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Establishing a Governmental Duty of Care for Climate Change Mitigation: Will Urgenda Turn the Tide?

Published online by Cambridge University Press:  02 October 2015

Josephine van Zeben
Josephine van Zeben*
Affiliation:
Worcester College, University of Oxford, Oxford (United Kingdom). Email: josephine.vanzeben@worc.ox.ac.uk.
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Abstract

Liability for causing or failing to mitigate climate change has long been proposed as an alternative, or backstop, to lagging international cooperation. Thus far, there has been very limited success in holding governments or individuals responsible for the emission of greenhouse gases (GHGs) that are considered the primary cause of anthropogenic climate change. The recent landmark decision in Urgenda Foundation v. Government of the Netherlands (Ministry of Infrastructure and the Environment) breaks with this tradition. In June 2015, the Dutch District Court (The Hague) held that the current climate policies of the government are not sufficiently ambitious for it to fulfil its duty of care towards Dutch society. The judgment, and the accompanying order for the government to adopt stricter GHG reduction policies, raises important questions about the future of climate change liability litigation, the separation of powers between the judiciary and the legislature, and the effect of litigation on international climate change negotiation and cooperation.

Keywords

MitigationLiabilityInternational climate policyInjunctive reliefSeparation of powersClimate change litigation
Type
Articles
Information
Transnational Environmental Law , Volume 4 , Issue 2 , October 2015 , pp. 339 - 357
Copyright
© Cambridge University Press 2015 

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Footnotes

I thank Elena Kosolapova, Pauline Phoa, Donal Nolan and two anonymous reviewers for thoughtful comments and suggestions, and Petra Weingerl for invaluable editorial assistance. The usual disclaimer applies.

References

1 Together with the publication of the report ‘Concern for Tomorrow’ (Netherlands Institute of Public Health and Environmental Protection), the Queen’s 1988 Christmas speech represents a watershed moment for sustainable environmental policy in the Netherlands. Queen Beatrix observed that ‘the earth is slowly dying and the inconceivable – the end of life itself – is becoming conceivable’. Her speech, devoted almost entirely to problems of environmental deterioration, was in open disagreement with her earlier address to Parliament in Sept. 1988. The latter speech, written by the Dutch Council of Ministers, stated that recently ‘the country has become cleaner. This applies in particular to water and air’: Tellegen, E., ‘The Dutch National Environmental Policy Plan’ (1989) 4(4) The Netherlands Journal of Housing and Environmental Research, pp. 337–345CrossRefGoogle Scholar, at 337. For a full overview (and partial history) of Dutch environmental law and policy, see Broek, J. van den, Bundeling van Omgevingsrecht (Wolters Kluwer, 2012)Google Scholar. On the first Dutch National Environmental Policy Plan, see Tellegen, ibid.

2 Hey, C., ‘EU Environmental Policies: A Short History of the Policy Strategies’, in S. Scheuer (ed.), EU Environmental Policy Handbook: A Critical Analysis of EU Environmental Legislation (European Environmental Bureau, 2006), pp. 17–30Google Scholar, at 20.

3 Pettenger, M.E. (ed.), The Social Construction of Climate Change: Power, Knowledge, Norms, Discourses (Ashgate, 2007), p. 55Google Scholar.

4 Gulbrandsen, L.H. & Skjærseth, J.B., Implementing the EU 2020 Climate and Energy Package in the Netherlands: Mixed Instruments, Mixed Results (Fridtjof Nansen Institute, 2014), pp. 15Google Scholar, 31.

5 Jans, J.H. et al., ‘“Gold Plating” of European Environmental Measures?’ (2009) (6)4Journal for European Environmental and Planning Law, pp. 417–435CrossRefGoogle Scholar, at 419. The Dutch ban on ‘gold plating’ does not only prevent ambitious environmental action by the Dutch government but can even result in the downgrading of pre-existing Dutch environmental laws that go beyond European requirements: Jans et al., ibid., at p. 427.

