The National and EU Targets for Reduction of Greenhouse Gas Emissions Infringe the ECHR: The Judicial Review of General Policy Objectives

Some time ago, on 20 December 2019, the Dutch court of cassation, the Hoge Raad (Supreme Court), ruled that the target to reduce greenhouse gas emissions ¹ by at least 20% compared to those of 1990 by the end of the year 2020, set by the Netherlands government in accordance with EU minimum targets, infringes the right to life and the right to private and family life under Articles 2 and 8 of the European Convention on Human Rights. ² Even more significantly, it upheld the order of the District Court of The Hague, and sustained at the Appeals Court, that the State of the Netherlands – appearing in court as a legal person under Dutch civil law – must reduce the joint volume of annual greenhouse gas emissions, or have them reduced, by at least 25% at the end of 2020 compared to the emission level of the year 1990. This Urgenda case has by now generated a huge amount of commentary, in all its three instances, mostly positive; precisely on the legal (constitutional and EU law) considerations, however, some commentary is critical. ³ It is time to take stock and present a long overdue summary of the judgment, as well as discussing two of the most significant issues it raises in terms of European constitutional law. ⁴ The first is that ordering, by judicial means, the pursuit of a policy target and setting a time limit for its realisation, is something that few courts in the European Union and beyond have either the power or the inclination to do. In the comments below, we argue that no other judicial proceedings relating to climate (in Europe and beyond) went quite that far; we also argue that on constitutional grounds going so far is open to criticism. The second issue is the following: one can read this judgment as in effect striking down the legally binding EU minimum targets that were set by the Council and European Parliament in the EU’s ‘Climate Package’. ⁵ The comments on the Dutch judgment presented in this case note focus on the power of courts to set policy targets and to set aside legally binding EU decision-making regarding those policy targets, both on the basis of the ECHR.

The judgment

The judgment is more elaborately argued than can be reproduced in this summary. Those interested are strongly recommended to read both the summary and the full text of the judgment as published in an English version by the Hoge Raad itself. ⁶

The judgment was handed down by the civil law chamber of the Hoge Raad. Under the general tort provision of the Dutch Civil Code ⁷ (Burgerlijk Wetboek), it is possible to sue the State as a legal person under private law, for unlawful acts causing damage. Courts can order the tortfeasor to prevent damage ensuing from such unlawful acts. The Civil Code allows collective action by interest groups (Article 305a of Book 3). ⁸ Public interest litigation in the Netherlands is thus a matter of civil law, determined at highest instance by the civil chamber of the Hoge Raad. The standard for lawfulness under civil law includes directly effective provisions from human rights treaties, which have priority over any conflicting national law. ⁹

The case was brought by the Urgenda Stichting, a non-profit foundation whose statutory objective is to stimulate and accelerate transition processes towards a more sustainable society. It asserted the incompatibility of the national targets for reducing greenhouse gas emissions with a full spectrum of international climate and human rights treaties, including the ECHR. The District Court of The Hague (Rechtbank Den Haag) held that Urgenda, as a foundation, could not be considered a victim in the sense of Article 34 ECHR as it had neither a right to life nor to private or family life under the ECHR. ¹⁰ Instead, international commitments undertaken in the UN Climate Change Convention, the Kyoto Protocol and the associated Doha amendment, though not directly effective, were used to construe the meaning of relevant open standards of civil law, in particular the civil law duty of care and due diligence related to the duty to prevent damage that is likely to result from dangerous situations one has caused. ¹¹ Under international law, the state is assumed not to act contrary to any international commitments, including not-directly effective international law, which thus acquires a ‘reflex effect’ in national law. ¹²

The Court of Appeal (Gerechtshof Den Haag) upheld the dictum of the judgment at first instance, but ruled differently on the relevance of Article 34 ECHR, because Urgenda was acting to protect the interests and rights of citizens affected by the climate crisis. This allowed the Court of Appeal to take Articles 2 and 8 ECHR as the foundation for its reasoning. It relied on the positive obligations under these provisions to take protective measures when these rights are actually threatened; and it derived the concrete measures to be taken from climate science and relevant policy objectives formulated in various international climate commitments undertaken by the Netherlands, which are in themselves – as the Court of Appeal states – not directly effective international law. Thus, non-directly effective international commitments concerning policy targets were nevertheless turned into legal yardsticks.

The Hoge Raad, which as a court of cassation determines whether the Court of Appeal properly applied the law and whether, in light of the facts established at lower instance, the Court of Appeal’s opinion is comprehensible and adequately substantiated, in turn upheld the judgment of the Court of Appeal and its line of reasoning, taking special account of the state of climate science.

From the case law of the European Court of Human Rights on Articles 2 and 8 ECHR, the latter in accordance with the case law of the Strasbourg court understood as the right to protect individuals’ well-being, the Hoge Raad derived the obligation to take suitable measures if a real and immediate risk to people’s lives or welfare exists of which the State is (or should be) aware. The Hoge Raad judged this obligation to apply also when it comes to environmental hazards that threaten large groups or the population as a whole, even if the hazards will only materialise over the long term. While Articles 2 and 8 ECHR should not result in an impossible or disproportionate burden being imposed on a state, those provisions do oblige the State to take measures that are suitable to avert the imminent hazard as much as is reasonably possible. ¹³

Although neither Urgenda nor the State had relied on or discussed the scope of the right to an effective remedy under Article 13 ECHR, the Hoge Raad added this on its own authority, saying that national law must offer an effective legal remedy against an actual or imminent violation of the rights safeguarded by the ECHR. This means, according to the Hoge Raad, that the national courts must be able to provide effective legal protection, an argument that is used later on in the judgment to justify the far-reaching power to set detailed policy objectives, a power that the Hoge Raad derives from its understanding of the ECHR rights involved. ¹⁴

