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Dutch Supreme Court Upholds Climate Lawsuit against Government

The Dutch Supreme Court on December 20th rejected an appeal by the Dutch government to overturn an appellate court’s October 2018 decision to uphold a lower court’s June 2015 decision requiring the government to cut Holland’s carbon dioxide emissions at least 25 percent below 1990 levels by 2020. A rough English translation of the Supreme Court’s summary of the ruling is available here.

In 2015, plaintiffs in the case, an eco-litigation group called Urgenda (“urgent agenda”), argued that the government’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 acknowledged 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 it 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 discussed several pathways by which the world can reduce emissions to achieve the Paris Agreement’s 2°C target.

The appeals 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 appeals court concluded, the government must start right away to reduce emissions 25-40 percent by 2020.

In the case just decided, the Supreme Court ruled that the government’s plan to wait until after 2020 to make rapid emission reductions is contrary to the broad “consensus” affirmed by the IPCC and the European Union. According to that official assessment, limiting global warming to 2°C, keeping the 1.5°C goal “within reach,” and avoiding dangerous “tipping points” require a 25-40 percent cut in industrial country emissions by 2020.

The government argued that it is not up to courts to decide the schedule on which the Netherlands meets legislatively determined greenhouse gas reduction targets. The Supreme Court conceded that the “government and parliament . . . have a great deal of freedom to make the necessary political decisions.” However, the court decided that the current schedule does not stay within the “limits of the law to which” the government and parliament “are bound,” namely, the European Convention on Human Rights. The government’s schedule “lags behind the requirements of article 2” of the ECHR, which decrees that “Everyone’s right to life shall be protected by law.”

Breathtaking. The court is imposing specific emission-reduction targets and timetables that are not even included in the ostensibly “non-binding” Paris Agreement, all based on the alleged imperatives of a human rights treaty. 

This is judicial tyranny in overdrive. There is hardly any public policy decision that does not create or increase someone’s mortality risks. For example, Europe’s climate taxes and regulations endanger human life by holding back economic growth, inflating energy costs, and exacerbating fuel poverty (i.e., households too poor to maintain an adequate level of warmth in wintertime without skipping meals, missing rental payments, or forgoing other necessities). Fuel poverty killed almost 17,000 people in the UK alone during 2013-2017, according to climate change think tank 3GE. So, by the court’s logic, the European Convention on Human Rights requires the Dutch government to reject carbon taxes or their regulatory equivalent due to the adverse impacts of such policies on household energy costs.  

In free countries, politically-accountable elected officials, not judges, make the prudential judgments about the risk tradeoffs inherent in policy decisions. Alas, as this case confirms, climate hysteria is no respecter of prudence, the separation of powers, or political accountability.

This post was updated December 23, 2019.