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.
Differing views
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.
Editor’s Note
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.
Jenne says
I would think/hope that a scientist is willing and able to present us with a proper analysis of the pros and cons of the ruling, and how this ruling was discussed among experts. But what he writes here is just one-sided propaganda which has little to do with objectivity and a critical attitude one would expect from a scientist.
So, what are the pros and cons this ruling, professor? I’ll give you one example.
If the professor would have really read the ruling (yes, I know, it is long), he would have noted that the real essence of the ruling is this:
The Netherlands should lead the way because that is the role that the Dutch government has chosen to play. They have to do more than others because they are richer and should set an example.
It is NOT because the Dutch government actually CAN do something. Strange as it may sound, the judge actually agrees that there isn’t much the Dutch government can do all by itself (small country, small contribution to the global emissions, small effect on global CO2 by reducing its own reduction). The consequence is thus that the Dutch government cannot do much to better protect its civilians this way. But they should nevertheless “do something”, because apparently we are financially capable of spending lots of money on achieving very little.
THAT is a very strange line of reasoning.
And there are many other aspects of this ruling has been discussed at length at many other outlets.
But you won’t hear about them here, because, well, hey, this in the 21st century, where scientists are more interested in politics than doing what they are supposed and expected to be doing.
And scientists still wonder why science is losing its credibility.
Too bad.
Mike Parr says
You set up various straw men in your response. “we are financially capable of spending lots of money on achieving very little”. Taking one example, near-shore wind in the Netherlands is cheaper (circa Euro68/MWhr) than new coal (circa Euro90/MWhr) and, arguably, about the same as gas-fired CCGTs. So, deploying more renewables (or indeed, increasing energy saving) saves money and reduces CO2-emissions – it does not and never will involve “spending lots of money on very little” – in fact quite the reverse. This then demolishes your comment “very strange line of reasoning”. Having cheaper electricity and spending less (due to energy efficiency measures) also sets an example to other countries.
With respect to scientists & politics. Global warming and its outcomes are well understood and scientists have for the past 25 years been “shouting from the roof tops” about what is coming down the track. Politicians have at best partly listened and in the most part taken inadequate action. Dutch politicos are not an exception to this. When the body-politic has a wooden ear reasonable people, such as scientists, become impatient and usually more involved in politics.
With respect to your final comment, it is delusional. Most of the products you use in the home, and the Internet that you used to post your comment, was the product of science. This being the case and given scientists have, in your view, “lost credibility” I suggest you stop using the products of their endeavours.
CRP says