As to the issue of the global nature of the climate problem in relation to the obligations of individual states, the Hoge Raad took its cue from the premise on which the UN Framework Convention on Climate Change is based, viz that all parties to the Convention must take measures to prevent climate change, in accordance with their specific responsibilities and options. That entails, according to the Hoge Raad, that a country cannot escape its own share of the responsibility to take measures by arguing that, compared to the rest of the world, its own emissions are relatively limited in scope and that a reduction of its own emissions would have very little impact on a global scale. Hence, the State of the Netherlands has the obligation to reduce greenhouse gas emissions within its territory in proportion to its share of responsibility. The Hoge Raad adduced Article 47 of the Draft Articles on State Responsibility and, in this light, interpreted Articles 2 and 8 ECHR to entail an obligation for the Netherlands to do ‘its part’, given the grave risk that dangerous climate change will occur that will endanger the lives and welfare of many people in the Netherlands. ¹⁵

What ‘its part’ means concretely, is firstly a matter for politics to decide, the Hoge Raad states; but it adds

the courts can assess whether the measures taken by the State are too little in view of what is clearly the lower limit of its share in the measures to be taken worldwide against dangerous climate change. […] Under certain circumstances, there may also be such clear views, agreements and/or consensus in an international context about the distribution of measures among countries that the courts can establish what – in accordance with the widely supported view of states and international organisations, which view is also based on the insights of climate science – can in any case be regarded as the State’s minimum fair share. (para. 6.3)

This methodologically important turn in its reasoning made it possible to substantiate the positive obligations imposed on the State pursuant to Articles 2 and 8 ECHR, in terms of ‘broadly supported scientific insights and internationally accepted standards’ that courts must take into account on the basis of Article 13 ECHR. The Hoge Raad adds: ‘In determining the State’s minimum obligations, the courts must observe restraint, especially if rules or agreements are involved that are not binding in themselves. It is therefore only in clear-cut cases that the courts can rule, on the grounds referred to […], that the State has a legal obligation to take measures’ (para. 6.6).

The Hoge Raad presents a fairly elaborate résumé of the state of climate science, and then focuses on the commitments made to reduce greenhouse gases. With regard to its preferred minimum policy target of a reduction of 25%, the Hoge Raad follows the Court of Appeal’s concentration on a somewhat hidden table in the Fourth International Panel on Climate Change Assessment Report. ¹⁶ Reference to this table was sometimes made in subsequent climate conference documents (though only in terms of political desirability, never as a legal commitment). ¹⁷ The Hoge Raad points out that in later conferences there were calls to increase the reduction targets by the end of 2020 for Annex I countries (which include the EU member states) to a minimum of 25% in order not to exceed a temperature increase of 2^oC (paras. 7.2.1-7.2.4). The Hoge Raad finds it, moreover, significant that the EU at the Cancún conference was willing to increase the target from 20 to 30% provided that other parties also increased their targets; a condition that, however, was not fulfilled in practice. That the EU was at all willing to increase the minimum to 30% – though in fact it did not – the Hoge Raad takes as an indication of the international consensus on the minimum target of 25%, and as a confirmation that the 20% target is insufficient (para. 7.2.6).

The Hoge Raad next discusses the policy actually pursued by the Netherlands (paras. 7.4.1-7.5.3). It notes that until 2011 the target set for 2020 was a reduction of 30%. After 2011, this was lowered to 20% for 2020; the policy objective was to subsequently accelerate the reduction to 49% in 2030 and 95% in 2050 (the latter has – post-Urgenda – been enshrined in the Climate Act, Klimaatwet). The Hoge Raad notes that the State has not explained, however, why a reduction of just 20% in 2020 is considered responsible in an EU context(!), ¹⁸ in contrast to a reduction of 25 to 40%, which is internationally broadly supported and even considered necessary. Postponement will only necessitate more comprehensive and more expensive measures, the Hoge Raad states. ¹⁹ Moreover, postponement increases the risk of an irreversible tipping point in climate change. In light of these generally endorsed insights, the Hoge Raad finds that the State should have explained that the proposed acceleration of the reduction after 2020 was feasible and sufficiently effective to meet the targets for 2030 and 2050, and thus to keep the 2^oC target and the 1.5^oC target within reach, but it did not do so. Hence, the order to attain the minimum target of a reduction of 25% must remain in force.

In a final set of considerations, the Hoge Raad addresses the lawfulness of a court order providing a remedy directed at the legislature and executive, in terms of the relation between courts and what it calls ‘the political domain’.

In this context (paras. 8.2.2-8.2.7), it addresses the question what courts can do vis-à-vis the legislature. In earlier case law, the Hoge Raad held that courts are prohibited from ordering the State to pass an act of parliament to implement a specific international obligation or EU directive, but it allowed courts to issue a declaratory decision to the effect that the public body in question is acting unlawfully by failing to enact legislation with a particular content. ²⁰ In Urgenda, the Hoge Raad holds that courts are only prevented from issuing an order to pass legislation with a specific content, but they are allowed to order the public body in question to take general measures so as to achieve a certain goal (para 8.2.6).

The Hoge Raad furthermore considered the broader argument that it is not for courts to undertake the political assessments necessary for a decision on the reduction of greenhouse gas emissions, in terms which merit full quotation:

8.3.2. [I]n the Dutch constitutional system the power of decision-making on the reduction of greenhouse gas emissions pertains to the government and parliament. They have a wide discretion to make the required political assessments. It is up to the courts to judge whether, in availing themselves of this discretion, the government and parliament have remained within the limits of the law by which they are bound. ²¹

8.3.3 The limits referred to in 8.3.2 include those arising from the ECHR. As considered in 5.6.1 above, the Netherlands is bound by the ECHR and the Dutch courts are obliged under Articles 93 and 94 of the Dutch Constitution to apply its provisions in accordance with the interpretation of the European Court of Human Rights. The protection of human rights thus provided is an essential component of a democratic state under the rule of law.

