Trends in Climate Justice Litigation: The Dutch Case and Global Repercussions

• Author: Jennifer Huang & Maria Antonia Tigre
• Pages: 571-596

571

Trends in ClimateJustice

Litigation: The DutchCase

andGlobal Repercussions

Jennifer Huang and Maria Antonia Tigre*

Introduction .................................................................................................571

I. Background on the Urgenda Case .........................................................573

A. eory of the Case .......................................................................... 573

B. e District Court’s Decision .........................................................576

II. Legal Implications of the Urgenda Case ................................................578

A. Judicial Overreach or Restoring Constitutional Balance? ................578

B. e Competence of the Civil Court Under EU Law ....................... 581

C. Dening Parties’ Obligations Under the UNFCCC ........................583

III. Implications for Future Climate Justice Litigation ................................589

A. Foreign Domestic Courts................................................................589

B. U.S. Courts ...................................................................................591

Conclusion ...................................................................................................594

Introduction

It was the climate case heard around the world. Urgenda Foundationv.e

State of the Netherlands (Ministry of Infrastructure and the Environment)1has

been hailed as a historic decision, the rst in Europe in which human rights

and international law have been used to determine a government’s duty

of care to its citizens with respect to climate change regulation. e out-

come has been lauded by environmentalists throughout the world. Later in

2015, the Paris Agreement2 was universally adopted by Parties to the United

1. RB-Den Haag [Hague District Court] 24 Juni 2015, ECLI:NL:RBDHA:2015:7196 (Stichting

Urgenda/Nederlanden) [Urgenda Found. v. Netherlands], http://uitspraken.rechtspraak.nl/inziend

ocument?id=ECLI:NL:RBDHA:2015:7145 (last visited Aug. 23, 2016), translated at http://www.

urgenda.nl/documents/VerdictDistrictCourt-UrgendavStaat-24.06.2015.pdf [hereinafter Judgment].

2. Adoption of the Paris Agreement, UNFCC Conference of the Parties, 21st Sess., U.N. Doc. FCCCC/

CP/2015/10/Add.1 (Dec. 12, 2015), http://unfccc.int/les/home/application/pdf/paris_agreement.

pdf [hereinafter Paris Agreement].

* e authors would like to thank Teodora Siderova, Stetson University College of Law

(J.D. 2016), for her research assistance.

Chapter 21

572 Climate Justice

Nations Framework Convention on Climate Change (UNFCCC), a signal

that countries are willing to work together to do more to address climate

change. In that context, the judgment can be seen as pushing for the most

ambitious climate action in a world where greater action is urgently needed.

Despite these hopeful developments, the district court’s judgment in

Urgenda rests on lega l assessments that raise questions regarding the obliga-

tions of a State, particularly a European Union (EU) Member State, to uni-

laterally act beyond the scope of existing legal obligations under domestic,

regional, and international law. Clarity on the interplay between these levels

of international environmental law, however, is critical. As countries prepare

their nationally determined contributions (NDCs) to the Paris Agreement,

they will want to anticipate whether they can be subject to similar climate

litigation.

is chapter highlights some of the legal issues in the Urgendacase and

the implications for similar climate justice litigation in other countries. Part

I examines the court’s decision in Urgenda. Part II assesses a number of views

on three key legal questions raised by the Urgenda case. At the domestic level,

legal experts remain divided over whether the court’s decision overreaches

its judicial authority or whether it presents a much-needed eort to correct a

constitutional imbalance. At the European level, the district court may not

have authority to issue a ruling that implies that the Netherlands’ compli-

ance with its EU obligations was unlawful. Finally, this section reviews vari-

ous international and regional legal commitments and general principles that

the Netherlands upholds under the general rules of treaty interpretation and

international law.

Part III considers the implications of Urgenda for other climate cases, both

in Europe and abroad. Many of the issues raised in Part III are limiting fac-

tors for other jurisdictions. e chapter concludes that both the Urgenda

case and the Paris Agreement usher in a new era in climate action. Govern-

ments and civil society are engaging more than ever on climate change, with

climate justice litigation providing some of the means by which to engage

in a serious dialogue between governments and citizens on how to increase

regulatory ambition. A new wave of climate pledges can provide the material

from which to bring some of these cases, but overly zealous litigation can

have the unintended eect of undermining aspirational policies a nd mea-

sures. Domestic courts, and perhaps even regional courts, will need to criti-

cally assess their role in reconciling these forces in seeking to promote climate

justice.