Worldwide: The Dutch Climate Case: Beginning Of A New Era Of Climate Litigation?

In an worldwide first, the Hague District Court has ordered the Dutch government to cut its greenhouse gas emissions (GHGs) by at least 25% compared to 1990 levels by the end of 2020. The decision, an English translation of which can be found here, has been widely reported and discussed (including in an interview on CBC Radio's The Current with Dianne). It has rekindled hopes around the world that courts can spur governments into taking serious steps to deal with climate change.

Could a similar case be brought successfully in Canada?

Background

The suit was brought against the Dutch government by Urgenda, a Dutch foundation dedicated to sustainability, and nearly 900 individuals.

The Plaintiffs argued that the Dutch government owes its citizens a duty of care to protect them from severe but avoidable harm. The Dutch government has already accepted the scientific findings of the Intergovernmental Panel on Climate Change, the United Nations Environmental Programme, and several Dutch agencies that warming of more than 2° C above pre-industrial temperatures will likely entail catastrophic consequences for humans and the environment, including the Dutch. The Dutch government also accepts that its targets for reducing greenhouse gas ("GHG") emission levels (about 17% below 1990 levels by 2020) would not proportionately contribute towards staying below this 2° C threshold. At an international meeting, Holland had signed a communiqué stating that cuts of at least 25% to 40% by 2020 were necessary.

Urgenda argued that the Dutch state had therefore breached a duty of care owed to them (and to Dutch society generally), had infringed their rights under the European Convention on Human Rights ("ECHR"), and had contravened various obligations under international law and the Dutch Constitution. The government argued that its commitments were fair compared with those made by other countries, and that the court had no legitimate right to dictate climate change and economic policy to a democratically elected government.

The Court undertook an exhaustive examination of the current science on climate change, which both sides accepted. It also reviewed the legal and policy frameworks developed at the national, European Union, and international levels, including the United Nations Framework Convention on Climate Change ("UNFCCC"), the Kyoto Protocol, the Treaty on the Functioning of the European Union ("TFEU"), and various customary principles of international environmental law, such as the "no harm" principle.

The Court concluded that the Dutch state"has a serious duty of care to take measures to prevent" catastrophic climate change (4.65) and to "mitigate as quickly and as much as possible" (4.73). This duty was not excused by the Netherland's comparatively minor contribution to global GHG emissions (4.79), because its per capita emissions are high.

To satisfy its duty of care, the Dutch government had to act on its own international commitment, and to reduce emissions by 25% below 1990 levels.

In coming to this conclusion, the Court found that the Netherlands's various international legal obligations (including under the ECHR, UNFCCC, and TFEU) did not create an enforceable legal obligation on the part of the state towards the Plaintiffs. However, these obligations were important in determining the scope of the State's duty of care and whether or not it had been breached (4.52):

[Firstly,] it can be derived from these rules what degree of discretionary power the State is entitled to in how it exercises the tasks and authorities given to it. Secondly, the objectives laid down in these regulations are relevant in determing [sic] the minimum degree of care the State is expected to observe [emphasis added].

While it is up to the Dutch state to determine details of its national climate policy, (4.55)

due to the nature of the hazard (a global cause) and the task to be realised accordingly (shared risk management of a global hazard that could result in an impaired living climate in the Netherlands), the objectives and principles, such as those laid down in the UN Climate Change Convention and the TFEU, should also be considered in determining the scope for policymaking and duty of care.

Implications for Canada and the rest of the world

The question on everyone's lips following the Dutch victory is: could a comparable case find success elsewhere?

There is currently no shortage of climate litigation unfolding around the world. (Thework of the Sabin Centre for Climate Change Law at Columbia Law School, for example, provides a glimpse of the scale and diversity of this activity, both in the US and around the world).The success of the Dutch case will likely inspire additional attempts. Even before the decision came down, a Belgian NGO had filed a suit based on a similar premise against Belgium, and another is anticipated in Norway.

Of course, it is by no means clear that the Dutch victory will be replicated elsewhere. As a relatively recent string of disappointing challenges against various utility and energy companies in the US demonstrates (see e.g. Massachusetts v EPA, 549 US 497 (2007); Comer v Murphy Oil USA, 839 F Supp (2d) 849 (SD Miss 2012); Native Village of Kivalina v ExxonMobil Corp, 696 F 3d 849 (9thCir 2012)), most courts have been loathe to interfere in complex economic policy based on complex probabilities that are themselves based on complex science. Most prefer to leave such matters to policy makers.

To date, all Canadian courts have ruled that climate change policy is "not justiciable", i.e. not within their jurisdiction. Challenges to the Canadian government's approach on climate change have therefore been rejected, including judicial review of the federal government's failure to comply with the Kyoto Protocol Implementation Act, SC 2007, c 30 (Friends of the Earth v Canada (Governor in Council), 2008 FC 1184, aff'd 2009 FCA 297, leave to appeal to the SCC denied, [2009] SCCA 497) and of its decision to withdraw from the Kyoto Protocol (Turp v Canada, 2012 FC 893).

That said, the time may now be ripe for courts to step in. In the years since these cases were argued, the science has become much clearer and the international consensus stronger: climate change is creating catastrophic risks. Moreover, from extreme weather events to shrinking shorelines, the effects of climate change have become more tangible and more immediate. As the threat builds, and the foreseeable harm multiplies, courts may feel more at ease to demand action.

While it would certainly be an uphill battle, a similar outcome is not unimaginable in Canada. While not a directly applicable precedent, of course, the Dutch decision demonstrates how the courts can effectively wade through the complex science data and apply these findings to basic principles of negligence. Likely, any Canadian challenge would similarly rely upon an assortment of legal principles and instruments, both international and domestic, including the Charter.

Finally, as the world gears up for December's COP in Paris, the Dutch decision offers renewed support for the hope that, despite years of disappointing negotiations, multilateral obligations remain both relevant and important in the battle against climate change. The decision demonstrates how international commitments, instruments, and international environmental law principles, even if not directly enforceable, can be used by courts in conjunction with constitutional rights and private law obligations to give shape to the state's obligation to take decisive action against climate change.

A slightly modified version of this article originally appeared on slaw.ca on August 21, 2015.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Dianne Saxe
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