In 2015, plaintiffs in the case, an eco-litigation group called Urgenda (“urgent agenda”), argued that the government’s plan to cut emissions 16 percent by 2020 did not go far enough given officials’ repeated affirmations at United Nations climate summits of the need to avoid 2°C of global warming. Although non-binding under international law, the government’s pledges created a “duty of care” under Netherlands law with respect to climate change, plaintiffs argued. The lower court agreed.
The government challenged the 2015 decision, but the appeals court also decided in favor of plaintiffs. Among other authorities, the appeals court cited the Paris Climate Agreement, which affirms the “urgent need” to hold global warming “well below 2°C above pre-industrial levels” by 2100, and to “pursue efforts to limit the temperature increase to 1.5°C.”
The government argued it already committed to reduce Dutch emissions 49 percent by 2030, and there is no necessity to achieve that result on any particular schedule over the next dozen years. As evidence, the government cited the IPCC’s Fifth Assessment Report, which discussed several pathways by which the world can reduce emissions to achieve the Paris Agreement’s 2°C target.
The appeals court rejected that reasoning, noting that some IPCC pathways envision deployment of “negative emission” technologies such as direct air capture that are not yet commercially feasible. The court also argued that the Paris treaty’s aspirational 1.5°C target makes “increased pre-2020 mitigation action . . . more urgent than ever.” Hence, the appeals court concluded, the government must start right away to reduce emissions 25-40 percent by 2020.
In the case just decided, the Supreme Court ruled that the government’s plan to wait until after 2020 to make rapid emission reductions is contrary to the broad “consensus” affirmed by the IPCC and the European Union. According to that official assessment, limiting global warming to 2°C, keeping the 1.5°C goal “within reach,” and avoiding dangerous “tipping points” require a 25-40 percent cut in industrial country emissions by 2020.
The government argued that it is not up to courts to decide the schedule on which the Netherlands meets legislatively determined greenhouse gas reduction targets. The Supreme Court agreed that the “government and parliament . . . have a great deal of freedom to make the necessary political decisions.” However, the court decided that the current schedule does not stay within the “limits of the law to which” the government and parliament “are bound,” namely, the European Convention on Human Rights. The government’s schedule “lags behind the requirements of article 2” of the ECHR, which decrees that “Everyone’s right to life shall be protected by law.”
Breathtaking. The court is imposing specific emission-reduction targets and timetables that are not even included in the ostensibly “non-binding” Paris Agreement, all based on a treaty proclaiming the right to life.
This is judicial tyranny in overdrive. There is hardly any public policy decision that does not create or increase someone’s mortality risks. For example, Europe’s climate taxes and regulations endanger human life by holding back economic growth, inflating energy costs, and exacerbating fuel poverty. In free countries, politically-accountable elected officials, not judges, make the prudential judgments about the risk tradeoffs inherent in policy decisions.
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