 800 Dutch citizens. Following a hearing in 2015, the court granted an order that the Dutch government must take steps to ensure a minimum target to reduce emissions by 25 per cent by 2020. Urgenda had not claimed damages because the Dutch Civil Code allows tort claims to be brought without proof of existing loss as long as damages are not sought. The claimants argued instead that there was a reasonable threat of loss in the future and the principle of prevention required action at this time.

State's duty of care

Although article 21 of the Dutch Constitution requires the state to 'protect and improve' the environment, the court did not find that was sufficient to establish a duty of care. Nor were articles 2 and 8 of the European Convention on Human Rights or various EU treaty articles, although all of these instruments were relevant to the issues raised in the claim.

The court instead found: 'Due to the severity of the consequences of climate change and the great risk of hazardous climate change occurring - without mitigating measures - the court concludes that the State has a duty of care to take mitigation measures.' In other words, the risk is so great, someone must do something.

The court also found that the Dutch state was responsible for effectively controlling emissions levels and that the economic cost of complying with the order would not be unacceptably high. The court accepted the argument that the risk of future losses was sufficiently concrete and significant that the Dutch government, under its duty of care to Dutch citizens and future generations, must make a greater commitment to reducing that risk than its current position. The Dutch government argued that the court would be overstepping its legal jurisdiction into the realm of policy and that this would offend the principle of the separation of powers. The court disagreed, as Urgenda was seeking legal protection that fell within its remit, even if the order might have political consequences.

The court also commented: 'It is worthwhile noting that a judge, although not elected and therefore has no democratic legitimacy, has democratic legitimacy in another - but vital - respect. His authority and ensuing "power" are based on democratically established legislation, whether national or international, which has assigned him the task of settling legal disputes. This task also extends to cases in which citizens, individually or collectively, have turned against government authorities. The task of providing legal protection from government authorities, such as the State, pre-eminently belongs to the domain of a judge. This task is also enshrined in legislation.'

The Dutch government has appealed the decision to the Court of Appeal, rather than directly to the Supreme Court as advocated by Urgenda. This was to preserve the opportunity to challenge the facts on which the decision was made, despite accepting these same facts in its negotiations over climate change on the international stage.

Encouragingly, however, the Dutch government has announced it will take steps to comply with the order even while the appeal is outstanding and, whatever the result, it is likely that either party will go to the Supreme Court.

UK position

Could a similar claim be brought in the UK? It seems unlikely that an order could be sought in the same terms since the UK achieved reductions in carbon emissions of 35 per cent below 1990 levels by 2014. The Committee on Climate Change reports that a further fall of 3 per cent for 2015 is expected.

The UK has outperformed its second and third carbon budgets; however, it is not on track to achieve its fourth carbon budget for the period from 2023 to 2027. It is interesting to speculate whether a claim could be brought on associated issues such as subsidies to the fossil fuel industry or the need to inform and guide the public on the risk facing the country in the coming decades.

The UK also does not have the relatively clear-cut framework of a civil code to guide tort claims. It is not clear whether a domestic court would accept a claim where the alleged losses are so difficult to calculate or prove. The question of costs also arises - the Urgenda judgment does not mention any provision for protection against adverse costs liability on the part of the claimants.

However, on the basis that this was an exceptionally complicated and important case, the court awarded Urgenda the sum of €13,521.82 in respect of its costs. If this is a typical level of adverse costs liability in Dutch litigation, it may be that costs protection was not at issue. Contrast this with the UK, where costs are prohibiting environmental claims (see Austin v Miller Argent [2015] 2 All ER 524).

It was a brave decision on the part of Urgenda to launch the proceedings given the complexity and significance of the issues it had to seek to persuade the court to accept. It also shows that action at the level of individuals can take on what otherwise seems only amenable to national and international negotiations. When it comes to something as significant as climate change, more debate and, importantly, more action can only be welcome.

Adrienne Copithorne is a partner at Richard Buxton @RBEnviroLaw www.richardbuxton.co.uk