–Julio Ponce, Professor of Administrative Law, University of Barcelona. Email: jponce@ub.edu
On December 20, 2019, the Dutch Supreme Court issued a historic ruling, putting an end to a series of lawsuits initiated in 2015 that have pitted Urgenda, a foundation with 886 Dutch people as plaintiffs, against the Dutch State.
In this judgment, the high court declared the existence of dangerous climate change to be a proven fact, affirmed the legal obligation of the Dutch State to protect the rights of its citizens with the due care and diligence of good government and good administration, and established the absence of absolute and unimpeded freedom of choice for the law in the exercise of existing discretion in climate change decision-making.
As a result, it condemned the Dutch State to take the measures it considers appropriate to reduce the country’s greenhouse gas emissions by 20% from 2020. First, it should be noted, as we move forward, that the Dutch Supreme Court’s decision of 2019 is not the first Dutch court decision on the issue. The judgment is in fact an appeal in cassation against the 2018 judgment of the Hague Court of Appeal, which in turn heard the appeal against the 2015 judgment of a district court in The Hague.
This last decision, confirmed by the decision of the Court of Appeal, has in turn been confirmed by the rejection of the appeal in cassation by the Supreme Court. Suffice it now, for the purpose of commenting on the 2019 Supreme Court ruling, which is the subject of this commentary, that the initial decision of the Hague District Court in 2015 highlighted several points that have since been confirmed by the Court of Appeal and now by the Supreme Court[1].
It thus declared a violation of Article 21 of the Dutch Constitution, which establishes the obligation of the public authorities to ensure the habitability of the country and the protection and improvement of the environment, which imposes on the State a duty of due diligence in correlation. Secondly, it affirmed the existence of international and European regulations (such as reports of the IPCC, the United Nations Framework Convention on Climate Change, the principles of “no harm to the environment” or no-harm principle (Rio Declaration, principle 2), precaution and Article 191 of the Treaty on the Functioning of the European Union), which also obliges the State to comply with its duty of due diligence. From this, the court concluded that the Netherlands is committed to reducing emissions by 25-40 per cent from 1990 levels by 2020 and by 80-95 per cent by 2050.
It also considered the State’s obligation to take the necessary measures, with due diligence, to guarantee the rights set out in articles 2 (right to life) and 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR), signed in Rome in 1950. Finally, it ruled out an undue invasion of the judiciary from areas that constitutionally do not correspond to it, violating the separation of powers (political trias, relationship between the judiciary, the executive and the legislature). It rules out the possibility that the existence of discretion allows the Dutch state to do no matter what in any way, and on the contrary the decision maintained that “Based on its statutory duty – Article 21 of the Constitution – the State has an extensive discretionary power to flesh out the climate policy. However, this discretionary power is not unlimited” (paragraph 4.74).
As has been mentioned, having challenged the judgment on appeal, the Court in 2018 upheld the initial decision. Following the appeal decision, the advisory opinion of the Supreme Court’s Attorney General was issued in September 2019, recommending that the cassation be rejected. The Supreme Court ruling of 20 December 2019, available in Dutch, concludes that the State’s appeal in cassation should be dismissed.
Faced with a set of arguments, the Dutch Supreme Court proceeded to dismantle them one by one until the appeal in cassation was rejected. We can only consider here some of them. For example, with regard to whether it is possible to deduce from articles 2 and 8 of the ECHR requirements for the Dutch State to take measures, the Supreme Court states that these precepts oblige it to adopt appropriate measures to limit greenhouse gas emissions from Dutch territory and furthermore that such measures must be the result of the application of a legal standard of due diligence or due care, derived from good governance (actually, the Dutch text uses the English word good governance, a term extensively studied by the Dutch professor Addink in various works[2]). Thus, it points out that (our translation is from the Dutch text): “In addition, the court can assess whether the State with regard to the threat of a dangerous climate change is obliged (…) to comply with due diligence and to implement an appropriate and consistent policy (good governance)” (paragraph 6.5).
The Dutch Supreme Court uses the duty of due care or due diligence, based on the concept of good governance, which is linked to the concept of good government and to the right to good administration. It can be found in Article 41 of the Charter of Fundamental Rights of the European Union and includes a duty of due care or due diligence, in accordance with the case-law of the Court of Justice of the European Union which has established that it is “common to the constitutional traditions of the Member States” (Judgment of the Court of First Instance of 30 January 2002, max. mobil Telekommunikation Service GmbH v Commission of the European Communities).
