While courts in the US dither and dawdle over landmark suits brought by climate activists, such as the long delayed Juliana Vs. US, which is still pending in federal court in Oregon, courts in other countries are grappling with similar issues.
On December 20, 2019, the Supreme Court of the Netherlands became the first to order the government of a nation to cut greenhouse gas emissions in order to address the ongoing threat of climate change. It is only appropriate that the Netherlands should lead the way since a large part of that nation is located on land that is below sea level and would be flooded were it not for a complex systems of dams, dikes, and pumps.
The order from the country’s highest court mandates the government to cut greenhouse gas emissions by 25% below 1990 levels and do it by the end of next year, according to a report by The New York Times. Kees Streefkerk, chief justice of the Supreme Court of the Netherlands, said in the ruling that “the lives, well being, and living circumstances of many people around the world, including in the Netherlands, are being threatened. Those consequences are happening already.”
The suit was initiated in 2013 by environmental activist group Urgenda — a name that is an amalgam of “urgent” and “agenda” — together with almost 900 other plaintiffs. It has been wending its way through the Dutch courts ever since. In 2015, the Hague District Court ordered a reduction in emissions of 25% by 2020. The plaintiffs had been seeking a 40% reduction. That court cast its decision in human rights terms, stating the government owes its citizens a duty of care to protect them from harm.
The plaintiffs in Juliana Vs US are making a similar claim based on the words of the US Constitution. The Hague District Court found the likelihood of harm to current and future generations was so great and concrete that “the state must make an adequate contribution, greater than its current contribution, to prevent hazardous climate change.”
The Dutch government appealed that decision and in October, 2018, the Hague Court of Appeal ruled in favor of Urgenda, saying the government was in violation of its obligations under the European Convention on Human Rights. It ruled that “a reduction obligation of at least 25 percent by end-2020, as ordered by the district court, is in line with the State’s duty of care.”
The government then appealed that ruling to the Supreme Court for the Netherlands. In September, the procurator general and advocate general, who advise the court, published an opinion urging the justices to reject the government’s arguments.
In this week’s ruling, Justice Streefkerk rejected an argument by the government that cutting emissions would have a negligible effect on the world’s climate. The judge brushed that argument aside saying, “Every country is responsible for its share.”
The ruling could force some coal-fired generating stations to close in the Netherlands — even those that were built as recently as 2016 — as well as a range of other activities that add carbon emissions to the atmosphere over the country.
The Urgenda case has inspired similar suits against governments in Belgium, France, Ireland, Germany, New Zealand, Britain, Switzerland and Norway, as well as the European Union, and may have played a role in the landmark Juliana Vs. US litigation. The fate of climate litigation in the US will ultimately be up to the Supreme Court. In 2007, it upheld the attempt by the state of Massachusetts to regulate carbon emissions pursuant to the Clean Air Act, but the composition of the court has changed significantly in the past 12 years.
There is every reason to believe the newest members of that august body will be far more hostile to actions based on government regulations, which are anathema to an entire generation of lawyers suckled by the Federalist Society, a Koch Brothers front group that preaches all regulations are bad. If Trump stays in office, there could be even more right wing activist judges on the Supreme Court — which is an excellent reason not to vote for him if he is the Republican candidate for president in 2020.