Ruling now available in English: Dutch gov’t loses appeal against Urgenda; Holland’s high court rules gov’t must reduce emissions to protect rights of citizens

Ruling in English:

Activists Cheer Victory in Landmark Dutch Climate Case by The Associated Press, Dec 20, 2019, The New York Times

THE HAGUE, Netherlands — In a ruling hailed as an “immense victory for climate justice,” the Netherlands’ top court ruled Friday in favor of activists who have for years been seeking legal orders to force the Dutch government into cutting greenhouse gas emissions.

Activists in a packed chamber of the Supreme Court in The Hague erupted into applause and cheers as Presiding Judge Kees Streefkerk rejected the government’s appeal against earlier rulings ordering the government to cut emissions by at least 25% by the end of 2020 from benchmark 1990 levels.

The Supreme Court upheld lower courts’ rulings that protection from the potentially devastating effects of climate change was a human right and that the government has a duty to protect its citizens.

Urgenda, the Dutch climate and sustainability organization that filed the original case, hailed the ruling as “a groundbreaking decision that confirms that individual governments must do their fair share to reduce greenhouse gas emissions.”

“I am extremely happy that the highest court in the Netherlands has confirmed that climate change is a real, severe problem and that government should do what they themselves have declared for more than 10 years is necessary, namely between 25% and 40% reduction of CO2,” Urgenda director Marjan Minnesma told The Associated Press outside the court.

Faiza Oulahsen of Greenpeace in the Netherlands called the ruling “an immense victory for climate justice.”

Reacting to the decision at his weekly press conference, Dutch Prime Minister Mark Rutte said: “I can guarantee we will do everything we can to achieve the goal.”

It is now more than four years since a court in The Hague first ordered the emissions cut in a case brought by Urgenda that spawned similar legal challenges in courts around the world.

The Dutch government appealed that verdict, saying that courts shouldn’t be able to order the government to take action. The government lost the appeal in October 2018, but appealed again, this time to the Supreme Court.

Friday’s ruling rejected that appeal, saying the Dutch government must act “on account of the risk of dangerous climate change that could also have a serious impact on the rights to life and well-being of residents of the Netherlands.”

Damian Rau, one of the plaintiffs that filed the case with Urgenda, said the Supreme Court decision “will set the action we so urgently need into motion and will force governments into taking their responsibility. The judgment is an example to the world that no one is powerless and everybody can make a difference.”

In the meantime, the Netherlands is approaching the target.

A report by the country’s Environmental Assessment Agency published last month estimated that Dutch greenhouse gas emissions in 2020 would be about 23% lower than 1990 levels. The agency said the reduction could be anywhere from 19%-26%.

Minnesma was skeptical about those projections.

“I would say that that is very, very, very optimistic,” she said.

Scientists say global emissions of carbon dioxide and other pollutants have to start falling rapidly as soon as possible to meet the Paris goal of keeping global warming by the end of the century well bellow 2 degrees Celsius (3.6 Fahrenheit), and ideally 1.5 degrees Celsius (2.7 F).

UN High Commissioner for Human Rights Michelle Bachelet welcomed the ruling.

“This landmark ruling provides a clear path forward for concerned individuals in Europe — and around the world — to undertake climate litigation in order to protect human rights, and I pay tribute to the civil society groups which initiated this action,” she wrote in a statement.

Not all legal efforts have been as successful as the Dutch case.

Earlier this month, three German farming families saidthey won’t appeal a court’s decision to dismiss their climate change lawsuit against Chancellor Angela Merkel’s government.

Earlier this year, the Dutch government it announced what it called a climate agreement — a raft of measures intended to cut emissions by 49% by 2030. But it appears unlikely the action already underway will be enough to meet the goal set by the courts in the Urgenda case.

Recently, the government has stepped up actions to limit pollution — including reducing the maximum speed limit on highways from 130 kph (80 mph) to 100 kph (62 mph) beginning early next year. Those efforts, however, have set off repeated protests by farmers and construction workers against government efforts to cut emissions, saying that has hurt their jobs.

