Supreme Court of the Netherlands Upholds Ruling Requiring Dutch State to Reduce Greenhouse Gas Emissions

As reported in our Winter 2018 Climate Report, in 2015, the Hague District Court found that the Dutch State failed to fulfil its duty of care by not pursuing a more ambitious reduction of greenhouse gas ("GHG") emissions in the Netherlands. In 2018, the Hague Court of Appeal upheld the Hague District Court's 2015 first-instance ruling. The Court of Appeal found that the Dutch State's measures were too uncertain and insufficient to reach the 25% GHG emission reduction target necessary to prevent climate change by 2020, basing its ruling on Articles 2 (right to life) and 8 (the right to respect for private and family life) of the European Convention on Human Rights ("ECHR"), which it held to have direct effect.

On December 20, 2019, the Supreme Court of the Netherlands upheld the Court of Appeal's ruling in which it had ordered the Dutch State to reduce, by the end of 2020, GHG emissions by at least 25% compared to 1990. The Supreme Court ruled that the threat of climate change constitutes a real and immediate risk for the life and the well-being of the Dutch population. Pursuant to Articles 2 and 8 of the ECHR, the Dutch State is therefore obliged to take appropriate measures in order to avert such climate change.

According to the Supreme Court, there is a high degree of consensus as to the need for developed countries to reduce their GHG emissions by 25%–40% by 2020, and this consensus must be taken into account when interpreting and applying Articles 2 and 8 of the ECHR. The Supreme Court held that the court order to reduce GHG emissions by at least 25% did not encroach on the powers of the legislative and executive branches, as the manner of implementation of the order is left to their discretion.

Furthermore, the Supreme Court found that such an order is in accordance with the judiciary's mandate to offer legal protection by deciding whether the acts of government and parliament remain within the limits of the law, including fundamental rights as enshrined in the ECHR. The Supreme Court dismissed the Dutch State's contention that, in comparison to the rest of the world, the Dutch State's own GHG emissions are relatively limited in scope and that a reduction of these would have a limited impact on a global scale. According to the Supreme Court, by this logic a state could simply avoid responsibility by pointing to other nations. In addition, it found that no single reduction, however small, is negligible, as it has a positive effect on combating climate change.

Following the Supreme Court judgment, the Dutch government notified the Dutch Parliament of its intention to comply with the judgement and to present a package of additional measures to that effect. The findings of the Supreme Court will likely be relevant for ongoing and future climate change litigation. Since the Supreme Court linked the rights to life and to respect for private and family life under the ECHR to climate change, it potentially sets the stage for climate change litigation in other jurisdictions party to the ECHR or other human rights instruments with similar provisions.

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