Establishing a Governmental Duty of Care for Climate Change Mitigation: WillUrgendaTurn the Tide?

Josephine van Zeben

doi:10.1017/s2047102515000199

Abstract

AbstractLiability for causing or failing to mitigate climate change has long been proposed as an alternative, or backstop, to lagging international cooperation. Thus far, there has been very limited success in holding governments or individuals responsible for the emission of greenhouse gases (GHGs) that are considered the primary cause of anthropogenic climate change. The recent landmark decision inUrgenda Foundationv.Government of the Netherlands (Ministry of Infrastructure and the Environment)breaks with this tradition. In June 2015, the Dutch District Court (The Hague) held that the current climate policies of the government are not sufficiently ambitious for it to fulfil its duty of care towards Dutch society. The judgment, and the accompanying order for the government to adopt stricter GHG reduction policies, raises important questions about the future of climate change liability litigation, the separation of powers between the judiciary and the legislature, and the effect of litigation on international climate change negotiation and cooperation.

Highlights

Small as it is, the continued existence of the Kingdom of the Netherlands represents a sizeable victory of willpower and engineering over the natural environment
By the 1980s, the Netherlands had maneuvered itself into a position of environmental leadership, with respect to participatory environmental policy, which explicitly reserves space for non-governmental organizations (NGOs) and interest groups.[2]
Given its historic experience with transboundary environmental problems, this leadership logically extended to climate change mitigation and adaptation, and the Dutch government was able to strengthen its international influence through the European Union (EU).[3]

Summary

Introduction

The continued existence of the Kingdom of the Netherlands represents a sizeable victory of willpower and engineering over the natural environment. The Court denied the existence of any directly enforceable (individual) right based on the European Convention on Human Rights (ECHR),[50] or the international ‘no harm’ principle, but rather referred to these provisions as meaningful in the interpretation of its duty of care under Section 6:162.51 This brings us back to one of the core questions raised by the District Court’s ruling: does the legal basis for liability in Urgenda – the Dutch onrechtmatige daad (tortious act) – have suitable equivalents to provide a basis for similar actions in other jurisdictions?

A Duty of Care for the Climate

Separation or Balance of Powers?

Findings

Urgenda