Regarding whether there has been a violation of the separation of powers by the emission reduction court order, the Supreme Court denies this, noting that: “(…) After all, this order does not amount to an order to take specific legislative measures, but leaves the State free to choose the measures to be taken in order to achieve a 25% reduction in greenhouse gas emissions by 2020” (paragraph 8.2.7).
What lessons could we learn from this Dutch Supreme Court ruling with regard to other cases and countries? We think that there are several interesting lessons to be learnt. Firstly, in other legal systems too, there is a duty of due diligence or due care arising from the right to good administration. This duty establishes a legal standard of behavior that must be especially diligent or careful when it relates to the non-violation, protection and effectiveness of constitutional rights, as is the case with the environment[3]. In that sense, Sabino Cassese has underlined that the essence of Global Public Law is linked to the idea of good administration[4].
Likewise, Articles 2 and 8 of the ECHR and their interpretation by the European Court of Human Rights (ECtHR) are exactly applicable to other countries that have signed the Treaty and reinforce this duty of due diligence or due care with regard to the protection of rights. With regard to the case law of the ECtHR (e.g. Önerylidiz v. Turkey, 2004 and Budayeva v. Russia, 2008), the Court has stated that several articles of the ECHR imply a positive obligation (on national public authorities) to take all appropriate measures to protect rights (e.g. by preventing the risk of disasters). For example, it has been underlined that:
In a number of cases concerning positive obligations (…) the Court stressed in particular the importance of the principle of good governance. This principle requires that where an issue pertaining to the general interest is at stake, especially when it affects fundamental human rights, including property rights, the public authorities must act promptly and in an appropriate and above all consistent manner.
Consequently, we believe that such an action could be successful in other cases and countries as well. In this regard, we would like to end with an important and inspiring ruling by the Spanish Supreme Court, rapporteur Mr Rafael Fernández Valverde, of 17 November 2017, which, in a line surprisingly similar to the reasoning of the Dutch court (or perhaps not so surprising, given the common European framework), although in a different context (control of a town planning decision) points out the following, in general terms:
At present, at the European level, the Charter of Fundamental Rights of the European Union, proclaimed by the Nice European Council of 8/10 December 2000, dedicates its Article 41 to the so-called “right to good administration”. This provision is now included in the Treaty on European Union (Treaty of Lisbon) of 13 December 2007, ratified by the Instrument of 26 December 2008, which states in Article 6 that “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted on 12 December 2007 in Strasbourg, which shall have the same legal value as the Treaties”. In short, it is a question of the traditional idea of “good governance” in public management, anticipating events, in the face of the doubt that certain risks can be deduced from a certain activity, with error in future planning being preferable to loss of security; Obviously, as in the case at hand, no damage has yet been caused – which would undoubtedly condition the discretionary freedom of urban planning – but there is data which proves that there is no absolute scientific certainty, but rather evidence that it may come about; in such situations the public administration cannot remain impassive and must act with the due diligence inherent in the right to good administration.
Suggested Citation: Julio Ponce, A Landmark Dutch Supreme Court Ruling Obliges the State to Reduce Greenhouse Gas Emissions by 20%, Int’l J. Const. L. Blog, Jan. 31, 2020, at: http://www.iconnectblog.com/2020/01/a-landmark-dutch-supreme-court-ruling-obliges-the-state-to-reduce-greenhouse-gas-emissions-by-20%
[1] See T. PAREJO “La victoria de Urgenda: el inicio de la lucha judicial frente al cambio climático”, Revista española de derecho administrativo, Nº 177, 2016, pp. 259-279. Available at: http://columbiaclimatelaw.com/files/2016/09/Parejo-06-2016-La-Victoria-de-Urgenda.pdf
[2] H. ADDINK, Good Governance, Oxford University Press, 2019.
[3] J. PONCE, “The Right to Good Administration and the Role of Administrative Law In Promoting Good Government”, in A. CERRILLO and J. PONCE (eds.), Preventing Corruption and Promoting good Government and Public Integrity, Bruylant, 2017. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2737538
[4] S. CASSESE “Il diritto alla buona amministrazione”, European Review of Public Law, vol. 21(3), 1999, p. 1037 and ff.
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