Court sets emission reduction targets for Dutch Government

By EDO NSW Principal Solicitor Sue Higginson

25 June 2015

In landmark climate change litigation the Dutch Government has been ordered to cut its greenhouse gas emissions by 25% within 5 years.

A Dutch Court in the Hague has set the Dutch Government’s targets by court order. In contrast, Australia will set its climate change (emission reduction) targets through the Cabinet of the Australian Government. They are set to be announced next month in July.

The Dutch case came about because 886 Dutch citizens, through an organisation called Urgenda, took the Dutch Government to Court and argued that by not acting to prevent climate change, it is liable for knowingly exposing its citizens to danger and is in breach of its duty to care for its citizens.

Dutch civil laws are much more specific in their terms than Australian laws. In arguing the duty of care Urgenda relied on a number of legal instruments including:

  • the international obligation on States to abide by the ‘no-harm’ principle;
  • formal international obligations, which are a ‘common responsibility’ of all nations;
  • an Article of the Dutch Constitution which provides that ‘[i]t shall be the concern of the authorities to keep the country habitable and to protect and improve the environment’ (Article 21); and
  • provisions in the European Convention on Human Rights, which provide, respectively, a right to life and a right to respect for private and family life (Articles 2 and 8). This Convention is formally binding in Dutch law.

Urgenda argued that climate change poses a real and dangerous threat and this was evidenced by both international consensus and the fact that the Dutch government had admitted to Urgenda the danger of climate change and the inadequacy of their response. Urgenda also argued the international consensus is that a lack of action on climate change will be more costly in the future than actions taken now to prevent dangerous climate change.

Articles 2 and 8 of the European Convention on Human Rights have previously been found to impose a requirement on European Governments to protect their citizens by preventing damage caused by environmental pollution. Urgenda argued that the same provisions impose a requirement on the Dutch Government to protect its citizens from climate change impacts.

While similar litigation is now apparently being contemplated by Belgium (another civil law jurisdiction) and Norway, Australians are wondering what they can do.

The common law system in Australia is much more nuanced than the relatively straight-forward Dutch civil law model. Also, in Australia there is no overarching domestic incorporation of international human rights laws as there is in the Dutch Constitution. The specific precedents from the European Convention on Human Rights do not apply to the Australian Court context. Additionally, there is no constitutionally imposed general duty of care on the Government in Australia for environmental protection, as in the Dutch Constitution.

Despite these limitations and jurisdictional differences, EDO NSW will continue to explore a range of legal avenues and options and commence climate change litigation proceedings on behalf of the Australian community.

This groundbreaking case has drawn significant attention to climate change, community and law.