—James Fowkes, University of Münster Faculty of Law
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]
The headline is that the Dutch government’s appeal was rejected. And some standard journalistic copy applies. This is a praiseworthy effort by a civil society organization to deal with a pressing problem. The judgment makes a number of findings that will be of use to other litigants elsewhere, especially in the context of EU emissions mechanisms and the European Convention on Human Rights. And it took judicial courage, and an admirable sense of global citizenship, for the Hague Appeal Court to uphold the lower court’s decision.
But that said – and that part should be said – the finer print of this judgment also merits critical comment. Though it may seem an odd thing to say about a bold decision in a ground-breaking litigation, the judgment reflects quite a conservative view of the judicial role – and as such, may not have done enough to underpin the boldness of its order.
Let me hasten to explain.
The Dutch government has chiefly resisted an order mandating a more stringent, unilateral emissions reduction target: that it will remove their diplomatic leverage to withhold more aggressive Dutch reductions until others do the same; and that to the extent that EU countries have a common emissions budget, other EU members states will simply ‘use up’ any reduction unilaterally achieved by the Dutch (the so-called ‘waterbed’ effect).
Neither of these is a silly argument – not least because Dutch emissions are very high in global per capita terms but tiny in absolute ones. From the Dutch point of view, a meaningful response to climate change depends on getting other countries to follow suit.
In rejecting these concerns, and the associated contentions that the courts should leave such matters to the government, the Urgenda decision offers two kinds of argument.
First, the court asserts its power, and duty, to enforce rights. If every government could simply say that their domestic courts couldn’t order more significant unilateral action until other states did the same, no domestic court would be able to issue a domestic remedy. The court sees this as an absurd result, defeating the domestic judicial duty to enforce rights.
In formalist terms, this is quite true. But substantively, it ducks the question that matters most: is an order by a domestic court to require unilaterally increased emissions reductions by its government an appropriate or effective way to respond to a necessarily transnational issue like climate change? The court is perfectly right that requiring broader co-ordination would limit the ability of domestic courts to act on their own. But that is no answer to the question of whether, absent broader co-ordination, domestic courts should act in this way.
Second, while the court does take up issues relevant to this big question elsewhere in the judgement, it tends to resolve them on the burden of proof: concerns are dismissed because the government has not adequately substantiated them.
Such an approach to the burden of proof is, of course, entirely conventional in civil litigation. And where this is a matter of smoking out contradictions and other fallacies in the government’s case, so be it. But it more often seems less like an exercise in disproving the government’s argument and more like an exercise in finding that the question isn’t proven either way and then finding against the government on the basis of the burden of proof.
What this means – and here is the punchline – is that the court is willing to order a greater unilateral reduction of emissions by the Dutch state, over the wishes of a government committed to stringent emission reductions, while often taking little independent responsibility itself for asking whether that is a good thing for the Dutch response to climate change. That is what deciding the issue on the basis of the burden of proof amounts to.
This, then, is the sense in which the Urgenda appeal court can be said to have a conservative view of the separation of powers. The Court’s justifications for pushing against the separation of powers and limiting the margin of appreciation are all about the extraordinary nature of the climate change threat. This extraordinariness extends to bold rulings but not, apparently, to the traditional approaches to litigation.
A comparative look abroad will show that, in the context of an inadequate government response to legal challenges on complex, uncertain, urgent issues, it is possible for courts to do more. Consider India, or Colombia, or the United States (though perhaps less so recently, at least at the federal level). Here, one can find courts themselves initiating more investigation of insufficiently explored issues, whether by drafting in experts, or establishing commissions of enquiry, or by requiring the government to investigate more and report back. The judges thus take a measure of responsibility for the orders they make beyond merely adjudicating whether the government has or has not discharged an onus.
The patterns of the most expansionist courts in the world are undoubtedly something a stretch as a source of expectations or advice for a litigation in the Netherlands. And the point of Urgenda’s intervention, in the context of a government that concedes the science and believes in serious reductions, is also heavily dialogic – less about the court making final decisions and more about prodding final decisions to be made by the government.
But in taking the measure of Urgenda, as an early example of what will surely be a major trend going forward, we should be aware of the limits of its headline-grabbing approach.
If other governments join in seeking more stringent reductions, or if other courts in Europe and beyond decide to compel their governments to do this, there will be little reason to look back and worry about Urgenda. But if that does not happen, if Dutch leverage has been impaired for the sake of a puff in the global emissions cloud and a sense of at least doing something, we might look back and wonder. And what we should wonder, I suggest, is about a court that took no independent responsibility for asking whether, if the government lost, the effort to reduce global emissions would win.
The Dutch government is again appealing, perhaps not least for this reason. It, presumably, would prefer less intervention from the courts. By contrast, my argument here is either for less, or for more. If the aim is merely to prod, weaker form review than this might well suffice. If the aim is to order, the traditional onuses of civil litigation might not.
Suggested citation: James Fowkes, Rare, or Under-Cooked? The Appeal Ruling in the Urgenda Climate Change Case, Int’l J. Const. L. Blog, Dec. 19, 2018, at: http://www.iconnectblog.com/2018/12/rare-or-under-cooked-the-appeal-ruling-in-the-urgenda-climate-change-case/
 James Fowkes, ‘A Change in the Climate: Partly cloudy with an increasing chance of litigation’ Int’l J. Const. L. Blog, May 30, 2018, at: http://www.iconnectblog.com/2018/05/a-change-in-the-climate-partly-cloudy-with-increasing-litigation-i-connect-column/
 Urgenda, para 64.
 Urgenda, esp. paras 54-57
 The new coalition that came to power in 2017, since the original Urgenda judgement in the court of first instance, is committed to stronger emission reductions than its predecessor. The possibility of a deferral to this political development, similar to the New Zealand Thomson case, therefore remains a possibility: see Thomson v. Minister for Climate Change Issues  NZHC 733; available at http://www.nzlii.org/cgi-bin/download.cgi/cgi-bin/download.cgi/download/nz/cases/NZHC/2017/733.pdf
 Urgenda, esp. paras 67-69, 74
 The government announced its intention to appeal on 16 November 2018.
 See e.g. Rosalind Dixon, ‘The Core Case for Weak-Form Judicial Review’ 38 Cardozo Law Review 2193 (2017). Mark Tushnet’s argument against assuming that all review has to be strong, and for the value of weak form review in socio-economic rights cases, may also be apposite: see Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2008).