Friday’s ruling came a day after Swiss authorities announced that environmental activists had collected enough signatures to force a referendum on setting specific goals for combating climate change in the Swiss constitution.

The original June 2015 ruling came in a case brought by the environmental group Urgenda on behalf of 900 Dutch citizens concerned about government inaction on climate change.

Greenpeace said the government will now have to step up action to cut emissions.

“The closure of coal-fired power stations and reduction of animal factory farming are obvious measures, which the government has been postponing for years,” Oulahsen said. ”Measures now will have to be drastic and the government owes that entirely to itself, because this verdict has not been taken seriously by Prime Minister (Mark) Rutte for four years.”

Minnesma said the problem of climate change is already clearly visible — citing the wildfires raging in Australia as an example — and things like risings seas pose a very real threat to the low-lying Netherlands.

“Our country is to a large extent below sea level, so at a certain point in time if it goes as quickly as it goes right now, you might have a serious problem here,” she said.

Urgenda Foundation v. State of the Netherlands

Filing Date: 2015Reporter Info: [2015] HAZA C/09/00456689Status: DecidedCase Categories:


Principal Laws:


A Dutch environmental group, the Urgenda Foundation, and 900 Dutch citizens sued the Dutch government to require it to do more to prevent global climate change. The court in the Hague ordered the Dutch state to limit GHG emissions to 25% below 1990 levels by 2020, finding the government’s existing pledge to reduce emissions by 17% insufficient to meet the state’s fair contribution toward the UN goal of keeping global temperature increases within two degrees Celsius of pre-industrial conditions. The court concluded that the state has a duty to take climate change mitigation measures due to the “severity of the consequences of climate change and the great risk of climate change occurring.” In reaching this conclusion, the court cited (without directly applying) Article 21 of the Dutch Constitution; EU emissions reduction targets; principles under the European Convention on Human Rights; the “no harm” principle of international law; the doctrine of hazardous negligence; the principle of fairness, the precautionary principle, and the sustainability principle embodied in the UN Framework Convention on Climate Change; and the principle of a high protection level, the precautionary principle, and the prevention principle embodied in the European climate policy. The court did not specify how the government should meet the reduction mandate, but offered several suggestions, including emissions trading or tax measures. This is the first decision by any court in the world ordering states to limit greenhouse gas emissions for reasons other than statutory mandates.

The Dutch government submitted 29 grounds of appeal. Urgenda submitted a cross-appeal, contesting the court’s decision that Urgenda cannot directly invoke Articles 2 & 8 of the European Convention on Human Rights (ECHR) in these proceedings.

On Oct 9, 2018, the Hague Court of Appeal upheld the District Court’s ruling, concluding that by failing to reduce greenhouse gas emissions by at least 25% by end-2020, the Dutch government is acting unlawfully in contravention of its duty of care under Articles 2 and 8 of the ECHR. The court recognized Urgenda’s claim under Article 2 of the ECHR, which protects a right to life, and Article 8 of the ECHR, which protects the right to private life, family life, home, and correspondence. The court determined that the Dutch government has an obligation under the ECHR to protect these rights from the real threat of climate change. The court rejected the government’s argument that the lower court decision constitutes “an order to create legislation” or violation of trias politica and the role of courts under the Dutch constitution. In response to these appeals, the court affirmed its obligation to apply provisions with direct effect of treaties to which the Netherlands is party, including Articles 2 and 8 of the ECHR. Further, the court found nothing in Article 193 of the Treaty on the Functioning of the European Union that prohibits a member state from taking more ambitious climate action than the E.U. as a whole, nor that adaptation measures can compensate for the government’s duty of care to mitigate greenhouse gas emissions, nor that the global nature of the problem excuses the Dutch government from action.

The Dutch government appealed the decision, and the Netherlands’ Supreme Court heard the appeal on May 24, 2019. On September 13 the Advocate and Procurator General, independent judicial officers, issued a formal opinion recommending that the Supreme Court uphold the decision.

