Report on debate at SPUI25: The Urgenda-judgement: judicial activism or logical step?
November 10, 2018
On the 6th of November, a public debate was organized by SPUI25in collaboration with the Paul Scholte Centre for Jurisprudence and the Faculty of Law of the University of Amsterdam in response to the recent Urgenda-decision. In this decision, the Hague Court of Appeal concluded that the State is acting tortuously in having a too little ambitious reduction target of greenhouse gasses emissions. It ordered the state to reduce emissions by at least 25% by the end of 2020. The decision has caused quite a stir in the Netherlands and has resuscitated a much more extensive and older debate about the interaction between the judiciary and the legislature.
PhD candidates Wiebe Hommeand Laura Burgers both responded to the decision in the local Dutch newspaper Volkskrant. At the cultural-acedemic podium SPUI25, they continued this debate. Wiebe Hommes personified the critics of the decision, stating that the Court exceeded its competence and is taking over the tasks of the legislature. Laura Burgers, however, argued that the Court rightly concluded that the State’s policy on climate change is inadequate and violates human rights. In support, she emphasized that the private law dimension in this decision should not be overlooked.
Judicial activism Hommes began by questioning the applicability of Article 2 (the right to life) and Article 8 (the right to private life) of the European Convention of Human Rights (ECHR). Although Wiebe recognizes that climate change is very dangerous, he put forward that these articles require the threat to be ‘real and imminent’. It is debatable whether the threat of not achieving the 2020-emission norms is enough, especially given the complexity of the threat of climate change, he said. In this context, Hommes also pointed out that the European Court of Human Rights ascribes a wide margin of appreciation when it comes to positive obligations of states that require socio-economic policy. He stated that the Court of Appeal has dismissed this margin too easily. Especially when it comes to the establishment of goals in percentages, he expected the Court to render the State some discretionary power.
According to Hommes, the question of whether or not the government should be committed to a 25% reduction of emissions is primarily a political question. All parties agree on what goal should be achieved: prevent dangerous climate change. The dispute centers around the ways in which this goal should be achieved. Should we decrease emissions gradually or should we quit cold turkey? The only place where all interests and viewpoint can be taken into consideration, is the political arena, said Hommes. The Court did not only conclude that the State fails to fulfill its duty of care pursuant to Article 2 and 8 ECHR, it also ordered the State to be more ambitious on achieving the 2020-goals. Given that the judiciary is not allowed to command law-making, it is debatable whether the 2020-goals can be obtained without further legislation.
Moreover, the fact that the Court used non-binding international commitments to determine the norm, can have detrimental implications. Wiebe thinks that the fact that the State can been held accountable for its ambitions will on the long run become problematic. There are lots of other non-binding policy objectives that can be altered into a fundamental right, like its commitment to invest 2% of its gross domestic project in the NAVO or its commitments to development aid. The Urgenda-decision could prevent the State from expressing the willingness to commit to non-binding ambitions.
Logical step Laura Burgers started to unfold a different view to the margin of appreciation. She points out that the margin of appreciation is a European instrument which makes sure the ECHR does not meddle to much into matters of national concern. The instrument makes sure treaty parties of the ECHR are still able to differ in policy on certain subjects. However, it is not an instrument that is meant to regulate the interaction between the judiciary and the legislator on a national level.
Burgers acknowledges that when the ECHR was established, climate change was not an issue yet. However, to conclude that Article 2 and Article 8 therefore cannot extent to the problem of climate change, is incorrect. What has happened is not so much that the article is including more rights, but rather that the problem of climate change has grown larger and larger and has now grown to a size that it has touched upon the right to life of Article 2 of the ECHR. The development of the Urgenda-case is therefore much more a development of facts than it is a legal development.
What is also important, Burgers emphasizes, is that in private law the Court accepts facts as true when they are not disputed by the parties. In the Urgenda-case, a lot of facts about climate change were undisputed. Nobody doubted that climate change is a common concern for mankind and that humanity plays a major role in this problem. Moreover, it has not been disputed that the Dutch government has participated in multiple climate summits in which they agreed that developed countries should reduce 25 to 40% of its emissions in order to counter the threats of climate change. Unlike Hommes, the Court holds, based on climate science that threats like floods, woord fires and heat waves are real and imminent. The State did not dispute such. The only thing that the Dutch state has disputed, is that it is necessary to already reduce 25% in 202, arguing that the so called ‘negative emissions’ have to be taken into account. Yet, Burgers emphasized the part of the judgment which reveals that Urgenda pointed out negative emissions techniques have not yet been invented, which the State acknowledged. Therefore, these were thought to be incredible by the Court. Burgers underlined that the 2020-norm did not come out of blue. It is a number that is scientifically substantiated and has been underlined by the Dutch government for years.
Lastly, Burgers rejected Hommes’ remarks in the Volkskrant, in which he said that that although it is a political necessity to act on climate change, it is also principally necessary for the State to turn to the Supreme Court. Laura points out that ‘political necessity’ is a contradictio in terminis, as politics are inherently contingent. If something is thought of to be necessary in politics, a debate is no longer needed and the subject therefore is suited to be evaluated by the judiciary. The Urgenda-case is a not a slippery slope: it does not happen often that a political question is embedded in so many facts, that a Court is able to formulate a decision on the governments’ policy.
Debate After this exchange of viewpoints, it was up to the audience to comment and question. Both speakers found supporters of their views. Someone articulated that he feared the possible loss of judiciary’s authority if courts continue to be as activist as in the Urgenda-decision. Others said judges cannot abstain from acting, given the urgency of the climate problem. Judges are not only appointed for quarrels of neighbors, they are also assigned to consider greater problems. An opponent of the decision spoke of “a clear colonization of the judiciary over the legislature”. Advocates of the judgement called this reaction “a frantic cling to the trias politica”. Other questions were raised, such as: is private law an appropriate remedy for these kinds of questions? Is the approach of the problem of climate change as a human rights problem, not too anthropocentric? And is this debate not just another representation of the classic dilemma between majoritarian politics and long-term decisionmaking?
To conclude, it is not surprising that academics from all over the university joined the debate. There are still lots of nuances to make, remarks to be noted and approaches to take on this decision. One thing that is clear is that this debate will not be settled for a long time.