Climate Litigation x Governments: A surprisingly (un)revolutionary approach

Litigation, going to court, is by definition not a fun business.
And yet, in this 2023 several Climate Litigation cases have already caught the headline – and many more are in the makes as the Climate Case Chart database (a Columbia University project) shows.

Most prominently among them, the Swiss Senior Women for Climate Protection‘s case that went from being rebuffed by the Swiss Federal Court to being read by Grand Chamber of the European courts of Justice – something that only ever happens with decisions that are expected to be a judiciary landmark across the EU or indeed (indirectly) internationally.

The Court may sit as a full court, in a Grand Chamber of 15 Judges or in Chambers of three or five Judges.
The Court sits as a full court in the particular cases prescribed by the Statute of the Court […] and where the Court considers that a case is of exceptional importance.
It sits in a Grand Chamber when a Member State or an institution which is a party to the proceedings so requests, and in particularly complex or important cases.

Other cases are heard by Chambers of three or five Judges.

Source: Court of Justice of the European Union, Court of Justice, Composition

Interestingly – and this can be well seen in how the Columbia University data base (mentioned above) organises its information: There are two fundamentally different types of litigations:

• Against governments, and
• against natural and legal persons, i.e. individuals or companies.

As at writing, the database records a global total of 2485 cases. Of these, 691 are brought globally against governments, 173 are brought globally against individuals or corporations, and 1621 are brought forward in the US.

Side note: Sadly the US cases contained in the database to not offer the primary differentiation attribute (suing target: government, or natural or legal person?) – likely a case of ‘not seeing the wood for the trees’ as the database is evidently maintained by a US law school.

Many of these cases are – one could argue – on comparatively minor issues, if one is inclined to focus on the big challenges that put our global society at a severe risk: Climate Change and Biodiversity Collapse. Among those remaining cases, one particular case sticks out like – depending on the political viewpoint – either a lighthouse of hope, or a sore thumb: Urgenda vs Government of the Netherlands.

Who were the plaintiffs?

• The Dutch Urgenda Foundation: is a Dutch NGO aims for a fast transition towards a sustainable society, with a focus on the transition towards a circular economy using only renewable energy.
• 886 individually named and identified Dutch citizens

What was it exactly all about?

The key point the litigation was about fits into a rather short sentence:

“Failure of the Dutch State to take sufficient actions to prevent dangerous climate change.”

Source: Case Title, Court Verdict of 24 June 2015, (English Summary)

What were the key arguments for the courts to decide in favour of Urgenda? [Short Version]

→ For the long, and more detailed version drawing from the actual judgements, please see at the end of this post.

1. All legal requirements for the Dutch government to become active already exists.
2. There are previous court cases and government decisions, and adjacent but not identical matters, that would suggest that the Dutch government needs to get active in regards to setting Climate Change mitigation goals, and implement them stringently.
3. This is not a political decision but science-based decision that links closely to the welfare and well-being of the Dutch people.
4. The emission reductions must be in-lined with science and therefore must reach 40% below 1990 levels by the year 2020.
5. It is entirely OK and indeed required that the Netherlands as a country is accountable for its part of the emissions and reduced those, no matter if or not other nations to the same.

Are the Netherlands the only jurisdiction where the government is being taken to court?

Not at all.

• Urgenda maintains a country-by-country list with summaries about the individual cases.
• And the Climate Litigation Network is a network of international lawyers, law professionals and academics that engage in Climate litigation and how to scale the approach across jurisdictions.
• All of these approaches base themselves on research completed by the London School of Economics, namely:
  • Global trends in climate change litigation: 2022 snapshot
  • Challenging government responses to climate change through framework litigation
• These again, base themselves on a review again by the London School of Economics:
  • Urgenda v State of the Netherlands: Lessons for international law and climate change litigants

What do these developments mean?

The climate litigations fit neatly into a global trend where individuals as well as corporations become active through various channels that the law permits them. In some cases, these approaches are linked to investors’ laws, in others – like the Dutch case – they revert back to the Duty of Care by governments.

That this is an approach that has been expected to happen – albeit not necessarily in this very incarnation – can be seen when reading back through the Principles for Responsible Investment’s (PRI) ‘Inevitable Policy Response’ archives. The details of that work have been discussed in early 2020 in three instalments on this blog here, here and here.

