Situating Urgenda v the Netherlands within comparative climate change litigation

Abstract

This article situates the judgment of The Hague District Court in Urgenda Foundation v the Kingdom of the Netherlands within the life of global climate change litigation. To do so, the article concentrates on the legal particulars of Dutch law, elements of ‘diffused’ jurisprudence from other jurisdictions and the reasoning of the judgment that is ‘diffusible’. First, the Court's mandate for the State to take more robust and immediate climate mitigation action was informed by particulars of Dutch civil and constitutional law. Such particulars assisted with crossing the hurdles of standing of Dutch citizens in a climate change case, and the imposition of liability on the State for transboundary harm. Secondly, in relation to the separation of powers, there is clearly a marriage of ‘diffused’ jurisprudence from other jurisdictions and Dutch legal particulars with the primary effect of providing Connecticut v AEP a second life. Thirdly, aspects of the Court's reasoning are ‘diffusible’ or amenable to transnational borrowing. Notable in this regard is the Court's adoption of a procedural version of the precautionary principle, whereby the onus of proving adequacy and effectiveness of climate policy is shifted on to the State. However, caution must be exercised in adopting the Court's reasoning as to why the international (namely the Intergovernmental Panel on Climate Change) is identified as a preferred benchmark for allocation of climate targets as against the supranational (namely the Effort Sharing Decision of the EU) and the implicit economic reasoning as to why the State's policies are ineffective. To overcome this problem, it is suggested that the appointment of experts by judicial bodies may be the way forward.