6 Stichting Urgenda v. Government of the Netherlands (Ministry of Infrastructure and the Environment), ECLI:NL:RBDHA:2015:7145, Rechtbank Den Haag, C/09/456689/HA ZA 13-1396 (Urgenda), para. 4.83. An official English translation of the judgment is not yet available. The discussion of the judgment is based on the original judgment as read in Dutch by the author of this piece. Any translations (unless specified otherwise) are unofficial and undertaken by the author.

7 See Decision 406/2009/EC on the Effort of Member States to Reduce Their Greenhouse Gas Emissions to Meet the Community’s Greenhouse Gas Emission Reduction Commitments up to 2020 [2009] OJ L 140/136 (EU Effort Sharing Decision).

8 Urgenda, n. 6 above, at para. 4.84.

9 Ibid., at para. 5.1.

10 The term ‘climate change litigation’ (CCL) covers many different types of action, both civil and criminal. The focus of this article will be exclusively on action brought against the government, and to some extent individuals, for failure to reduce GHG emissions and any liability for climate change resulting from these emissions. Peel and Osofsky provide one of the most recent and comprehensive overviews of this body of cases and how it may be mapped: Peel, J. & Osofsky, H., Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge University Press, 2015)CrossRefGoogle Scholar generally, and specifically at p. 8. For an exhaustive overview of climate change litigation, see resources provided by the Sabin Center for Climate Change Law, Columbia University, New York, NY (US), available at: http://web.law.columbia.edu/climate-change/resources.

11 ‘Urgenda vraagt rechter “moedig vonnis” te wijzen in klimaatzaak’, 14 Apr. 2015, available at: http://www.trouw.nl/tr/nl/13110/Klimaatverandering/article/detail/3954211/2015/04/14/Urgenda-vraagt-rechter-moedig-vonnis-te-wijzen-in-klimaatzaak.dhtml.

12 ‘Netherlands Ordered to Cut Greenhouse Gas Emissions’, BBC News, 24 June 2015, available at: http://www.bbc.co.uk/news/world-europe-33253772.

13 Some have suggested that the current judgment has ‘raised the bar’ for other governments: see, e.g., Purnhagen, K., ‘Climate Law: Dutch Decision Raises Bar’ (2015) (523)7561Nature, p. 410CrossRefGoogle ScholarPubMed.

14 Peel & Osofsky, n. 10 above (on the US and the UK); Hilson, C.J., ‘Climate Change Litigation: An Explanatory Approach (Or Bringing Grievance Back In)’, in F. Fracchia & M. Occhiena (eds), Climate Change: la riposta del diritto (Editoriale Scientifica, 2010), pp. 421–436Google Scholar (on the UK); E. Kosolapova, Interstate Liability for Climate Change-related Damage (Eleven International, 2013) (on domestic litigation on interstate/international liability).

15 See also Peeters, M., ‘Europees Klimaatrecht en Nationale Beleidsruimte’ (2014) (89)41Nederlands Juristenblad, pp. 2918–2925Google Scholar, at 2924.

16 Urgenda Mission Statement, available at: http://www.urgenda.nl/over-urgenda/missie.

17 It is worth noting that whereas NGOs have traditionally played an important part in the public debate, public interest litigation such as that pursued by Urgenda is a relatively novel development in the Netherlands: L. Enneking & E. de Jong, ‘Regulering van Onzekere Risico’s via Public Interest Litigation’ (2014) 23 Nederlands Juristenblad, pp. 1542–51, at 1551.

18 Letter to Dutch Government, available at: http://www.wijwillenactie.nl/wp-content/uploads/2012/11/121112-ondertekend-aan-Staat-der-NL.pdf.

19 Letter No. IenM/BSK-20 12/244002, 11 Dec. 2012, available at: http://www.urgenda.nl/documents/BriefReactievandeStaatlp-i-m-0000002872.pdf.

