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Dutch Appeals Court, Citing Paris Climate Treaty, Upholds Climate Lawsuit

A Dutch appeals court last week upheld a lower court’s June 2015 decision requiring the government to cut Holland’s carbon dioxide emissions 25 percent below 1990 levels by 2020. A rough English translation of the court’s decision is available here.

In 2015, plaintiffs in the case, an eco-litigation group called Urgenda (“urgent agenda”), argued that the Hague’s plan to cut emissions 16 percent by 2020 did not go far enough given officials’ repeated affirmations at United Nations climate summits of the need to avoid 2°C of global warming. Although non-binding under international law, the government’s pledges created a “duty of care” under Netherlands law with respect to climate change, plaintiffs argued. The lower court agreed.

The government challenged the 2015 decision, but the appeals court also decided in favor of plaintiffs. Among other authorities, the appeals court cited the Paris Climate Agreement, which affirms the “urgent need” to hold global warming “well below 2°C above pre-industrial levels” by 2100, and to “pursue efforts to limit the temperature increase to 1.5°C.”

The government argued that it has already committed to reduce Dutch emissions 49 percent by 2030, and there is no necessity to achieve that result on any particular schedule over the next dozen years. As evidence, the government cited the IPCC’s Fifth Assessment Report, which discusses several pathways by which the world can reduce emissions to achieve the Paris Agreement’s 2°C target.

The court rejected that reasoning, noting that some IPCC pathways envision deployment of “negative emission” technologies such as direct air capture that are not yet commercially feasible. The court also argued that the Paris treaty’s aspirational 1.5°C target makes “increased pre-2020 mitigation action . . . more urgent than ever.” Hence, the court concluded, the government must start right away to reduce emissions 25-40 percent by 2020.

In the U.S. climate policy debate, supporters claim the Paris treaty poses no risk to America’s economic future because the pact’s emission-reduction commitments are “non-binding” under international law. The Dutch climate cases are a stark reminder that “non-binding” does not mean no legal risk.

The U.S. government cannot remain in the Paris treaty without taking ownership of the treaty’s 2°C and 1.5°C climate mitigation targets and the underlying “science.” Clever litigators will demand that U.S. policymakers back up words with deeds, and activist judges will see opportunities to make history.

Although progressives will never stop trying to use courts to impose climate policies rejected by Congress, withdrawing from the Paris Agreement can only decrease the odds that plaintiffs hostile to the emerging era of U.S. energy dominance will have their day in court or win.