Revolutionary Supreme Court for the world

Activists are pushing Dutch judges to act against governments and polluting companies over climate breakdown.

By Douwe de Lange

The Netherlands is among Europe’s worst polluters and Dutch authorities have been reluctant to regulate carbon emissions - but on recent trends, judges may be losing patience.

Five years after a Dutch court found the government guilty of failing to meet its commitments under the 2015 Paris Climate Agreement, judges are mulling a decision on whether to impose a similar burden of responsibility on oil giant Royal Dutch Shell. 

A case brought by the environmental organisation Milieudefensie accused Shell of actions which make it impossible for the Paris deal - het Parijse Klimaatakkoord - to succeed. In an action co-filed by 17,000 Dutch citizens, Milieudefensie has asked the judiciary to require Shell to abandon plans to increase its production of fossil fuels and switch to ‘a green corporate path’ - een groene bedrijfskoers te eisen, reported Frank Straver in Trouw. 

For the defence, Shell’s lawyers argued that Dutch courts are the wrong forum to adjudicate on the global societal problem of climate change. Nor, the company said, should judges be allowed to rule on the business strategy of a private company.

A verdict against Shell would establish another milestone - mijlpaal - in climate litigation, Professor Elbert de Jong from Utrecht University told NPO’s Een Vandaag current affairs programme.

The case follows a historic verdict in 2019, when the Supreme Court upheld a 2015 decision in the lower courts that failure to meet climate goals constituted a human rights violation. Deciding against the Dutch state in an action brought by Urgenda foundation, a non-governmental organisation, the judiciary ordered the government to reduce greenhouse gas emissions by at least 25 per cent by 2020.

The Supreme Court’s deadline has just passed. The government missed it.

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The ‘cellar hatch’ principle

Plaintiffs in the Milieudefensie case, which opened in December, say Shell’s plans violate its duty of care and threaten human rights by knowingly undermining the Paris Climate Agreement goal to limit global heating. For the prosecution, environmental lawyer Roger Cox QC accused the oil and gas major of violating the European Convention on Human Rights: specifically, the right to life (article 2) and the right to family life (article 8).

Shell’s lawyers have relied heavily - Shells verdediging leunt zwaar - on a report commissioned from the University of Groningen economist Machiel Mulder. It found that restricting output of oil and gas from one producer does not reduce global emissions. Mulder and colleagues cite examples from Iran after the 1978 revolution, and Kuwait after the Iraqi invasion of 1990, when the shortfall in oil production was quickly made up by other countries.

Urgenta made headlines across the world, as courts imposed a legal obligation on governments to do more to slow the pace of global heating

The case will test a key principle of Dutch jurisprudence known as the so-called cellar hatch judgment - het zogenoemde kelderluikarrest. Although no Dutch law exists to require cellar hatches to be kept closed - hoewel er geen Nederlandse wet bestaat die verplicht om kelderluiken te sluiten, substantial precedent exists to require citizens to act to prevent avoidable dangers.

(Long ago, a judge ordered someone to close an open cellar hatch - droeg een rechter iemand op een open kelderluik te sluiten, because it posed a ‘preventable danger’ - omdat het een afwendbaar gevaar opleverde.)

Arguments from both sides in Milieudefensie versus Shell have raised new questions over the reach of judicial power, and judges’ role in the political system in the Netherlands and beyond. If the court holds a private company accountable for undermining an international agreement signed by a national government, the precedent is certain to be tested in other jurisdictions around the world.

Judges 1 - Cabinet 0 

As one of 197 signatories to the Paris Climate Agreement, the Dutch state pledged to contribute to decreasing the rise in global temperatures caused by carbon emissions to well below two degrees centigrade above pre-industrial levels. But the unfolding legal consequences in Dutch courtrooms are a cause for anxiety in the governing VVD.

The majority party has proposed reforms to significantly restrict the role of judges in interpreting European conventions - De VVD wil de rol van de rechter en het Europees recht inperken, reported NRC. Critics argue the proposals would restrict opportunities for public interest litigation and weaken judicial protection for Dutch citizens: the VVD risks undermining the rule of law, cautioned Professor Christina Eckes. 