20 The complete Summons (in Dutch) is available at: http://www.urgenda.nl/documents/DagvaardingUrgendaKlimaatzaak19-11-13.pdf. Both Urgenda and the Dutch government provided lengthy written and oral pleadings to the District Court (The Hague): Response to Summons by the Dutch Government (2 Apr. 2014) available at: http://gallery.mailchimp.com/91ffff7bfd16e26db7bee63af/files/Conclusie_van_antwoord.pdf; and (19 Feb. 2015), available at: http://www.urgenda.nl/documents/20150119-ConclvanDupliek-UrgendaKlimaatzaak.pdf; Written Reply by Urgenda (10 Sept. 2014), available at: http://www.urgenda.nl/documents/Conclusie-van-Repliek-10-09-2014.pdf; Oral Pleadings by Dutch Government (14 Apr. 2015), available at: http://www.urgenda.nl/documents/Staat20150414pleitnotaeindversie.pdf; and Oral Pleadings by Urgenda (14 Apr. 2015), available at: http://www.urgenda.nl/documents/PleitnotaVanDenBergUrgendaKlimaatzaak.pdf.

21 Para. 45 of Urgenda’s unofficial English translation of its Summons, available at: http://www.urgenda.nl/documents/FINAL-DRAFT-Translation-Summons-in-case-Urgenda-v-Dutch-State-v.25.06.10.pdf.

22 Urgenda, n. 6 above, at para. 3.1.

23 There are several legal translations available for the order to act issued by the Dutch court (including the mandatory order, injunctive relief, and specific performance). The possibility to request such an order is set out in s. 296 of Book 3 of the Dutch Civil Code.

24 Urgenda, n. 6 above, at para. 3.1(7). In addition to requesting an order that would force the Dutch government to reduce emissions, Urgenda requested an order that would force the government to provide information about emissions reduction policies to the Dutch public via newspapers and the governmental website: ibid., at para. 3.1(8) and (9).

25 Ibid., at para. 3.1. Specifically, Urgenda requested the Court to declare that: (1) as a result of the emission of GHGs, the earth’s atmosphere is warming. According to the best scientific knowledge, this will result in dangerous climate change, unless we urgently and significantly reduce these emissions; (2) ‘dangerous anthropogenic climate change’ means an increase in average temperature of 2°C or more, compared with pre-industrial times. This will be a significant threat to large groups of people and human rights globally; (3) the Netherlands has one of the highest per capita emissions rates in the world; (4) the collective emissions of the Netherlands are ‘onrechtmatig’ (illegitimate); (5) the Dutch government is liable for Dutch collective emissions; (6) the Dutch government will be acting illegally if it has not reduced total Dutch GHG emissions by 40%, or at least 25%, compared with 1990, by 2020 [primary claim]; the Dutch government will be acting illegally if it has not reduced total Dutch GHG emissions by at least 40% compared with 1990 by 2030 [subsidiary/alternate claim].

26 Ibid., at para. 3.1(7) primary claim.

27 Ibid., at para. 3.1(7) secondary/alternate claim.

28 Ibid., at para. 4.105.

29 Ibid., at paras 2.34–2.70.

30 Ibid., at para. 4.12.

31 Ibid., at para. 4.15.

32 Decision 1/CP.16 of the Conference of the Parties, as agreed on 11 Dec. 2010. Full text available at: http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf#page=2.

33 Urgenda, n. 6 above, at para. 4.31.

34 Ibid., at para. 5.1.

35 Ibid., at para 5.1. The Court also ordered the Dutch government to pay Urgenda’s costs, but rejected as invalid Urgenda’s claim for an order to inform. It held that the order had no basis in law and, given that it is not yet clear what action the order to act will take, that it would not be reasonable to force the Dutch government to provide any information to the public (para. 4.107). The existing Dutch reduction commitments are based on its EU obligations, which in turn are based on its international commitments under the systems established by the United Nations Framework Convention on Climate Change (UNFCCC) (New York, NY (US), 9 May 1992, in force 21 Mar. 1994, available at: http://unfccc.int) and its Kyoto Protocol (Kyoto (Japan), 11 Dec. 1997, in force 16 Feb. 2005, available at: http://unfccc.int/kyoto_protocol/items/2830.php).

