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Spurred by Dutch legal victory, advocates look to courts to push climate policy

Environmental campaign groups and individuals have launched a flurry of lawsuits against European governments in recent years, ramping up the pressure on states to increase emissions reduction targets. They now hope that a lawsuit against the European Union over the bloc's climate targets will set an important precedent and unleash an even bigger barrage of similar legal action.

The so-called People's Climate Case is the first ever against all of the European Union's 28 member states, brought on behalf of ten families from around the world who are arguing that the lacking ambition of the EU's greenhouse gas reduction policies is damaging their lives. A decision by the European Court of Justice on whether it will hear the case is expected in the next few weeks and will come as environmental protests have gathered pace across Europe.

SNL Image
Greenpeace activists protest near the Maasvlakte power plant in the Rotterdam harbor in 2008.
Source: Associated Press

As they await the EU court's decision, climate campaigners are also pointing to a similar, successful case against the Dutch government that could have a major impact on the power sector in the country.

"There is a lot of pressure coming from a lot of sides," said Dennis van Berkel, a legal counsel at the Urgenda Foundation, which initiated the case against the Netherlands. "And governments are increasingly realizing that they need to start acting."

In the ruling, first decided in 2015 and upheld on appeal in October 2018, a Dutch district court ordered the government to reduce the country's carbon emissions by 25% by 2020 compared with 1990 levels, up from an official target of 17%.

The Dutch government has taken the matter to the Supreme Court of the Netherlands, arguing that the ruling unduly interferes in government policy. But the government will have to implement or at least prepare measures to significantly reduce emissions in the meantime since the next ruling could take at least until the end of this year.

U.K.-based Aurora Energy Research estimates that the Dutch power sector — a likely target for speedy action, given its high emissions and the challenge in decarbonizing heating and transport — would have to cut 14 million tonnes of CO2-equivalent per year to close the gap. This would mean either immediately shutting down all of the country's five remaining coal power plants or implementing a unilateral carbon price floor of €37/tonne, according to the consultancy.

The five coal plants still online in the Netherlands, operated by German utilities RWE AG and Uniper SE, Sweden's Vattenfall AB and France's ENGIE SA, are only scheduled to close in phases until 2030.

Common claims

The success of the Urgenda case has also buoyed many other efforts around the continent. A citizen lawsuit in the U.K., brought by charity Plan B to force a change in the government's long-term climate targets, last month failed on appeal, but climate cases are currently ongoing in countries including Ireland, Belgium, Germany, France and Switzerland.

SNL ImageSupporters congratulate Urgenda's legal team after their victory in court.
Source: Associated Press

"The Dutch case has been seen as a precedent by campaigners and non-governmental organizations, to see if they can replicate that in their country," said Wendel Trio, director of Climate Action Network Europe, which is coordinating the case against the EU. "I think that positive outcome has really made a lot of people think that this can be a powerful tool."

Researchers have specifically observed a rise in strategic cases, where NGOs and individuals seek to push courts to examine the link between climate change and rights protection. In many of these cases, plaintiffs have made the same basic argument: that the unmitigated effects of climate change are infringing on their basic human rights. In the Dutch case, Urgenda cited articles relating to the right to life and the right to respect for private and family life under the European Convention of Human Rights, for example.

A case brought by Friends of the Irish Environment against the Irish government, currently before Ireland's High Court, argues that the country's climate plan will not reduce emissions fast enough to protect its people from the impacts of climate change and therefore violates citizens' constitutional rights. The plaintiffs also say that the plan falls far short of what is required under the Paris Agreement on climate change, which saw countries pledge to keep the rise in global temperatures to well below 2 degrees Celsius above pre-industrial levels and pursue efforts to limit the increase to 1.5 degrees.

"Because of the nature of the climate issue — it's basically the same for everyone — there is an attempt to make this into a global strategy," Joana Setzer, an expert on climate litigation at the London School of Economics' Grantham Research Institute, said in an interview.

This commonality has led judges to look across national borders when deliberating similar cases since this legal area is still largely uncharted, Setzer said. "Although most of these cases are in domestic courts, they have been 'traveling.' You will see judges [in other countries] now reference Urgenda, which is something quite unusual."

'A growing trend'

Plaintiffs in the current crop of climate cases are relying on the fact that countries have a duty of care for their citizens. The suit against the EU challenges the incompatibility of recent emissions-related regulation with the right to health and life, the rights of children, the right to own and use property, and the right of equal treatment all protected by the EU Charter.

Although the case's outcome is highly uncertain, Setzer said the plaintiffs may be encouraged because the European Court of Justice tends to follow a precautionary approach and generally interprets EU environmental directives within the spirit of protecting the environment.

SNL ImageStudents march during a climate change protest in Brussels on Feb. 14, 2019.
Source: Associated Press

But even if they do not force outright changes to climate policies, campaigners are banking on the public pressure generated by their legal battles to nudge the larger issue of climate change higher up on the political agenda. Urgenda's van Berkel argues that this has been the case in the Netherlands, whether the ruling will eventually stay or not.

Last year, the Dutch government adopted a climate law with ambitious targets for 2030 and 2050, including its first mandated coal phaseout schedule, which he says would likely have been less ambitious if the lawsuit had not turned up the heat.

"Prior to 2015 [climate protection] wasn't really debated and now it's the biggest issue in the country," van Berkel said. "It totally changed the political dynamic."

The uptick in strategic climate cases is not limited to Europe and its human rights provisions. One of the most high-profile cases launched in the aftermath of Urgenda is Juliana v. U.S., in which two environmental groups and 21 children sued the U.S. federal government over its response to climate change, arguing that the government has a constitutional responsibility to take more steps to curb carbon dioxide emissions.

A ruling in their favor could have wide-reaching implications for U.S. energy policy, especially as the Trump administration has moved to unwind regulations holding back fossil fuel development.

Meanwhile, groups involved in several active European climate cases launched a Climate Litigation Network to combine and strengthen their efforts, and more cases around the world are at various stages of preparation. If the Dutch success is replicated elsewhere, more countries could soon be pressured into tightening their climate protections, with potentially wide-ranging ramifications for the private sector.

"At least for another while, this is going to be a growing trend," Setzer said.