A Victory for Wholehearted Lawyering

“[I]f ever there were a time to recognize through action this right to preservation of a healthful and pleasant atmosphere, the time is now”

A Victory for Wholehearted Lawyering: Dutch Citizens Win Climate Case Against the State

By Femke Wijdekop

Together with 886 citizens, Dutch NGO Urgenda brought a climate liability case against the Dutch state. I joined this case as one of the co-plaintiffs. Our argument was that the Dutch state neglects its duty of care towards us, its current and future citizens, by not reducing CO2 emissions quickly enough to avoid catastrophic climate change. We asked the judge to order the Dutch State to reduce its CO2 emissions with 25-40 % in 2020, the percentage that science and international agreements tell us is needed if we want to stay below the 2 degrees global warming threshold.

24 June 2015 was 'judgement day'. What I heard in the Hague district courtroom that day exceeded my hopes and expectations. In a groundbreaking verdict, the judges agreed fully with the arguments presented by us and stated that the Dutch state has a duty of care, under Dutch tort law, to reduce its C02 emission to 25% in 2020 (the judges chose for the minimum percentage as not to infringe too much the discretionary power of the Dutch government to make climate policy). The court ruled that Urgenda had standing and that the State acted unlawful towards Urgenda, representing 886 citizens, under national tort law.

The court used European human right standards, such as art. 2 and 8 of the European Convention for Human Rights, the precautionary principle, the UN Framework Convention on Climate Change, and the treaty of the European Union to interpret the 'equity' principle of the Dutch tort article (art. 6:162 Civil Code) and concluded the Dutch state liable for a tort of negligence towards Urgenda. The argument of the State's defense, that climate policy is a matter of discretion for the executive power, was brushed aside when the court appealed to the protective logic of the rule of law and separation of powers: the judiciary's rightful place is offer its citizens protection when the executive exercises its power in such a way that endangers the wellbeing and human rights of its citizens, and this includes the negligence of a government refusing to take timely climate action.

We, co-litigants, and the defense of Urgenda were amazed by the boldness of the court; and I was deeply touched that something really seems to be changing in the world if a court, which could have easily have hidden behind arguments like 'the discretionary power of the executive to determine climate policy', 'the relative small contribution of the Netherlands to the global emission problem, thus refusing to establish proportionate liability' or 'the lack of a strong enough causal link between the actions of the Dutch state and the future damage caused by climate change' - let alone simply refusing to grant Urgenda standing! - that with all these arguments present, the court made a bold decision to take responsibility for its duty to acknowledge scientific facts, apply the law and do justice in this matter of extreme societal importance.

For me it was a moment in which my idealism touched ground and merged with the hopes of the other 100 co-litigants present in the room, (some of which held hands and many shed tears, like I did), hopes which were confirmed and 'mirrored' by the words of the judge who agreed with our most important grievances and demands. Such was the surprise that Urgenda's lawyers had to pull themselves together afterwards, overcome with emotion and relief - TV news images later showed their teary faces and yet none of them really tried to hide their tears: they were proud to admit that they had put their whole heart into this case - in what they described as 'the case of their lifetimes'. I cannot help but think that some of this wholeheartedness rubbed off on the judges in this rightful judgement.

Right now (medio August 2015) the State has 7 weeks left to decide if it will appeal. Colleagues with 'insiders knowledge' tell me the government (which is a coalition goverment in which liberals and conservatives share power) is divided and that there is a fair chance it will not appeal. Urgenda and other green NGOs sense a possible victory and call upon Dutch citizens - and international supporters - to make themselves heard on social media; to let the Dutch prime minister know '#don't appeal'. This twitter-storm caught the attention of international celebrities like model Cameron Russell and Hollywood actor Mark Ruffalo, who added their voices to our choir. The tweets of international celebrities and 'ordinary' citizens like you and me ;) might tip the balance towards the State deciding not to appeal - how exciting is that?!

Another exciting anecdote is that a colleague-lawyer of mine, who works for the Ministry of Foreign Affairs, told me she met one of the lawyers who defended the State before the verdict when he gave a presentation to civil servants at the Ministry. This State lawyer told her that he was actually quite pleased that Urgenda had started the Climate Case and that in a way, they had already half-wun, because they were right in their argument that the Netherlands does not live up to its international climate change obligations and emission reduction standards. That the Dutch climate policy is falling short of international standards was also not disputed in court by this lawyer; the State's defense concentrated on the infringement of the discretionary power of the executive branch if the judges were to rule on climate policy and Urgenda's supposed lack of standing.

My colleague-lawyer is working on a PhD-thesis on the use of Ubuntu-principles in the governance of public goods like the global atmosphere, and the State-lawyer was very interested in her work. This anecdote completely blew my mind because I had never expected such an open mindedness from the State-lawyer. It definitely stretched my mind to let go of any dualistic notions that the State's lawyers were 'the bad guys', and we the good ones. It reminded me to see the common humanness in everyone, and gave me hope that lawyers working in established institutions like the government apparatus can be open to integrative law-ideas like governance based on Ubuntu.

Regardless of whether the State will appeal against the decision, the Climate Case judgement was already a huge victory for climate activists and environmental lawyers all over the world. It gave encouragement and sound legal arguments to NGO's in countries like Belgium, France, Australia and the United States, who have started similar lawsuits. Urgenda demonstrated a true 'gift economy-attitude' by translating all the summons and documents in English and sharing them with any NGO that expressed interest, for free.

It is my wish that the Dutch verdict will hold and be succeeded by many other similiar cases in other jurisdictions, forming a 'ius commune' on climate justice. I wish that other lawyers and co-litigants will dedicate themselves as wholeheartedly to these cases as we did here in the Netherlands on this historic day, and when they reach victory, 'pay if forward' like Urgenda did.

