Potential Implications for the United States of the Urgenda Foundation v. Netherlands Decision Holding that the UNFCCC and International Decisions Required Developed Nations to Reduce Emissions by 25% from 1990 Levels by 2020

Abstract

In Urgenda Foundation/State of the Netherlands, Rechtbank Den Haag [Hague District Court], 24 june 2015, C/09/456689, HA ZA 13-1396 (Neth.) the Netherlands Hague District Court held that private plaintiffs could bring an action in tort against the government of the Netherlands to compel the government to implement its obligations under the United Nations Framework Convention on Climate Change (“UNFCCC”). Based on an interpretation of the obligations of developed Annex I nations under the UNFCCC, decisions reached at the conferences of the parties pursuant to the UNFCCC, and a close analysis of the accepted science of climate change, the Court held that the Dutch government was obligated by its duty of due care to implement its laws to achieve greenhouse gas emissions reductions of at least 25% from 1990 levels by 2020. The requirements of the UNFCCC, decisions and scientific conclusions construed by the Dutch Court are equally applicable to the United States, whose laws also require that the courts construe statutes consistently with treaties. The holding would apply with particular force to the construction of the Clean Air Act and other laws that the Administration has identified as means to implement the UNFCCC. Thus, the decision could be applicable to challenges to the Clean Power Plan and other Administrative actions that it has identified as means to meet the United States’ obligations under the UNFCCC. Although the tort holding would not apply to the federal government of the United States, other federal authorities provide private parties with causes of action to challenge or compel government action relating to climate change. The decision regarding the duty of care could, however, be applicable to U.S. states with constitutional or public trust doctrines similar to those in Dutch law. Whether the decision will be appealed or extended to other jurisdictions, situations or parties is unclear.