In FD, Bas Knoop compared the VVD’s stance to crackdowns on judicial independence in Poland and Hungary. Proponents of reform counter that more clarity is needed to define the checks and balances (also known as mutual control – wederzijdse control). This argument will define the Dutch variant of Montesquieu’s trias politica, the separation of powers between executive, legislature and judiciary. 

In the classic theory of the separation of powers, public interest matters fall under the responsibility of the government. Consequently, litigation on public interest matters such as climate change has been very rare in the Netherlands. The Urgenda decision, first handed down by the Appeals Court in 2015, signalled a break from this tradition in public interest litigation – algemeen-belang-acties.

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The post-Urgenda world

By defining climate as a public matter on which individuals can seek a decision in court, rather than purely a matter for government policy, Dutch courts became the first judicial authority to categorise climate breakdown in legal terms as a human rights matter – mensenrechtenkwestie

The decision sparked much debate and furore on the interaction between the government and the judiciary, the two branches of power which administer the rule of law – de rechtsstaat. In December 2019, the Supreme Court – De Hoge Raad upheld the decision in the Urgenda case. It found the Dutch government guilty of failing in its partial responsibility to meet the collective climate goals of the Paris agreement. 

The English term, derived from the Old Testament Book of Judges, is kritarchy or kritocracy: the system of rule by judges in ancient Israel

Urgenda made headlines worldwide, as the Netherlands became the first jurisdiction in which judges ordered a national government to adhere to binding international commitments in climate policy. The ruling “affirms that governments are under a legal obligation, as well as a moral obligation, to significantly increase their ambition on climate change. Our human rights depend on it,” announced Mary Robinson, former UN High Commissioner for Human Rights.

When the need is high

For all the claims of judicial activism by the courts, the legal precedent is not radical in the eyes of jurists. The Supreme Court stayed close to a middle ground in academic opinion, a school of thought known as the ‘situational’ approach, in which the key criterion is ‘need’.

Judges may act only when a situation needs immediate attention – de nood is hoog

For the judiciary to break with the traditional separation of powers – machtenscheiding, a general agreement is required in society that a situation is urgent and the government is failing. 

The Irish Supreme Court decided against the Irish government in July 2020, in a case brought by Friends of the Irish Environment

The Supreme Court emphasised the dire global climate situation to justify its revolutionary decision. In NRC, Professor Jerfi Uzman of Utrecht University wrote that the judiciary has been emboldened by international conventions. Legal frameworks such as the ECHR allow more room for judicial interpretation than national law, concurred Professor Janneke Gerards.

Most media comment on Urgenda, positive and negative, interrogated the role of the judiciary in the Dutch state. A report in NRC identified a new worddicastocratie, to describe a system in which the judiciary exercises the highest power. The English term, derived from the Old Testament Book of Judges, is kritarchy or kritocracy: the system of rule by judges in the tribal confederacy of ancient Israel.  

Inspired by Urgenda, activists in other countries are testing governments’ failing climate policies in court - with increasing success. In July 2020, a decision against the Irish government in a case brought by Friends of the Irish Environment was upheld by Ireland’s Supreme Court, on the same human rights grounds cited in the Netherlands.

A notable exception - predictably enough - is the United States, where the Supreme Court has serially refused to hear climate cases on the basis of a so-called Political Question Doctrine that the judiciary must abstain entirely from political questions. Frequently cited by other national courts, this doctrine is very similar in substance to the VVD’s proposals in the Netherlands. 

Who signed the Paris agreement?

Meanwhile, a final verdict in the Milieudefensie case could take years. The first court decision is scheduled for May 2021, but is almost certain to go to appeal. If the prosecution eventually succeeds, Dutch courts could have an impact greater even than Urgenda on the prospects for public interest climate litigation across the world. 

The risk to oil and gas companies especially is very real. To date, no Dutch court has ruled on the impact on global temperatures of company actions that are not strictly unlawful according to the letter of the law. This may change.

As for the trias politica - a founding principle of every democracy, ancient and modern - the threat from revolutionary judges will be reined in if the VVD enacts its proposal to rein back their newfound appetite for intervention.

Shell, for its part, would prefer to leave that argument to judges and politicians. The company maintains that a national jurisdiction is the wrong forum to adjudicate a business operating in 90 countries. Unlike the government, wrote Daphina Misiedjan of Utrecht University in Trouw, Shell did not sign the Paris agreement.

Douwe de Lange studies law at the university of Utrecht.

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