8.3.4 This case involves an exceptional situation. After all, there is the threat of dangerous climate change and it is clear that measures are urgently needed, as the District Court and Court of Appeal have established and the State acknowledges as well (see 4.2-4.8 above). The State is obliged to do ‘its part’ in this context (see 5.7.1-5.7.9 above). Towards the residents of the Netherlands, whose interests Urgenda is defending in this case, that duty follows from Articles 2 and 8 ECHR, on the basis of which the State is obliged to protect the right to life and the right to private and family life of its residents (see 5.1-5.6.4 and 5.8-5.9.2 above). The fact that Annex I countries, including the Netherlands, will need to reduce their emissions by at least 25% by 2020 follows from the view generally held in climate science and in the international community, which view has been established by the District Court and the Court of Appeal (see 7.2.1-7.3.6 above). The policy that the State pursues since 2011 and intends to pursue in the future (see 7.4.2 above), whereby measures are postponed for a prolonged period of time, is clearly not in accordance with this, as the Court of Appeal has established. At least the State has failed to make it clear that its policy is in fact in accordance with the above (see 7.4.6 and 7.5.1 above).

8.3.5 In this case, therefore, the Court of Appeal was allowed to rule that the State is in any case obliged to achieve the aforementioned reduction of at least 25% by 2020.

Comments

The essence of the climate change problem is the failure to take adequate action to prevent the disaster the consequences of which can already be glimpsed in so many places in the world. The cause of this pending disaster is human behaviour. Curbing human behaviour through legislative and executive action is a main purpose of political government. Clearly, political government across the world has so far failed to act adequately to prevent climate disaster, and the Netherlands has failed abysmally, being among the worst in per capita emissions of greenhouse gases of the European Union’s member states. ²² What to do when government in a democracy fails to act?

Self-evidently, citizens can try all means available outside the institutions of democratic government themselves to wield influence on government policy in order to awaken it from its climate slumber. This is the road followed by Greta Thunberg with great zeal and with some success. Another path, within the institutions of democracies under the rule of law, is to have courts assess the lawfulness of government and parliament’s relative inertia. That is what has happened around the world, often with limited success, and in the Netherlands with what at first glance might seem great success.

In this case comment, we first locate the Urgenda judgment within the landscape of some of the most important recent climate case law in various countries, so as to show how uniquely far the Dutch court went by providing the remedy of a court order setting a minimum emission reduction target that as such may be considered politically desirable, but was not a binding obligation under public international law, and which replaced the one set by government and parliament; that target was moreover to be achieved within a specified time limit. Secondly, we discuss how this apparent success comes with a price in terms of constitutional democracy. In this context, we describe the political background to the lowering of emission targets, and subsequently the Court’s arguments about politics having to remain within the bounds of the law, about climate science, and the argument of exceptionality.

The third group of comments addresses the EU law aspect: under this heading, we first highlight the constitutional status of the ECHR in the Netherlands, under which it can in principle outweigh other treaty obligations, including EU law. Although the Hoge Raad is an unlikely candidate to – in effect – strike down EU law, this is what its Urgenda judgment amounts to. Finally, we make some concluding remarks based on these observations as to what the Hoge Raad, in our view, should have restricted itself to doing.

The power of courts: Urgenda within the panorama of climate judgments

Although there has been a spate of court judgments on climate change in various countries, ²³ some more successful and others less so, none have gone quite so far as the Urgenda case, mostly on the basis of arguments about the proper role of courts in terms of separation of powers.

In the US, the political question doctrine ²⁴ has been used in some cases to reject claims to undertake specific climate action through court injunctions. ²⁵ In Juliana v United States, the US District Court of Oregon had dismissed reliance on this doctrine, ²⁶ but the decision was reversed by the US Court of Appeals for the Ninth Circuit. ²⁷ Plaintiffs asserted a violation of their constitutional substantive due process cum equal protection rights to life, liberty and property, and a violation of the constitutional public trust to hold natural resources for the people and future generations, seeking declaratory relief and an injunction ordering the government to implement a plan to ‘phase out fossil fuel emissions and draw down excess atmospheric [carbon dioxide]’. The Court of Appeals found that it was beyond the power of ordinary courts ‘to order, design, supervise, or implement the plaintiffs’ requested remedial plan…. [A]ny effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches’. ²⁸ It quoted Justice Kennedy: ‘Failure of political will does not justify unconstitutional remedies’; ²⁹ and it ‘reluctantly conclude[d] that the plaintiffs’ case must be made to the political branches or to the electorate at large’. ³⁰

In France, in the Grande Synthe interim judgment of 19 November 2020, the Conseil d’État rejected the request to annul the implicit refusal by the President of the Republic, the Prime Minister and the Minister for the Ecological Transition, to take legislative measures ‘that make the climate a legally binding priority’ and to prohibit all measures increasing the emission of greenhouse gases. ³¹ It held that the failure of the executive to submit a bill to parliament touches on the relations between the constitutional powers and therefore escapes the jurisdiction of administrative courts. It did indeed hold that if international legal provisions require complementary acts before they can have effect, those provisions need to be taken into account in the interpretation of national law that effectuates them. ³² This argument is structurally similar to the ‘reflex effect’ doctrine by the Dutch courts in the Urgenda case. A big difference is that the Conseil d’Etat refers to legally binding provisions, while the Dutch courts used international sources that were not legally binding, but merely intended to express political desirabilities in determining the specific minimum target at 25%; ³³ and, moreover, the Conseil did not set new reduction targets.

The Conseil did order the government to justify the compatibility of its decisions to postpone part of the realisation of its commitments to reduce greenhouse gas emission until after 2020 and 2023 with the reduction targets that had actually been laid down in legislation (Article L. 100-4 of the Energy Code, -40% in 2030 compared to 1990 emission levels) and in EU Regulation 2018/842 (-37% compared to 2005). In its final judgment of 1 July 2021, the Conseil d’État concluded that the government had failed to show that the measures taken could achieve these targets. So this judgment merely reviews government inaction against pre-existing targets set in binding national and EU law and orders the Government to comply with them by 31 March 2022. ³⁴ It did not, as the Hoge Raad did in Urgenda, order the political branches to set different targets.