On December 20, 2019, the Supreme Court of the Netherlands upheld the decision under Articles 2 and 8 of the ECHR.At Issue: Seeking declaratory judgment and injunction to compel the Dutch government to reduce GHG emissions

Case Documents:
06/24/2015DecisionDownloadNo summary available.
10/09/2018DecisionDownloadOfficial Decision in Dutch.
10/09/2018DecisionDownloadUnofficial English Translation from the Court.
01/08/2019AppealDownloadGovernment Appeal to Supreme Court (in Dutch).
04/12/2019AppealDownloadUrgenda Reply to Government Appeal to Supreme Court (in Dutch).
09/13/2019OpinionDownloadOpinion of Advocate and Procurator General (Dutch)
09/13/2019OpinionDownloadOpinion of Advocate and Procurator General (unofficial English translation)
12/20/2019JudgmentDownloadSupreme Court Judgment in Dutch

Refer also to:

2015: A Duty to Protect. “It is also not at all certain, that stricter climate policies will seriously harm our competitive position, or lead to companies leaving…supposed dangers that the State put forward in its defense. But even if this were the case these grounds are insufficient to assume that the Netherlands is not neglecting its duty of care.

2019: Rhode Island vs 21 Oil & Gas Companies: Judge William Smith characterized operations “leading to all kinds of displacement, death (extinctions, even), and destruction….Defendants understood the consequences of their activity decades ago…. But instead of sounding the alarm, Defendants went out of their way to becloud the emerging scientific consensus and further delay changes – however existentially necessary – that would in any way interfere with their multi-billion-dollar profits.”

2019: Lawsuit Targets Feds’ Failure to Consider Colorado Fracking’s Climate Harm. “And despite several court decisions making it clear that this failure is illegal, the BLM continues to allow oil and gas leasing to go forward without considering the climate impacts.”

2019: Lawsuits in USA testing “attribution science.” Researchers can link weather events to emissions and companies responsible. “This body of literature…tells us that dangerous climate change is upon us, and people are suffering and dying…and it’s going to get worse.” For any potential uncertainty about climate attribution, there’s at least one truth that should override the rest: Fossil fuel companies “were aware decades ago what trouble climate change would be.”

What about us? Shell, ExxonMobil, Chevron & BP Could Be Legally & Morally Liable for Climate Crisis in Philippines

Encana, one of the world’s 47 most polluting companies, named “morally responsible” for death & destruction; First time a human rights body stated fossil fuel companies can be found legally and morally liable for harms linked to climate change.

Compare to Canada, if you dare:

Irving drops pledge to cut emissions by 17% at Canada’s largest oil refinery [What a filthy cop out by one of Canada’s nastiest] What will our gov’ts and courts do? Little but twiddle with the truth.] by Reuters, Dec 20, 2019, Calgary Herald

Irving Oil, operator of Canada’s largest oil refinery, has abandoned a pledge to cut carbon output by 17 per cent from 2005 levels by 2020, replacing it instead with a goal to keep its performance on climate change competitive with rivals, according to documents reviewed by Reuters.

The policy change appears likely to ensure the refinery – the nation’s 18th biggest greenhouse gas emitter — misses the cuts by a wide margin at a time Ottawa is seeking to slash emissions and build a reputation as a world leader in the fight against climate change. The refinery is located in the city of Saint John, in the East Coast province of New Brunswick.

Family-owned Irving Oil had publicized the 17 per cent carbon cut target after the Copenhagen Accord of 2009, an international agreement to combat global warming that has since been superseded by a more ambitious and widely adopted deal called the Paris Agreement. [Just done to get a bunch of freebies from taxpayers?]

But the company, which supplies more than half of its gasoline and other fuels to the U.S. Northeast, removed the pledge from its website earlier this year, without any public announcement of a change in policy.