However, the approach to how successful take these litigations forward is by and large still ‘under investigation’, or more to the point: it is still a little bit ‘trial and testing the waters’ to find the most successful lever through the courts. This applies across both dominant both legal ‘traditions’: Case Law (= common law) as well as Statutory Law.

What can be observed though is that global collaboration is allowing for an extremely steep learning curve of those that file the climate litigation cases. It is evident that governments are not able – possibly thankfully – to keep up with this speed.

What remains to be seen is, if and how such cases will ever be brought to court in jurisdictions dictator-ship like jurisdictions, such as China or parts of Africa, and at which point they may be allowed to go on trial at all.

———-

What were the key arguments for the courts to decide in favour of Urgenda? [Long Version]

• Original Court Case,
  District Court of The Hague.
  • Summons of 20^th November June 2013 (English Summary):
    • [Page 21, Paragraph 44]:
      The core of what Urgenda and all other plaintiffs are seeking in these proceedings is an order directing the Dutch State to take action to limit the amount of CO2 emissions to 40% below the 1990 level by 2020. All other claims are similar in scope, but are either derived from, supportive to, or less demanding than this core claim.
    • It is argued that the Dutch government did (does) not full fill its duty of care for its citizens by not reducing its GHG emissions significantly.
      This is supported by cases supposed to be similar that draw from environmental protection laws and court cases in their realm, to human rights infringement cases.
    • The argument is further that the Dutch state has all the laws and regulations in place to enforce such reductions, but chooses not to do so primarily for financial reasons (income directly or indirectly generated through fossil fuels).
  • Decision of 24^th June 2025 (English Translation)
    • “The State must do more to avert the imminent danger caused by climate change, also in view of its duty of care to protect and improve the living environment. The State is responsible for effectively controlling the Dutch emission levels. Moreover, the costs of the measures ordered by the court are not unacceptably high. Therefore, the State should not hide behind the argument that the solution to the global climate problem does not depend solely on Dutch efforts. Any reduction of emissions contributes to the prevention of dangerous climate change and as a developed country the Netherlands should take the lead in this.
    • With this order, the court has not entered the domain of politics. The court must provide legal protection, also in cases against the government, while respecting the government’s scope for policymaking. For these reasons, the court should exercise restraint and has limited therefore the reduction order to 25%, the lower limit of the 25%-40% norm.”
• Appeal by the Dutch Government against the 2015 Verdict.
  The Hague Court of Appeal.
  Submission of Appeal: 29^th September 2015. Court date of Appeal: 28^th May 2018.
  • The grounds of appeal where various, but fundamentally stating that CO2 Emission reduction pathway decision belong to the realm of political decisions, and therefore cannot be decide by courts. More extensively, the Dutch Government claimed that partial liability or human rights law to not apply.
  • Appeal verdict, 8^th November 2018 (English Version)
    • “The Court of Appeal has based its ruling on the State’s legal duty to ensure the protection of the life and family life of citizens, also in the long term. This legal duty is enshrined in the European Convention of Human Rights (ECHR).
    • The Court disagrees with the State that courts have no right to take decisions in this area. The Court has to apply directly effective provisions of treaties to which the Netherlands is party. These provisions form part of the Dutch legal order and even take precedence over deviating Dutch laws.”
• Appeal (Cassation) by the Dutch government against the 2015 Verdict, and the 2018 Appeal Verdict.
  Supreme Court of the Netherlands.
  Submission of Appeal: 9^th January 2019. Hearing at Supreme Court: 24^th May 2019
  • The Dutch Government asked for the 2015 verdict to be cassated, based on the non-legality of the decision as per reasons brought forward in the appeal court. In essence, the government claims the appeal court took a wrong decision based on legal terms that do not apply to this case.
  • 13^th September 2019: The office of the Procurator-General of the Supreme Court advises the Supreme Court to uphold the original court decision.
  • Appeal (Cassation) Verdict, 20^th December 2019 (English Version)
    There is no ground on which the District Court judgment can be appealed / cassated. The judgement therefore is valid, and the Dutch Government needs to implement it.