Similarly, in the ‘trial of the century’ in France, the Paris administrative court limited itself to establishing an ‘ecological tort’ under Article 1246 of the French Civil Code, by reviewing government behaviour against existing legal obligations (and found them to be infringed). ³⁵ Also the Irish Supreme Court in Friends of the Irish Environment reviewed only whether the National Mitigation Plan was ultra vires the relevant legislation it intended to implement (and found the Plan had to be quashed as falling far short of the relevant Act’s requirement to specify measures to be taken). ³⁶

The civil chamber of the francophone court of first instance of Brussels, in its ASBL Klimaatzaak, ³⁷ took a similar approach and rejected the reasoning of the Dutch Hoge Raad on essential points. It agreed with the Hoge Raad that the ECHR imposes positive obligations to take climate measures, and it ultimately found that Belgium had not taken the necessary measures under Articles 2 and 8 ECHR. However, it held that this regards only the measures to be taken, and not the result to be achieved. ³⁸ It limited its review as to results to clearly spelt out legal obligations, finding – contrary to the Hoge Raad – that under the international climate treaties Belgium had only bound itself to a reduction in 2020 with a minimum 20% (not the 25-40% the plaintiffs had argued for). Legal obligations could only be derived from the EU Climate Package and legally defined domestic targets. The Belgian court found these to be infringed by the Federal State and Regions to such an extent that this amounted to an infringement of Articles 2 and 8 ECHR. It refused to issue a judicial order imposing specific emission targets over time: if a court were to step in and exercise the discretionary power attributed to the legislature and administration this would infringe the separation of powers. ³⁹ It held that scientific expertise is not a source of law. The Belgian Court found that, with the exception of the obligations undertaken under the EU Climate Package, the international legal obligations are such that the manner in which Belgium is to attain the climate objectives is currently within the discretion of its legislative and executive bodies: ‘The amount and rate of the reduction in greenhouse gas emissions that Belgium is to follow, and the internal distribution of the efforts in this direction are and will be the result of political arbitration with which the judicial power cannot interfere. It is not for courts to determine the quantified greenhouse gas emission reduction targets for all sectors that Belgium should meet in order to “do its part” in preventing dangerous global warming’. ⁴⁰

The approach was different, but still fundamentally unlike Urgenda, in the Klima-Urteil (Climate Judgment) of 24 March 2021 of the Bundesverfassungsgericht. ⁴¹ The German Constitutional Court derives from Article 20a of the Grundgesetz a duty to protect the climate interest also for future generations, which the legislature made concrete in the targets formulated in the Federal Climate Protection Act of 2019. ⁴² These consist of the Paris Agreement objectives of limiting the global temperature increase to significantly less than 2^oC and preferably less than 1.5^oC, and its translation into a reduction target of at least 55% in 2030, with a view to climate neutrality in 2050, unless international or EU legislation requires a higher target. The Act imposed the duty on the government to issue a government decree subject to parliamentary approval in the year 2025, establishing the decreasing quantities of emissions for the periods after 2030. The Constitutional Court found that the temperature objectives and the greenhouse gas emissions targets for 2030, though not free of risks, were sufficiently compliant with constitutional requirements. The legislative provisions concerning the period after 2030, however, were found to be unconstitutional, essentially due to their imprecision, in disregard of the constitutional duty to protect against a disproportionate future infringement of the rights to life and bodily integrity (Article 2(2), first sentence Grundgesetz). The protection of the climate requires far-reaching measures, and this requires earlier legislation prior to 2025 providing more precise guidance as to the emission limits over time, and as to how these will be set (para. 258). Instead of the court dictating targets and limits, as was done in Urgenda, the German Court decided that the relevant legislative provisions remained applicable on condition that they are replaced by legislation that lives up to the constitutional requirements prior to 2023. ⁴³

The price of Urgenda in terms of constitutional democracy

Political background

In assessing the question whether it should be in the power of courts, ordinary or constitutional, to do what was done in Urgenda, it is useful to be aware of the specific political background to the Dutch government’s decision of 2011 to lower the target for emissions reductions for 2020 from 30% to 20%. Policy targets in the context of global issues are seldom set without taking into account political, social, fiscal, and economic constraints. In 2011, Europe was in the midst of the Eurozone debt crisis. This was combined with a situation of considerable political instability at the national level. The collapse of the centre-left majority coalition of the Christian-Democrats with the Social-Democrats had led to interim elections in 2010, which in turn led to a centre-right minority coalition of the Christian-Democrats and conservative Liberals, with the external support of the islamophobic Freedom Party of Geert Wilders. Austerity as the way out of a recession was a main political economic goal of the government – a view widely shared beyond the perimeters of the governing coalition. Those were the times that the Netherlands, ‘Germany’s faithful squire in preaching the orthodoxy of fiscal rigour’, made no concessions for those who strayed from austerity policies. It was the dawn of the crisis and The Hague felt it was ‘a full member of the Euroland elite’. This policy was not only for export to Greece and the other ‘Club Med’ member states; austerity was preached also domestically as a medicine to cure all ailments and conditions. ⁴⁴ Against this background, the previously more ambitious climate targets were lowered to the 20% that had been agreed as the minimum in the EU context. This had broad support in parliament. It was a matter of not giving the climate crisis a greater fiscal priority over other public interests, among which prominently the cost of education, health care, social security, and similar costly public sectors, or a few years later, the international commitments to increase defence spending caused by the threat to the (Eastern and other) EU member states emanating from the occupation of the Crimea and the war in the Donbas. ⁴⁵

I dare to say that the political decision of 2011 to lower the emission reduction targets was as regrettable from the perspective of preventing a climate disaster, as it was democratically legitimate. Is the court intervention in Urgenda equally – or indeed more – legitimate?

The justification of courts determining policy objectives

In justifying its determination of the emission reduction targets, and their timing, the Hoge Raad relies as both starting point and endpoint on the simple reason that the law provides the legal boundaries within which democracies must operate in a state under the rule of law (paras. 8.3.2 ff, cited above). This attempt at depoliticisation ⁴⁶ is begging the question.

