29
EU GHG emissions reduction targets; (3) the rights to life and to respect for private
and family life as protected by the European Convention on Human Rights (Articles
2 and 8); (4) the no harm principle of international law, as laid down in the Trail
Smelter case; (5) the doctrine of hazardous negligence under Dutch Civil Code
(Section 6:162); (6) the precautionary and sustainability principle embodied in the
UNFCCC; (7) the principle of a high protection level, the precautionary principle,
and the prevention principle as embodied in the main EU environmental and climate
policies (art. 191 TFEU).
6
Climate science played an even more prominent role in the appellate judgment
before The Hague Court of Appeal.
7
Whilst the Dutch government in the wake of
the District Court decision adopted a 49% GHG emissions reduction target by 2030
(as compared to 1990 levels), it did not commit to an interim target of at least 25%
reduction by 2020, thus limiting to the previous 20% reduction commitment as
agreed at EU level.
The Appellate Court upheld the District Court decision, hence further recognizing the inadequacy of the interim 20% GHG emission reduction target to 2020 to
fulfill the State’s obligation to protect its citizens. To this end, the Court extensively
relied on IPCC’s AR5 to acknowledge: (a) the existing linear relation between GHG
emissions and global warming
8
; (b) the general consensus on the scientific evidence
that global temperature increase should not exceed 2° by 2100 (paras. 3.3–3.5); (c)
that IPCC’s AR4 and AR5 as officially adopted throughout all subsequent UNFCCC
COPs, although “may not have established a legal standard with a direct effect”, yet
provide strong evidence of a “real threat of dangerous climate change, resulting in
the serious risk that the current generation of citizens will be confronted with loss
of life and/or a disruption of family life […]”, which the State’s ought to protect
pursuant to Articles 2 and 8 ECHR (par. 45). Furthermore, the Appellate Court concluded that Dutch State’s 2020 20% GHG emission reduction target had no substantiation based on climate science, while it was an established fact that postponing
higher interim reductions would cause continued emissions of CO 2 , which in turn
contribute to further global warming (para. 52). More specifically, the Dutch State
6 In particular, where determining the scope of the duty of care of the State, the court has taken
account of:
(i) the nature and extent of the damage ensuing from climate change;
(ii) the knowledge and foreseeability of this damage;
(iii) the chance that hazardous climate change will occur;
(iv) the nature of the acts (or omissions) of the State;
(v) the onerousness of taking precautionary measures;
(vi) the discretion of the State to execute its public duties, with due regard to the latest scientific
science, the available (technical) options to address necessary security measures to, and the costbenefit ratio of the same security measures.
7 Urgenda Foundation v. The Netherlands [2018] HAZA C/09/456689 (October 9, 2018).
8 For example, in the discussion of the risk of reaching “tipping points” with a temperature rise of
between 1 and 2 °C, the court cited the IPCC AR5 Working Groups I, II and III Synthesis Reports
(para. 44).
Climate Science Before the Courts: Turning the Tide in Climate Change Litigation
EU GHG emissions reduction targets; (3) the rights to life and to respect for private
and family life as protected by the European Convention on Human Rights (Articles
2 and 8); (4) the no harm principle of international law, as laid down in the Trail
Smelter case; (5) the doctrine of hazardous negligence under Dutch Civil Code
(Section 6:162); (6) the precautionary and sustainability principle embodied in the
UNFCCC; (7) the principle of a high protection level, the precautionary principle,
and the prevention principle as embodied in the main EU environmental and climate
policies (art. 191 TFEU).
6
Climate science played an even more prominent role in the appellate judgment
before The Hague Court of Appeal.
7
Whilst the Dutch government in the wake of
the District Court decision adopted a 49% GHG emissions reduction target by 2030
(as compared to 1990 levels), it did not commit to an interim target of at least 25%
reduction by 2020, thus limiting to the previous 20% reduction commitment as
agreed at EU level.
The Appellate Court upheld the District Court decision, hence further recognizing the inadequacy of the interim 20% GHG emission reduction target to 2020 to
fulfill the State’s obligation to protect its citizens. To this end, the Court extensively
relied on IPCC’s AR5 to acknowledge: (a) the existing linear relation between GHG
emissions and global warming
8
; (b) the general consensus on the scientific evidence
that global temperature increase should not exceed 2° by 2100 (paras. 3.3–3.5); (c)
that IPCC’s AR4 and AR5 as officially adopted throughout all subsequent UNFCCC
COPs, although “may not have established a legal standard with a direct effect”, yet
provide strong evidence of a “real threat of dangerous climate change, resulting in
the serious risk that the current generation of citizens will be confronted with loss
of life and/or a disruption of family life […]”, which the State’s ought to protect
pursuant to Articles 2 and 8 ECHR (par. 45). Furthermore, the Appellate Court concluded that Dutch State’s 2020 20% GHG emission reduction target had no substantiation based on climate science, while it was an established fact that postponing
higher interim reductions would cause continued emissions of CO 2 , which in turn
contribute to further global warming (para. 52). More specifically, the Dutch State
6 In particular, where determining the scope of the duty of care of the State, the court has taken
account of:
(i) the nature and extent of the damage ensuing from climate change;
(ii) the knowledge and foreseeability of this damage;
(iii) the chance that hazardous climate change will occur;
(iv) the nature of the acts (or omissions) of the State;
(v) the onerousness of taking precautionary measures;
(vi) the discretion of the State to execute its public duties, with due regard to the latest scientific
science, the available (technical) options to address necessary security measures to, and the costbenefit ratio of the same security measures.
7 Urgenda Foundation v. The Netherlands [2018] HAZA C/09/456689 (October 9, 2018).
8 For example, in the discussion of the risk of reaching “tipping points” with a temperature rise of
between 1 and 2 °C, the court cited the IPCC AR5 Working Groups I, II and III Synthesis Reports
(para. 44).
Climate Science Before the Courts: Turning the Tide in Climate Change Litigation