Politics, courts and the law: the Urgenda-case

On December 20th of last year, the Dutch Supreme Court ruled in the case of Urgenda versus de Staat der Nederlanden, confirming the finding of the Court of Appeal that the State violates articles 2 and 8 ECHR if it does not reduce greenhouse gas emissions by 25% in 2020. Dr. Ingrid Leijten on Strasbourg Observers highlights what is interesting – as well as convincing – about the way the Supreme Court addresses the issue as a matter of human rights:

'combatting climate change is a fight against the clock and does not leave time for yearlong dialogues between courts and other branches on the goals that need to be achieved as a matter of right. It may thus be hoped that Urgenda instead triggers the realization that States should proactively protect human rights by taking the necessary measures and without hiding behind political disagreement or counterweighing interests.'

From the Dutch Supreme Court's judgment (unofficial translation available in English):

'(b) Political domain
This brings the Supreme Court to the assessment of the State's more general argument that it is not for the courts to make the political considerations necessary for a decision on the reduction of greenhouse gas emissions.
As considered above, in the Dutch constitutional system of decision-making on the reduction of greenhouse gas emissions is a power of the government and parliament. They have a large degree of discretion to make the political considerations that are necessary in this regard. It is up to the courts to decide whether, in availing themselves of this discretion, the government and parliament have remained within the limits of the law by which they are bound.
The limits referred to in 8.3.2 above include those for the State arising from the ECHR. As considered in 5.6.1 above, the Netherlands is bound by the ECHR and the Dutch courts are obliged under Articles 93 and 94 of the Dutch Constitution to apply its provisions in accordance with the interpretation of the ECtHR. The protection of human rights it provides is an essential component of a democratic state under the rule of law. This case involves an exceptional situation. After all, there is the threat of dangerous climate change and it is clear that measures are urgently needed, as the District Court and Court of Appeal have established and the State acknowledges as well (see 4.2-4.8 above). The State is obliged to do ‘its part’ in this context (see 5.7.1-5.7.9 above). Towards the residents of the Netherlands, whose interests Urgenda is defending in this case, that duty follows from Articles 2 and 8 ECHR, on the basis of which the State is obliged to protect the right to life and the right to private and family life of its residents (see 5.1-5.6.4 and 5.8-5.9.2 above).
The fact that Annex I countries, including the Netherlands, will need to reduce their emissions by at least 25% by 2020 follows from the view generally held in climate science and in the international community, which view has been established by the District Court and the Court of Appeal (see 7.2.1-7.3.6 above). The policy that the State pursues since 2011 and intends to pursue in the future (see 7.4.2 above), whereby measures are postponed for a prolonged period of time, is clearly not in accordance with this, as the Court of Appeal has established.
At least the State has failed to make it clear that its policy is in fact in accordance with the above. In this case, therefore, the Court of Appeal was allowed to rule that the State is in any case obliged to achieve the aforementioned reduction of at least 25% by 2020.'