Regulatory filings obtained by Reuters through a Right To Information Act request show the company ceased to target an outright reduction in carbon output from the refinery as early as 2016. It instead adopted a goal to maintain a carbon intensity rating among the top 25 per cent of rival refineries in Canada through 2025, using a methodology developed by Texas-based consultancy HSB Solomon Associates that considers a facility’s “complexity” instead of just its emissions-per-barrel of throughput, according to the filings.

Carbon intensity refers to the amount of carbon dioxide released by a facility per unit of production.

Irving listed more than two dozen projects and programs to help achieve this goal, including “fugitive emissions leak detection” and improving the energy efficiency of the plant, according to its Greenhouse Gas Management plan filed with provincial regulators in 2016.

In Irving’s 2017, 2018, and 2019 annual reports to regulators on its progress with the plan, the company stated it was meeting its goal of remaining in the top 25 per cent among peers based on the Solomon method.

In response to questions from Reuters, Irving confirmed that its carbon targets had evolved but did not provide any details. “We continually update our standards to accurately reflect the targets set in the areas where we operate,” Irving spokeswoman Candice MacLean said in an email.

The 320,000 barrel-per-day refinery emitted just over 3 million metric tons of carbon dioxide equivalent in 2017, according to the latest data from Environment Canada, marking a 7 per cent decline from 2005 levels.

Irving did not provide more recent figures.

The facility’s carbon intensity, meanwhile – as a simple calculation of its emissions of carbon dioxide equivalent per barrel of throughput – topped the list among Canada’s five largest refineries that year, according to a Reuters review of the Environment Canada emissions data.

But Irving has successfully argued to provincial [DE]regulators that a simple carbon-per-barrel calculation leads to unfair comparisons, according to the filings.

“The most effective benchmarking tool for measuring a refinery’s GHG (Greenhouse Gas) performance is the Complexity-Weighted Barrel methodology developed by Solomon Associates,” the company said in the 2016 filing, as New Brunswick was devising a provincial climate law.

Solomon’s methodology uses proprietary, nonpublic details about an oil refinery’s operational units to calculate its complexity, and is used by [DE]regulators in several European countries, the state of California, and the provinces of Alberta and Ontario to track refinery climate performance.

Canada has been an enthusiastic participant in the 2015 Paris accord, and in 2016 adopted stringent federal regulations, including a controversial tax on emissions, to help it reach its goal of slashing nationwide greenhouse gas output by 30% from 2005 levels by 2030.

New Brunswick aims to help Canada meet that target in part by requiring its large industrial emitters to reduce their carbon intensity by at least 10 per cent by 2030. The province has agreed to track the performance of the Irving refinery, which accounts for around a fifth of provincial emissions, by using Solomon’s Complexity Weighted Barrel method.

Nasty! Canadian courts describing “individuals as exhibiting ‘vexatious-style’ behavior without formally designating them as a vexatious litigant.” Is that how Supreme Court of Canada Justice Rosalie Abella gets away with ruling AER found Ernst to be “vexatious litigant” when evidence proves AER found Ernst to be a “criminal,” 7 years later, a terrorist – all without charges, evidence, trial or due process? With AG Jody Wilson-Raybould saying & doing nothing about Canada’s top judicial farce?

Who orders a new hearing for a Supreme Court of Canada ruling where 9 justices knowingly published a lie and sent it to the media? Who “slaps” Justice Rosalie Abella for knowingly lying in her ruling and belittling the applicant? Certainly not the Canadian Judicial Council!

Jessica Ernst Open Letter to Chief Justice Beverley McLachlin Regarding False and Seriously Damaging Statements in Justice Rosalie Abella’s Supreme Court of Canada Ruling, Ernst v AER

Oh Racist Colonial Canada: As vile under Trudeau as Harper! Police prepared to shoot Wet’suwet’en land defenders; Documents show Commanders argued “lethal overwatch is req’d” – a term for deploying snipers – like in Elsipotog in 2013. RCMP commanders also instructed officers to “use as much violence toward the gate as you want.” PS Merry Christmas.

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