States have a duty of care towards their citizens that the absence of a global climate treaty does not take away, argues Professor Arthur Petersen from University College London. A recent court ruling in the Netherlands sets a precedent for national judges to directly use climate science to find governments liable for inadequate action on climate change, he says. The ruling’s biggest impact may be outside the Netherlands.
A Dutch district court has ordered the Netherlands to cut greenhouse gas emissions to 25% lower than 1990 levels by 2020. This is several percentage points deeper than the 17% reduction the country had been envisaging.
While such a ruling may seem astonishing at first, the move by civil society to take on individual states for a global collective lack of progress on emissions reductions makes perfect sense. Whether anything will change in the Netherlands in the short term remains to be seen. Instead, by setting a precedent and inspiring further actions, this ruling may have its greatest impact elsewhere in the world.
The judgment implies that failure to address climate change and the harm it may cause is seen as a civil wrong in the Netherlands, within the scope of the tort law that people can appeal to when they have been wrongfully harmed. True, the Dutch government had argued that it is fully complying with its international obligations. But the judges point out that, since the Netherlands agrees measures should be taken to limit global warming to 2℃ above pre-industrial levels, the presence of a gap between international obligations and what would actually be needed to meet the 2℃ target does not take away an independent duty of care.
Developed countries have both ethical and legal obligations to cut greenhouse gas emissions – an obligation that holds even if adequate international agreements have not yet materialised.
The government could have seen this coming. The 25% figure is the product of Dutch scientific assessment work done about a decade ago and recently updated in the run up to Paris. This work was subsequently included in the IPCC’s Fourth Assessment Report back in 2007. Furthermore, the country’s present implementation of its energy strategy – based on a 2013 cross-party Energy Accord which focused on efficiency and renewable targets, rather than reduced emissions – will result in only a 17% reduction for the Netherlands. The gap is obvious.
The judges rightly observed that at present the numbers do not add up to what is needed. They subsequently argue the Netherlands should do more: if you see a disaster coming but you don’t do enough to mitigate it, when you could have, you are liable.
Duty of care
The same reasoning used by the Dutch judges for declaring tort law valid for dealing with climate change could be applied elsewhere. Each government has a duty of care towards its own citizens – and also towards other and future citizens. Developed countries have both ethical and legal obligations to cut greenhouse gas emissions – an obligation that holds even if adequate international agreements have not yet materialised.
It’s interesting to see the climate science accumulated over the past decades by the IPCC being used directly by national judges. This approach may receive a boost after the Paris summit later this year, as it’s questionable whether governments will deliver a strong and legally binding agreement on emissions. If they don’t, judges in other countries could produce similar rulings on the liability of their governments – they’d simply have to use the IPCC’s UN-validated body of knowledge to make a scientific case that the efforts do fall short.
The essence of the ruling is that states can be judged to have failed to meet their duty of care and that the discretionary power vested in states is not unlimited: their care may not be below standard.
Scientists don’t agree on everything to do with the climate, never mind the public, so it is heartening to see how the judges were able to deal explicitly with uncertainty and risk. Even the best expert advice involves some element of value judgment – the 2℃ target itself does not flow directly from climate science, for instance, but from a value-led assessment of impacts and the possibilities of adaptation. We’re also not certain just how sensitive the climate system will be to increasing greenhouse gas concentrations, or how emissions can and should be distributed over countries and time.
The Dutch court’s climate ruling may have its greatest impact not in the Netherlands but elsewhere in the world.
Yet the Dutch judges observed that the IPCC has always allowed for scientific uncertainty and in their ruling they effectively include assessments of uncertainty as part of the “facts” relevant for managing risk. In that way, the judges – while making brief reference to the precautionary principle – were able to use the 25% emissions reduction number derived from the IPCC report as a norm which is not met by the EU or the Netherlands.
Concerning values, while the judges missed the value-laden nature of judging climate change “dangerous”, they made a strong plea for the value of “duty of care”: the state must “mitigate as quickly and as much as possible”. And while the influence of the government is limited and the effects of some measures may be uncertain, the court concludes that the state “has the power to issue rules or other measures, including community information, to promote the transition to a sustainable society and to reduce greenhouse gas emission in the Netherlands”.
For now, let’s hope this judgment will neither be ignored by the Dutch government nor addressed only with short-term measures focused entirely on 2020 without regard for the bigger picture. It’s a moment for a deeper discussion on the transition to a low-emission economy, not only in the Netherlands but also in the European Union and globally. And Paris may show a way forward after all.
Arthur Petersen is Professor of Science, Technology and Public Policy at University College London (UCL). He has been a Dutch government delegate to the IPCC from 2000–2014 and Chief Scientist at the PBL Netherlands Environmental Assessment Agency from 2011–2014. This article was first published on The Conversation and is republished here with permission from the author.