Court finds the Netherlands’ 20% greenhouse gas emissions target to be unacceptable, citing the UN Framework Convention on Climate Change and the ECHR.

By Paul A. Davies and Michael D. Green

On 20 December 2019, the Dutch Supreme Court upheld the Court of Appeal ruling in the Urgenda case, determining that the Dutch State was required to reduce Dutch greenhouse gas emissions by 25%[i] by the end of 2020. This decision marked the final ruling in a series of cases dating back to 2015.

In 2015, environmental nongovernmental organization, the Urgenda Foundation (Urgenda), brought a case against the Dutch State, alleging that the national target for greenhouse gas emission reductions was insufficient. The Dutch target at that time was the EU-wide figure of 20% compared to 1990 levels. According to Urgenda, the risks of climate change meant that the 20% target was insufficient, and only a decrease of at least 25% would be adequate.

The Hague District Court at first instance agreed with Urgenda, and ordered emissions be reduced by 25% by 2020, a finding that was initially confirmed by the Hague Court of Appeal in 2018. Now, the Dutch Supreme Court has followed suit.

The Supreme Court judgment was based on the provisions of the UN Framework Convention on Climate Change and the European Convention on Human Rights (ECHR). Specifically, the Supreme Court found that there was a wide scientific consensus that climate change could lead to significant damage to citizens throughout the world, and that greenhouse gas emissions were the leading cause of climate change. As a result, it held that the Dutch State had direct obligations under articles 2 and 8 (right to life, and right to private and family life) of the ECHR, to ensure that emissions were reduced in line with acceptable limits. In order to meet these obligations, the Supreme Court determined that a scientific consensus existed holding that temperatures should be required to not rise by more than 2 degrees Celsius from pre-industrial levels.

The Dutch State had tried to argue that its 20% target was reasonable, and also that issues such as the percentage reduction of greenhouse gases in the economy were inherently political. However, the Supreme Court found these arguments unpersuasive. It determined that the Dutch State had failed to justify why a 20% target would be acceptable, given the “large degree of consensus in the scientific community on the need for developed countries to reduce emissions by at least 25% by the end of 2020” in order to stay below the 2-degree target, and upheld the Court of Appeal’s ruling to implement the 25% target. Further, it determined that the Dutch Constitution requires the Dutch courts to apply the provisions of the ECHR, and therefore the breaches of articles 2 and 8 that would result from the implementation of the 20% target led the matter to be justiciable.

Eric Wiebes, the Dutch climate minister, said that the government would “take note” of the decision and issue a full response in the second half of January, whilst referring to the additional climate measures introduced in the Netherlands over the course of 2019.

Latham & Watkins will continue to monitor developments in this area.

This blog post was prepared with the assistance of James Bee in the London office of Latham & Watkins.

[i] Compared to 1990 levels.