36 Ibid., at paras 4.85–4.86.

37 See in detail Section 3 below.

38 Peel & Osofsky (n. 10 above, at p. 308) observe that whereas standing is a real issue in the US, it has been much less problematic in Australia, where practical concerns, such as the costs of litigation, provide a different type of barrier to litigation.

39 For more detailed discussion of the relationship between the political question doctrine, displacement (the judiciary infringing the competence of the legislature or executive) and standing, see Peel & Osofsky, n. 10 above, at p. 269–78. Generally on the political question doctrine and environmental litigation, see Kosolapova, n. 14 above, at pp. 89–90, 105–9, 117–20. For US cases on standing, see primarily Massachusetts v. Environmental Protection Agency (EPA) 549 U.S. 497 (2007) (state petitioners) and American Electric Power Co. (AEP) v. Connecticut, 564 U.S. __ (2011) (on non-state petitioners). See also Gersh Korsinsky v. US EPA, 2005 U.S. Dist. Lexis 21778; Korsinsky v. EPA, 05 Civ. 859 (nrb), and Connecticut v. AEP, 406 F. Supp. 2d 265; Connecticut v. AEP, 2005 U.S. Dist. Lexis 19964, 04 Civ. 5669 (lap), 04 Civ. 5670 (lap) (the latter found the plaintiffs’ question to be political and non-justiciable).

40 Urgenda, n. 6 above, at para. 4.94. See Section 4 below for more detail.

41 See also Peel & Osofsky, n. 10 above, at p. 271 on standing requirements under Art III. See Massachusetts v. EPA and AEP v. Connecticut, n. 39 above, on the distinction between state and non-state applicants.

42 S. 303 of Book 3 of the Dutch Civil Code.

43 S. 305a of Book 3 of the Dutch Civil Code. Additionally, Urgenda needed to show that reasonable care had been taken to resolve the issues through cooperative engagement with the defendant: s. 305a(2) of Book 3 of the Dutch Civil Code. Urgenda had fulfilled this requirement through its correspondence with the Dutch government: Letter to Dutch Government, n. 18 above.

44 Urgenda, n. 6 above, at para. 4.5.

45 Specifically, ss. 303–305a of Book 3 of the Dutch Civil Code.

46 Urgenda, n. 6 above, at para. 4.6.

47 Art. 2 of Statutes of Urgenda, as quoted by the Court: ibid., at para. 4.7. Although Urgenda’s statutes are not publicly available, very similar information is available in its mission statement on its website, available at: http://www.urgenda.nl/en.

48 Urgenda, n. 6 above, at paras 4.7–4.10.

49 Particularly with respect to Arts 2 and 8 ECHR, as will be discussed in detail in Section 3 below.

50 Rome (Italy), 4 Nov. 1950, in force 3 Sept. 1953, available at: http://conventions.coe.int. In the UK, the ECHR may provide additional grounds for standing under nuisance. This question was first raised in ECtHR, 1 Jul. 1998, Khatun and 180 Others v. United Kingdom, appl. no. 38387/97 (unreported), and has since been discussed in Nora McKenna & Others v. British Aluminium Ltd [2002] Env LR 30.

51 Urgenda, n. 6 above, at paras 4.42 and 4.45. Cf. K. Purnhagen, ‘Towards a Regime of Emissions Litigation Based on Science’, 10 Wageningen Working Papers in Law and Governance 10/2015, Law and Governance Group, 18 July 2015, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2632858 (describing the decision of the Dutch District Court as acknowledging ‘an individual right to emission reduction enforceable in courts’: ibid., at p. 2. The current article does not subscribe to this reading of the judgment since Urgenda’s standing was upheld as being representative of a collective interest rather than an individual interest).

52 Peel & Osofsky, n. 10 above, at p. 8.

53 See the state/non-state distinction made by the US Supreme Court with respect to standing, n. 39 above.

54 See also Markell, D. & Ruhl, J.B., ‘An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual?’ (2012) 64 Florida Law Review, pp. 15–86Google Scholar, at 15 (on the tug of war between environmental groups and industry).