It is self-evident that the law is not politically neutral. Determining the meaning of the law is therefore an inherently political activity, as Montesquieu correctly assumed. ⁴⁷ In a case like Urgenda, the political nature of judicial activity is evident also in the sense that it concerns a highly controversial issue in political society. The Hoge Raad correctly states that the ‘protection of human rights provided [by courts] is an essential component of a democratic state under the rule of law’, but this statement needs to be complemented by another statement: as long as the rule of law claims to be democratic, respect of democracy by courts is crucial for any country under the rule of law. Just as legislatures and executives must act within the bounds of the law, the judicial power of courts must remain within the bounds of democracy.

Merely saying that the other political branches must remain within the bounds of the law obscures the issue in terms of decision-making that is core to the legitimacy of judicial pronouncements: saying that a body must act lawfully does not in itself decide who is to determine what is lawful, nor who is to turn what is politically desirable into law. The question of who should ultimately take political decisions, within the limits of their respective powers, is, moreover, not exhausted by merely invoking a general division of powers, specifically when it comes to a competence which may interfere with other institutions’ powers. It is not enough to say that a power exists; it is also a matter of its modus quo, the manner in which it is exercised with regard to the other powers in concrete cases. The exercise of an existing power in concrete cases remains subject to limits inspired by the principles of both democracy and law. That is why in most constitutional orders various principles and doctrines exist regarding the limits of judicial powers: if such judicial powers are exercised without due respect for the proper role and function of the other powers, this would be considered to infringe the balance of powers itself. Democracy is an element in any modern consideration of the relations between the respective public powers. The fact that democracies operate under the rule of law does not make them any less democracies. The judiciary is democratically legitimated by the democratic nature of constitutional norms that invest it with judicial power, as well as by the democratic nature of the legal norms courts apply, especially norms enacted by parliament, but this remains a less direct legitimation compared to that of legislatures and executives.

So, the argument of the law as a limit to democracy needs to be refined if it is to be used to argue for the legitimacy of this particular judgment, particularly so as to justify why, in the course of saying what the law is, the judiciary arrogates to itself both the power to define policy targets and the timeframe within which these have to be realised. And refining the argument in such a way is no easy task.

The Hoge Raad relies crucially on three points to legitimate the restriction of democratic decision-making on its substance: the state of climate science; the meaning of Articles 2 and 8 ECHR in combination with Article 13 ECHR; and the Court’s view that this case involves ‘an exceptional situation’.

Climate science

The dominant role of scientific knowledge in this judgment is neither unique in environmental case law nor unproblematic.

In this context it is useful to note that the 25% target mentioned on one of the nearly 3,000 pages of the Fourth Assessment Report ⁴⁸ was not formulated with the intention to create a firmly grounded scientific standard – on the contrary, according to one of the authors of the relevant ICCP report, the table ended up more or less as a kind of footnote to the text, because it was considered to be an estimate only, and was too weakly substantiated from a scientific point of view to be mentioned in the findings of the main text. ⁴⁹ Also, the particular table’s asserted range of a 25-40% range of reduction for the so-called Annex I countries (of which the Netherlands is one) in connection with a reduction to a stable quantity of 450 ppm (particles per million) CO₂ equivalents, in order to attain the legally binding aim of reducing emissions to reach a temperature increase of no more than 2°C (with an effort to significantly less, and ideally 1.5°C) is at the very least uncertain. Instead of the 25-40% range, scientifically a reduction range of 10-80% was considered to be better climate science at the time, according to the same co-author. ⁵⁰ That a co-author of the report that has been so decisive in all instances, makes short shrift of the scientific solidity of the judgments, ⁵¹ should make one wary about the use that judges have made of the report: not only was the 25-40% range for reduction of emissions by developed states a guess that was considered too unsubstantiated, the very 2°C criterion set as a legally binding target in the Paris Agreement was not established by climate science but stems from political decision-making. Moreover, according to the same climate science, a temperature increase of 1.5°C would occur even if emissions could be reduced to nil in 2016, this being a consequence of the lingering effect of greenhouse gases in the atmosphere. ⁵² This is not to say that these criteria were necessarily wrong, but merely that they are not founded on climate science, but on a political assessment and on a political choice.

This political choice might easily be different from that of either the EU institutions, or the Dutch government and parliament, or that of the Hoge Raad. The climate reports available at the time do not suggest at all that a target of 25% reduction by the end of 2020 is sufficient to prevent climate consequences that would in many places in the world be catastrophic. Much is to be said for the view that 25% by the end of 2020 is incredibly low, and most probably too little too late. Viewed over time dynamically, the various reports from the International Panel on Climate Change sketch other and better scenarios, some of which are more elaborately substantiated than that one table which never ever recurs in the texts or conclusions of any of the scientific reports (nor in the relevant report itself). No clear evidence exists that 25-40% is the one and only minimum limit at one particular moment in time to be achieved or pursued by the Netherlands in order to reach the 2°C target (or the 1.5°C target), let alone that it could deal sufficiently with the broader long-term problem. Seeking a ‘minimum’ is necessarily choosing between various scenarios. Thus, in 2008, the UK chose 26% as its legally binding minimum target for 2020, which it subsequently amended in 2009 to 34% – a target it achieved and even exceeded in practice. ⁵³ Why the Hoge Raad found a scenario of a minimum of 25% to be the only relevant one remains uncertain and to that extent arbitrary – a different choice could easily be made, and the rationales for different choices inevitably depend on non-legal policy preferences.

The ECHR as policy framework

It may be doubted whether the established legal meaning of Articles 2 and 8 ECHR can be used to justify the rulings of the Dutch courts. The Hoge Raad (following the Court of Appeal) refers to the European Court of Human Rights judgments on the meaning of the relevant provisions with regard to environmental matters in the Strasbourg case law. ⁵⁴ Although the Hoge Raad acknowledged that the European Court of Human Rights has so far not handed down any judgment on climate change, it boldly asserted that the answer to the question of the protection afforded by Articles 2 and 8 ECHR is in this case ‘sufficiently clear’ (para. 5.6.3), and did not submit questions to the European Court of Human Rights for an advisory opinion under Protocol No. 16 to the ECHR ⁵⁵ (para. 5.6.4).