55 The latter two categorizations are introduced by Hilson, n. 14 above.

56 See also resources provided by the Sabin Center for Climate Change Law, n. 10 above.

57 The definition of duty of care as a concept is not uncontroversial. Several criteria (reasonable foresight of harm, sufficient proximity and whether it is fair, just and reasonable to impose a duty) are shared between jurisdictions, but the application of these criteria can differ. See, e.g., Principles of European Tort Law, Art. 4:102 (the text can be found on the website of the European Group on Tort Law, available at: http://civil.udg.edu/php/biblioteca/items/283/PETL.pdf). More generally, on the definition of duty of care and accompanying difficulties see Nolan, D., ‘Deconstructing the Duty of Care’ (2013) 129 The Law Quarterly Review, pp. 559–588Google Scholar, at 561–3.

58 Urgenda, n. 6 above, at para. 4.63.

59 How apparent is the danger? How likely is the danger to manifest itself? How serious is the danger (i.e. property damage or personal harm)? How onerous would it be to take necessary preventative measures? Hoge Raad (Dutch Supreme Court), 6 Nov. 1965, NJ 1966/136. See also Cox, R., ‘The Liability of European States for Climate Change’ (2014) 30(78) Utrecht Journal of International and European Law, pp. 125–135CrossRefGoogle Scholar, at 129.

60 Urgenda, n. 6 above, at para. 4.63.

61 Ibid., at paras 4.35–4.52. These included the following: Art. 21 of the Dutch Constitution; the international ‘no harm’ principle; Arts 2 and 8 ECHR (n. 50 above); the UNFCCC (n. 35 above) and its protocols, mainly the Kyoto Protocol (n. 35 above); Art. 191 of the Treaty on the Functioning of the EU (TFEU) (Lisbon (Portugal), 13 Dec. 2007, in force 1 Dec. 2009, available at: http://europa.eu/lisbon_treaty/full_text); the EU ETS Directive (Directive 2003/87/EC establishing a Scheme for Greenhouse Gas Emission Allowance Trading within the Community and amending Directive 96/61/EC [2009] OJ L275/32); and the EU Effort Sharing Decision (n. 7 above).

62 Urgenda, n. 6 above, at para. 4.52.

63 Ibid., at para. 4.65.

64 Ibid., at para. 4.66.

65 Rather, delayed action would be less cost-effective in the long term: ibid., at para. 4.73.

66 Ibid., at paras 4.74–4.77. The Dutch government did not contest its responsibility to take mitigation or adaptation measures, but rather questioned the required scope of the measures before 2020: ibid., para. 4.64.

67 Ibid., at para. 4.83.

68 Ibid., at paras 4.84–4.85.

69 Ibid., at para. 4.89.

70 Ibid., at paras 4.79 and 4.90. See also Massachusetts v. EPA, n. 39 above (‘While it might be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether the EPA has a duty to take steps to slow or reduce it […] A reduction in domestic emissions would slow the pace of global emissions increase, no matter what happens elsewhere’).

71 The government showed that the ordered reduction amounts to 0.04 to 0.09% of global emissions: Urgenda, n. 6 above, at para. 4.78.

72 Hoge Raad (Dutch Supreme Court), 23 Sept. 1988, NJ 1989/743.

73 N. 35 above.

74 Urgenda, n. 6 above, at para. 4.79.

75 E.g., Massachusetts v. EPA (n. 39 above) is about interpreting the statutory duty of the US EPA to regulate air pollutants.

76 See, generally, (2009) 20(2) King’s Law Journal, Special Issue on European Tort Law, specifically Oliphant, K., ‘Introduction: European Tort Law’, ibid., pp. 189–202; H.-B. Schäfer & F. Mueller-Langer, ‘Strict Liability versus Negligence’, in M. Faure (ed.), Tort Law and Economics (Edward Elgar, 2009), pp. 3–45Google Scholar. See also Magnus, U., ‘Why is US Tort Law So Different?’ (2010) 1(1) Journal of European Tort Law, pp. 102–124CrossRefGoogle Scholar.