But is it so clear? We saw that, contrary to the Hoge Raad, the Brussels civil court judged differently, and found that 20% did not infringe Articles 2 and 8 ECHR. And is the Strasbourg case law ‘sufficiently clear’ to enable a court to say that a 23% reduction target by the end of 2020 – which was still within reach at the time of the judgments – is an infringement of the right to life and individuals’ well-being, but a target of 25% is not? The precise borderline seems rather arbitrary; in any case, this exceptional judicial clear-sightedness, insight and wisdom would have merited being backed up by a referral for an advisory opinion under Protocol No. 16 to the European Court of Human Rights.

Exceptionality

It is within the province and duty of the legislative branches of government to balance competing political goals of similar magnitude and importance in light of distributive justice, in particular the overall scarcity of public resources and fiscal limitations. Courts are generally not in a position to do that kind of macro public interest balancing, if only because the other public interests involved are not usually represented in the particular case before the court. If anything, the very existence of competing general interests of similar importance and magnitude that need to be balanced, should be a reason for courts to exert restraint or even to abstain from allowing or upholding a claim in public interest litigation. ⁵⁶ In several places in the Urgenda judgment the Hoge Raad seems to acknowledge this, saying that in principle the setting of public policy targets is the competence of the political branches of government (by which it means the legislature and executive). A special argument that the Hoge Raad uses to diverge from that principle in this particular case nevertheless is the appeal to the ‘exceptionality’ of the present situation. What is the importance of this appeal to ‘exceptionality’, and what could it possibly mean?

These are important questions to pose. In democracies one should as a matter of principle be sceptical about invoking ‘exceptionality’ as a justification for interventions in the ordinary democratic process and trenchant interference with fundamental rights. During the major recent crises, from the troubles in Northern Ireland, the Basque armed attacks, the post-9/11 terrorist threat, the Bataclan and other terrorist attacks in France, the banking and euro crises, right up to the Covid 19-pandemic crisis, states of exception – formal and informal – have been declared. ⁵⁷ Declaring the ongoing climate crisis, which is indeed one of the greatest challenges facing mankind, not just a crisis but an emergency situation, to be precise a ‘climate emergency’, as did the European Parliament, ⁵⁸ can be viewed with suspicion. The essence of emergency situations and states of exception has in constitutional history – and also in positive constitutional law – been that they justify diverging from the ordinary relations between public powers in a democratic state under the rule of law. ⁵⁹

For one thing, in the whole of the judgment there is not one argument regarding the power of courts to order policy targets to be replaced by targets set by the courts themselves that is formulated as being contingent on the exceptionality of the case. In fact, none of the arguments used by the Hoge Raad on constitutional relations between courts and ‘the political domain’ are restricted to climate cases only. ⁶⁰ On the face of it, there is no reason to think that this remedy can only exist in climate cases. The power that the Hoge Raad asserts to order executive and parliament to pursue and attain policy objectives that it has itself set, is justified on the basis of powers it supposedly has anyway. This explains why some of the more enthusiastic commentary on Urgenda finds that the new separation of powers delineated in Urgenda should not be anything exceptional and should be embraced generally. ⁶¹ Others believe that judicially changing the constitutional arrangements is the only right way to ‘green the constitution’ if the other political branches fail to achieve what is politically desirable. ⁶² Traditionally, states of exception have been conservative in nature, in the sense that they aimed at restoring a status quo ante. ⁶³ In this new line of argument, the exception is meant to lead to constitutional change that is here to stay – as has indeed happened so often in the crises of recent decades.

But perhaps this reading is overstating the more general drift of what an exception means semantically: something that is not ordinary and should not be ordinary. Exceptionality may, after all, have been invoked in order to do what courts should otherwise not be allowed to do, i.e. balance competing political goals to be achieved in the general interest in light of distributive justice under circumstances of scarcity.

The justification of the exception may lie in the absoluteness of the issue of life and death that overrides any other consideration; it makes such balancing unnecessary or even undesirable. On the assumption that courts do not decide on the size of the cake, this means, however, apportioning a value to one piece of the cake and necessarily reducing what is left in terms of other pieces of the cake, even if these other ‘pieces of the cake’ may involve similar interests of life, death and serious disadvantages to human well-being.

Yet doing so, as in Urgenda, only in one particular instance of life and death and large-scale negative effects on human well-being and not in others, soon produces curious inconsistencies. To illustrate the problems courts end up with, consider the case of air pollution and the accompanying health damage, which currently causes many thousands of early deaths, ⁶⁴ particularly in larger cities in the Netherlands. It is ironic that the very same Court of Appeal at The Hague, whose judgment in Urgenda was upheld by the Hoge Raad, in a later air pollution case rejected a claim against the State to order measures to be applied on the basis of the positive obligations deriving from Articles 2 and 8 ECHR (or at least the WHO air pollution standards – informed by the best available medical science) in the implementation of an EU Air Pollution Directive. It refused to declare the failure to comply with WHO standards unlawful for three reasons: the margin of appreciation under the ECHR; the State’s compliance with the EU Directive’s minimum standards; and the fact that actually the State is moving towards stricter standards in practice than previously. ⁶⁵ With regard to the climate cause in Urgenda, however, it found these three arguments unjustified. By implication, it found the right to life and an individual’s well-being less worthy of judicial protection in the case of air pollution causing death than in the climate crisis. Is the invocation of ‘exceptionality’ then the right legal standard for courts to privilege the well-being and life of another, probably larger, group of future ‘others’ over the present right to life and well-being of a group of certainly thousands of persons? Is exceptionality a legal standard at all?

Striking down legally binding EU policy targets on the basis of the ECHR

Given their acceptance of the supra-constitutional rank of EU law in principle, ⁶⁶ and of the constitutionally guaranteed primacy of directly effective provisions of treaties and decisions of international organisations, ⁶⁷ Dutch courts may seem unlikely candidates to strike down EU decisions for infringing constitutional standards. In fact, in Urgenda the Hoge Raad, like the courts at lower instance, avoided doing so directly and expressly by focusing exclusively on the Dutch policy objectives. The decisions of the Dutch political institutions were the target, and not the EU decisions. And yet, there can be little doubt that declaring the national minimum target of 20% reductions to be an infringement of the right to life and private life under the ECHR, linked as they are to the EU minimum target, implies that those EU targets, on which the national ones were explicitly based, ⁶⁸ are in the view of the Hoge Raad equally in conflict with the relevant provisions of the ECHR.

The 20% minimum target was adopted by the EU institutions in the so-called EU Climate Package of December 2008. ⁶⁹ The formula adopted was referred to as ‘three times 20’: 20% reduction of greenhouse gas emissions; 20% increase in renewable energy; 20% savings through increased energy efficiency, all by the end of the year 2020. ⁷⁰ This agreement on the policy objectives, the result of tough negotiations, was at the basis of a set of instruments ⁷¹ which turned policy targets into legally binding commitments, mentioned in the preambles of the various instruments that elaborate on how to reach those targets. ⁷² Although the methodology of how to translate the overall target into specific targets in the range of instruments is complicated – this point is not touched on in the Urgenda judgments – there can be little doubt that declaring the overall target in conflict with the ECHR would also invalidate the legal instruments implementing it. Moreover, the provisions of the instruments themselves express their substantive dependence on the overall target. Thus, Articles 1(2) and 8 of Decision 406/2009/EC, on the effort sharing of member states to reduce their greenhouse gas emissions up to 2020, make a distinction between the percentages for the respective member states under this instrument, depending on whether the minimum overall target would change from 20% to 30%, as had been conditionally promised in the context of the political negotiations in the various climate conferences, ⁷³ although the condition was never fulfilled. These specific provisions are incomprehensible if the overall minimum targets are not binding as a matter of EU law. If the percentage is legally binding, it can be assumed that adhering to it is also lawful.

Yet, as a matter of EU law, this 20% will still have to comply with fundamental rights like the right to life and personal and family life in the sense of Articles 2 and 7 of the EU Charter of Fundamental Rights and Articles 2 and 8 ECHR – as the Charter must be interpreted in light of the latter (Article 52(3) Charter), and the latter forms part of the general principles of Union law in the sense of Article 6(3) TEU.

Against this view it has been asserted, although in a somewhat ambiguous manner, that the EU targets and instruments elaborating them are only minimum values. And as with minimum harmonisation, member states are free to apply targets over and above this minimum. The Hoge Raad refers in passing also to Article 193 TFEU in this regard, ⁷⁴ evidently to dismiss any appeal to EU law, as the Procurator General at the Hoge Raad did in a set of remarks to reach the conclusion that the validity of EU law was neither directly nor indirectly at stake. ⁷⁵ Indeed, as the Court of Justice has in the meantime made clear in TSN, any authentic ‘gold plating’ by setting higher norms than minimally required under EU law, falls outside the scope of EU law. ⁷⁶ However, what is at issue is not the legality of ‘gold plating’ by setting a higher target, but whether complying with the minimum target agreed in EU law and on which the EU climate measures all hinge, was as a matter of EU law incompatible with the ECHR. Clearly, if this minimum were unlawful, the EU instruments based on that would be affected, and partially or totally invalid, in particular the Effort Sharing Decision. In other words, although what member states do over and above the EU minimum may be outside the reach of EU law, the minimum which is set in EU law must itself be compliant with EU law – that is the whole point of minimum harmonisation. The reasoning that member states may choose more stringent protective measures (Article 193 TFEU) would assume that the higher minimum standards of the ECHR are set by the member states, but that is not the case. They are binding on the member states, and are part of the general principles of EU law. That a very particular interpretation of the ECHR is given by a national court does not change this. This commentator agrees, therefore, with the EU environmental lawyers who intimated that the Hoge Raad should have referred the matter to the European Court of Justice on this ground; ⁷⁷ by not doing so, it infringed EU law under the Foto-Frost doctrine.

The Dutch constitutional perspective

In the Netherlands, the ECHR is a constitutional standard against which all acts of parliament or government and all other acts and omissions of public authorities can be reviewed by any domestic court. ⁷⁸ The Hoge Raad has taken the view that, although courts cannot review the compatibility of acts of parliament with the provisions of the Constitution (Grondwet), there

is no rule, either in the Constitution or any other rule of the (national) law of the Netherlands, which stands in the way for a Netherlands court to review whether a treaty is in conflict with other treaties or other norms of public international law. ⁷⁹

This argument was the basis for Dutch courts subsequently to review international obligations deriving from treaties to which the Netherlands is a party against the ECHR. Thus, the Hoge Raad reviewed the obligation under the NATO Status of Forces Agreement with the US to deliver an American soldier within the Netherlands’ jurisdiction who had confessed he had murdered his wife, to the American military authorities against the obligations deriving from Article 3 ECHR, which according to the European Court of Human Rights prevents extradition of persons to the USA, whenever there is the risk that they will end up on ‘death row’ if condemned to capital punishment, which amounts to inhuman treatment. ⁸⁰ Under this case law, although the ECHR has no preestablished priority over other treaties under public international law, the interests involved in complying with the respective treaty obligations must be balanced in light of the circumstances of the case. So far, each time the Hoge Raad has been faced with a treaty obligation that was incompatible with the ECHR, the ECHR has prevailed. ⁸¹ On each of these occasion, it concerned infringements of Article 3 ECHR (the right not to be subjected to torture or to inhuman or degrading treatment or punishment). But it is hard to see why a threat to the right to life and well-being under Articles 2 and 8 ECHR due to a failure to prevent a climate disaster could not be a reason to review an obligation deriving from the EU Treaties against these rights. ⁸²

The national constitutional situation in the Netherlands is, in sum, that the ECHR as a treaty that forms an integral part of national law enjoys supra-constitutional rank and prevails in case of conflict with law that is binding under other treaties. In principle this also applies to obligations under the EU Treaties: EU law that infringes the ECHR must be disapplied in the Netherlands. ⁸³ In the Urgenda case this means that from the national constitutional perspective Articles 2 and 8 ECHR prevail over a legally binding EU commitment that sets the minimum reduction target for greenhouse gas emissions as low as 20% vis-à-vis the emission rate of 1990. By implication and implicitly, this is what the Hoge Raad has done in Urgenda.