77 Together with Australia, these two jurisdictions have generated the majority of climate change jurisprudence thus far. More importantly, these jurisdictions hold comparable, but not identical international and, for the UK, EU mitigation commitments. See the US and the UK commitments anchored in the Cancún Agreements at the UN Climate Change Conference in Cancún in 2010, available at: http://unfccc.int/meetings/cancun_nov_2010/items/6005.php. The US did not sign or ratify the Kyoto Protocol (see ‘Status of Ratification of the Kyoto Protocol’, available at: http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php). The UK, however, is bound by the second commitment period under the Kyoto Protocol (n. 35 above).

78 See Price v. United States, 174 U.S. 373 (19 S. Ct. 765, 43 L. Ed. 1011). Federal sovereign immunity has been waived in only very few cases, e.g., under the Federal Tort Claims Act (Federal Employees).

79 Art. I, § 27 of the Constitution of the Commonwealth of Pennsylvania; Robinson Township v. Commonwealth of Pennsylvania, 83 A.3d 901, (Pa. 2013).

80 Art. 21 of the Dutch Constitution: ‘It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment’ (English translation available at: http://www.government.nl/documents-and-publications/regulations/2012/10/18/the-constitution-of-the-kingdom-of-the-netherlands-2008.html).

81 42 U.S.C., Ch. 85. See R. McKinstry, Jr., ‘Potential Implications for the United States of the Urgenda Foundation v Netherlands Decision Holding that the UNFCCC and International Decisions Required Developed Nations to Reduce Emissions by 25% from 1990 Levels by 2020’, 17 July 2015, available at: http://ssrn.com/abstract=2632726.

82 CAA, ibid., §§ 7604, 7607.

83 The executive branch has constitutional authority to make treaties with the consent of the Senate: US Constitution, Art. 2 § 2 cl. 2, § 3.

84 See, e.g., Wexler, L., ‘Take the Long Way Home: Sub-Federal Integration of Unratified and Non-Self-Executing Treaty Law’ (2006) 28(1) Michigan Journal of International Law, pp. 1–48Google Scholar, at 16–20.

85 The authority of foreign decisions in American courts has traditionally been limited and federal law would trump state law, as well as state constitutions: see Goulder, L.H. & Stavins, R.N., ‘Interactions between State and Federal Climate Change Policies’, in D. Fullerton & C. Wolfram (eds), The Design and Implementation of U.S. Climate Policy (University of Chicago Press, 2012), pp. 109–121CrossRefGoogle Scholar.

86 McKinstry (n. 81 above) submits that Urgenda provides authority for the interpretation of national laws in light of international obligations. This argument is problematic for several reasons. Firstly, the US did not ratify the Kyoto Protocol, which restricts its obligations. Secondly, this is not in fact the core holding in Urgenda; while international and national mitigation obligations were taken into account by the Court, this interpretation would be far less powerful without the tort foundation of s. 6:162 Dutch Civil Code. The importance of Urgenda as providing an interpretative obligation must be considered carefully and in light of these two factors.

87 The displacement doctrine, discussed in Section 4 below, also has considerable bearing on this issue.

88 See Crown Proceedings Act 1947. See, generally, Booth, C. & Squires, D., The Negligence Liability of Public Authorities (Oxford University Press, 2006)Google Scholar; Fairgrieve, D., State Liability in Tort: A Comparative Law Study (Oxford University Press, 2003)CrossRefGoogle Scholar.

89 For other jurisdictions, see also the comparable judgment in Environmental Defense Society v. Auckland Regional Council and Contact Energy Ltd [2002] 11 NZRMA 492 (New Zealand Environmental Court) (in which the scientific evidence on the link between emissions and climate change damage was also accepted but the efficacy of imposing measures was questioned, on which basis the appeal was rejected).