The perspective of European Union law

Striking down the EU minimum target of 20% would be compatible with EU law under certain conditions only. It would require that, first, the Hoge Raad refers the preliminary question to the European Court of Justice, as most of the more rebellious national constitutional courts now tend to do. Next, the European Court of Justice would need to consider the compatibility with the ECHR and, moreover, it would need to find the incompatibility that the Hoge Raad stipulates, before the latter could use that in its own judgment in the case before it.

It would not be relevant for the admissibility of the case in Luxembourg, nor for its outcome, that by the end of 2019 the EU was projected to reach the overall emission reduction target of 26% by 2020, ⁸⁴ and would therefore reach the Urgenda standard of 25% to comply with the right to life and well-being under Articles 2 and 8 ECHR; the issue is whether it is lawful for the Netherlands to comply with a target of merely 20%. ⁸⁵

We must be aware, however, that it is now standard case law that the European Court of Justice no longer adjudicates the validity of secondary EU law against the standards of the ECHR, notwithstanding the letter of Article 6(3) ECHR. Since the entry into force of the Charter, the ECHR has disappeared into the background, to a position that is at best secondary to the Charter, even if a referring court relies exclusively on the ECHR. ⁸⁶ Rather, the Court would rule on the compatibility of the 20% minimum with Articles 2 and 7 of the EU Charter, the EU parallels to Articles 2 and 8 ECHR.

Whether the European Court of Justice would come to the same conclusion as the Hoge Raad did in Urgenda is questionable. On the core issue of whether a 20% reduction is an infringement of the right to life and well-being, and 25% is not, there is no European Court of Human Rights case law, so Article 52(3) Charter would not enter the picture. The Court might in principle extend autonomous protection that goes beyond the available ECHR standards. So far, no court – except in Urgenda – has found an infringement in such terms, and it is therefore not very likely the European Court of Justice would do so.

What if?

If the European Court of Justice were to find an infringement of the Charter, the Hoge Raad would probably judge as it did now; the specific question whether the infringement can be remedied by a domestic court order addressed to government and parliament is probably within the procedural autonomy of member states.

If the European Court of Justice were, on the contrary, to find that there is no such infringement of the Charter, speculation could go in various directions. Either the Hoge Raad would comply, and Urgenda’s claim would be off the cards, or the matter would be judged autonomously on the basis of the ECHR, as in fact was done. The position of the ECHR under Dutch constitutional law is clearly a tendency in that direction. One might speculate that this would induce the Hoge Raad to explicitly and autonomously disapply the EU 20% minimum standard, on the ground that it infringes the ECHR. Let us not forget that Dutch resistance in the run-up to the Charter was inspired by the view that the ECHR should retain precedence, ⁸⁷ which reflects the national constitutional position. Although it is unlikely that the Dutch courts will become as rebellious as, say, the Bundesverfassungsgericht, the phasing out of the ECHR as judicial standard for the validity of EU law, might actually tempt courts to claim space for an autonomous power to adjudicate. ⁸⁸ This could take different forms. One of these is the classic approach of circumventing the EU law basis of the act or omission to be reviewed, and focusing on the national act only, so as to pretend that no EU law at stake. It looks as if this is what the Hoge Raad did in Urgenda.

Final considerations: what should the Hoge Raad have decided?

It is not appropriate for an academic commentator to tell the Hoge Raad what it should have decided. The findings above, however, indicate that it went beyond the common ground in the European case law by replacing politically determined policy targets with policy targets of its own design, and ordering legislature and executive to realise those targets, after it found that the State of the Netherlands’ failure to combat the impending climate disaster was an infringement of the ECHR and therefore unlawful. It could, I submit, have established the unlawfulness of failing to act without going into the tricky issue of which exact percentage would need to be attained. Thus the Hoge Raad would have remained within the overall boundaries of the European case law sketched above, and would not have exposed itself to the criticism of determining policy targets (so aptly captured in the Italian expression indirizzo politico), which in the European constitutional tradition is left to parliament and government. Clearly, Urgenda is an extreme case of courts ‘acting as shepherd of Parliaments rather than as guardians of the Constitution’. ⁸⁹

It is by no means certain that the way the ECHR provisions were interpreted in Urgenda would actually be what the European Court of Human Rights would have done, especially as regards the core issue of whether a minimum reduction target of 20% would infringe the right to life and well-being, but a minimum reduction of 25% would not. In order to find that out, a reference under Protocol 16 ECHR would be required; this would, however, not be allowed under EU law ⁹⁰ in as much as the matter seems to come within the scope of EU law.

Setting the minimum reduction target at 20% was based on EU law. Striking that minimum down means, in effect, striking down EU law. For a court to do that, the case should first have been referred to the Court of Justice, which has the monopoly on assessing the validity of EU law. According to the European Court of Justice’s post-Lisbon standard case law, the ECHR can no longer be used as a standard, and it would instead review the case under Articles 2, 3 and 7 of the Charter; and it would have to apply this autonomously in the absence of clear case law from the European Court of Human Rights as to what reduction targets would and would not infringe those rights.

Instead of all this, the Hoge Raad bypassed EU law and gave its own autonomous national interpretation of the fundamental rights standard under the ECHR, providing a remedy that is both unique within European constitutional law, and controversial from the perspective of the democratic rule of law.