90 See, e.g., RWE Npower Renewables v. East Lindsey DC (Planning Inspectorate Decision, 2011); Veolia v. Shropshire CC (Planning Inspectorate Decision, 2012); Pugh v. Secretary of State for Communities and Local Government and Others [2015] EWHC 3 (Admin) (UK); North Cote Farms Ltd v. Secretary of State for Communities and Local Government and Another [2015] EWHC 292 (Admin) (UK). The US courts are more sympathetic to the Dutch approach and are also quoted in Urgenda’s pleadings, n. 20 above.

91 Bell, S., McGillivray, D. & Pedersen, O., Environmental Law, 8th edn (Oxford University Press, 2013), p. 371Google Scholar.

92 Cambridge Water Co. v. Eastern Counties Leather plc [1994] 2 AC 264, on foreseeability and the state of scientific knowledge.

93 Fairchild v. Glenhaven Funeral Services Ltd [2002] 3 WLR 89.

94 Ibid.; see also McGhee v. National Coal Board [1973] 1 WLR 1 (McGhee), at p. 9. Nevertheless, the issue of the foreseeability of the harm remains: Steele, J. & Wikely, N., ‘Dust on the Streets and Liability for Environmental Cancers’ (1997) 60(2) The Modern Law Review, pp. 265–275CrossRefGoogle Scholar, at 265.

95 McGhee, ibid., at p. 6 (‘where a person has, by breach of duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause’) as quoted in Deakin, S., Johnston, A. & Markesinis, B., Markesinis and Deakin’s Tort Law (Oxford University Press, 2012), p. 225CrossRefGoogle Scholar. The holding in McGhee on this point has not been without controversy – see Deakin, Johnston & Markesinis, ibid., at pp. 225–8.

96 Urgenda, n. 6 above, at para. 4.90.

97 Calvin, J., Institutes of the Christian Religion (translated by H. Beveridge) (Calvin Translation Society, 1845)Google Scholar. Later also Montesquieu, , Spirit of the Laws (translated by A.M. Cohler, B.C. Miller & H.S. Stone) (Cambridge University Press, 1989)Google Scholar.

98 These conditions vary from jurisdiction to jurisdiction: on the UK, see M. Fordham, Judicial Review Handbook (Hart, 2012); on the US, see Hall, K.L., Judicial Review and Judicial Power in the Supreme Court: The Supreme Court in American Society (Routledge, 2014)Google Scholar.

99 Urgenda, n. 6 above, at para. 4.95.

100 Ibid., at para. 4.96.

101 Ibid., at para. 4.100.

102 On the specific issue of the democratic mandate of the judiciary, the Court underlined the legislative foundations of its position, which themselves were the result of a democratic process: ibid., at para. 4.97.

103 On the Urgenda case, see Hartlief, T., ‘Een Rechtszaak Uit Liefde’ (2013) 88(42) Nederlands Juristenblad, p. 2911Google Scholar; Spier, J., ‘Injunctive Relief: Opportunities and Challenges: Thoughts about a Potentially Promising Legal Vehicle to Stem the Tide’, in J. Spier & U. Magnus (eds), Climate Change Remedies: Injunctive Relief and Criminal Law Responses (Eleven International, 2014), pp. 1–120CrossRefGoogle Scholar; Drion, C., ‘Van een Duty to Care naar een Duty of Care’ (2007) 82(45–46) Nederlands Juristenblad, p. 2857Google Scholar.

104 Their rich treatment of the issue also discusses the question whether judicial activism must be approached differently when it is prospective (as is the case in Urgenda) rather than retrospective: Enneking & de Jong, n. 17 above, particularly pp. 1550–1.

105 Cf. with the US where the adversarial system allows for more fact-finding by judges: Kagan, R.A., Adversarial Legalism: The American Way of Law (Harvard University Press, 2009)Google Scholar.

106 In the EU, this abstract estimation of risk by the courts is likely to result in a high(er) level of care as a result of the influence of the precautionary principle: see Art. 191(2) TFEU, n. 61 above: ‘Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay’.

107 Enneking & de Jong, n. 17 above, at pp. 1548–9.

108 Although not considered a barrier to rule on the Dutch component of the global issue by the District Court, see Urgenda, n. 6 above, at paras 4.91–4.92.

109 Hoge Raad (Dutch Supreme Court), 17 Dec. 2010, NJ 2012/155 (Wilnis), and Hoge Raad (Dutch Supreme Court), 30 Nov. 2012, TBR 2013/72 (Dordtse Paalrot).

110 Urgenda, n. 6 above, at para. 4.101.

111 A minimum of a 25% reduction compared with 1990 by 2020: ibid., at para. 4.103.

112 AEP v. Connecticut, n. 39 above.

113 Peel & Osofsky, n. 10 above, at p. 273.

114 Ibid. See specifically AEP v. Connecticut, n. 39 above. See also Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012).

115 The US Supreme Court has also used the separation of powers doctrine to restrict the power of the executive in interpreting statutory powers: see Utility Air Regulatory Group v. EPA, 134 S.Ct. 2427, 2446.

116 N. 35 above.

117 Turp v. Canada (Attorney General) [2012] FC 893, T-110-12 (Federal Court of Canada).

118 Friends of the Earth Canada v. The Governor in Council and Others [2008] FC 1183 (Federal Court of Canada).

119 In addition, the bulk of Australian litigation has taken the shape of procedural claims: see, e.g., Re Australian Conservation Foundation v. Latrobe City Council [2004] 140 LGERA 100 (Victoria Civil and Administrative Tribunal, Australia). See also Kosolapova, n. 14 above, at pp. 89–105.

120 See, e.g., Environment-People-Law v. Ministry of Environmental Protection [2008] (Commercial Court of Lviv, Ukraine).

121 Dicey, A.V., Introduction to the Study of the Law of the Constitution (Macmillan, 1915)Google Scholar.

122 While parliamentary sovereignty has survived the UK’s accession to the EU, certain inroads have been made: see, e.g., Case C-213/89, The Queen v. Secretary of State for Transport, ex parte Factortame [1990] ECR I-02433, ECLI:EU:C:1990:257 (Factortame). This sovereignty does not extend to the executive, whose actions may be, and frequently are, reviewed.

123 E.g., Climate Change Act 2008, c. 27, available at: http://www.legislation.gov.uk/ukpga/2008/27/contents.

124 See Hilson, n. 14 above.

125 Peel & Osofsky, n. 10 above, at p. 106. This is particularly true for Australia and the US.

126 N. 39 above. For current CAA cases see, e.g., A. de Vogue, ‘Supreme Court: EPA Unreasonably Interpreted the Clean Air Act’, CNN Politics, 29 June 2015, available at: http://edition.cnn.com/2015/06/29/politics/supreme-court-epa-emissions.

127 On the 2015 Paris Climate Conference, see the UN website at: http://newsroom.unfccc.int/paris.

128 At the time of writing (6 Aug. 2015), an appeal has not been confirmed.

129 More information is available at: http://www.klimaatzaak.eu/en.

130 Urgenda, n. 6 above, at para. 4.80. The Dutch government argued specifically that it would not be allowed to increase reductions in EU ETS sectors because of EU regulation. The Court disagreed, as the EU goals are minimum levels rather than reduction ceilings. In its oral pleadings, the government admitted that it would be legally and factually possible to go beyond EU reduction goals.

131 Ibid., at para. 4.81.

132 See also the European Commission’s website at: http://ec.europa.eu/clima/news/articles/news_2015022501_en.htm.

133 For a detailed breakdown of this plan, see Communication from the Commission to the European Parliament and the Council, ‘The Paris Protocol – A Blueprint for Tackling Global Climate Change Beyond 2020’ [2009] COM(2015) 81 final/2, available at: http://ec.europa.eu/clima/policies/international/paris_protocol/docs/com_2015_81_en.pdf.

134 Art. 4(2) of the Treaty on European Union (TEU), Lisbon (Portugal), 13 Dec. 2007, in force 1 Dec. 2009, available at: http://europa.eu/lisbon_treaty/full_text.