Update 11/23/15:

Although the government did decide to appeal the judge's ruling, last week (11/23/2015) the leader of the green opposition party and the leader of the governing labour party announced that they will propose a Climate Act in the Dutch parliament coming year. This Act, whose exact contents will be decided upon in the coming months, will contain ambitious climate policy: a reduction of CO2 emissions of 95% and 100% renewable energy by 2050s. NGOs like Greenpeace will be consulted for the exact goals and the speed of the CO2 emissions reduction policy. Part of this new Climate Act will also be the proposal to issue a yearly 'Climate Budget', similar to the yearly financial budget; in which the government commits to certain climate goals and CO2 reductions.

It's the first time in 35 years that a leader of an opposition party and the leader of a governing party team up to propose legislation.

The governing labour party, PvdA, did agree to appeal the Climate Case decision, but its leader now says that was because of the 'technical, legal, aspects' (did the judge overstep its mandate?) and not about the climate policy goals announced in the verdict.

Question remains if this new Climate Act could be able to count on a majority in parliament: the conservative party, VVD (coalition partner of the PvdA; together they form the government), will vote against as will some other right wing parties. However, there very well could be a tight majority to have this Act passed next year. This is an unique and exciting development and it is absolutely influenced by the Climate Case-verdict; this verdict prepaved the way for these political leaders to make such a progressive legislative proposal.

Seattle, Washington – Late last night, King County Superior Court Judge Hollis R. Hill issued a groundbreaking ruling in the unprecedented case of eight youth petitioners who requested that the Washington Department of Ecology write a carbon emissions rule that protects the atmosphere for their generation and those to come.

In a landmark decision, Judge Hill declared “[the youths’] very survival depends upon the will of their elders to act now, decisively and unequivocally, to stem the tide of global warming...before doing so becomes first too costly and then too late.” Highlighting inextricable relationships between navigable waters and the atmosphere, and finding that separating the two is “nonsensical,” the judge found the public trust doctrine mandates that the state act through its designated agency “to protect what it holds in trust.” The court confirmed what the Washington youth and youth across the nation have been arguing in courts of law, that “[t]he state has a constitutional obligation to protect the public’s interest in natural resources held in trust for the common benefit of the people.”

“It’s incredible to have the court finally say that we do have a right to a healthy atmosphere and that our government can’t allow it to be harmed,” said 13-year-old petitioner Gabriel Mandell. “This ruling means that what the Department of Ecology does going forward in its rulemaking has to protect us, the kids of Washington, and not just us, but future generations too, like my children and those to come. Now they can’t decide to protect short-term economic fears and ignore us because we have constitutional and public trust rights to a stable climate!”

The court validated the youths’ claims that the “scientific evidence is clear that the current rates of reduction mandated by Washington law. . . cannot ensure the survival of an environment in which [youth] can grow to adulthood safely.” The judge determined that the State has a “mandatory duty” to “preserve, protect, and enhance the air quality for the current and future generations,” and found the state’s current standards to fail that standard dramatically for several reasons.

The judge continued, writing that “current scientific evidence establishes that rapidly increasing global warming causes an unprecedented risk to the earth, including land, sea, the atmosphere and all living plants and creatures.”

The youth petitioners first requested the state initiate greenhouse gas rulemaking procedures in June 2014. The state refused to do so in August of the same year. The youth appealed that refusal last September, and in a June 2015 decision highlighting the urgency of the climate crisis, the judge ordered the state to reconsider the youth’s petition taking into account current climate science. Then, in July 2015, the youth plaintiffs met with Gov. Inslee to plead their case personally. Just 11 days later, Gov. Inslee ordered the Department of Ecology to institute greenhouse gas rulemaking, as the youth had requested for more than a year. In August 2015, Ecology again refused the youths’ request for a science-based rulemaking because they had initiated similar rulemaking at Gov. Inslee’s request. Because Ecology also rejected the youths' constitutional and public trust rights, the case, resulting in this decision, was argued in front of Judge Hollis Hill on November 3, 2015.

“In this important ruling, Judge Hill has made it very clear what Ecology must do when promulgating the Clean Air Rule: preserve, protect and enhance air quality for present and future generations and uphold the constitutional rights of these young people,” said Western Environmental Law Center Attorney Andrea Rodgers. “We will hold Ecology accountable every step of the way to make sure that Judge Hill's powerful words are put into action. This is a huge victory for our children and for the climate movement. To Gov. Inslee, we hope you take this message with you to Paris and heed Judge Hill’s finding that ‘if ever there were a time to recognize through action this right to preservation of a healthful and pleasant environment, the time is now.’”

This case is one of several similar state and international cases, all supported by Our Children’s Trust, seeking the legal right to a healthy atmosphere and stable climate. Cases brought by youth to protect the atmosphere are pending before trial judges in North Carolina, Pennsylvania, and Colorado, and before appellate courts in Massachusetts and Oregon.

Significantly, similar legal issues are being considered in a federal lawsuit brought in August 2015 against the federal government by 21 young people from across the U.S. and Dr. James Hansen as guardian for all future generations, in the U.S. District Court for the District of Oregon. Just last week in that case, the world’s largest fossil fuel industry representatives filed a request to intervene to protect their commercial economic interests in fossil fuel exploitation and to thwart the youth’s request for protection of their fundamental constitutional rights.

The proposed intervenors, the American Fuel and Petrochemical Manufacturers

(representing members Exxon Mobil, BP, Shell, Koch Industries, and virtually all other major refiners and petrochemical manufacturers), the American Petroleum Institute (representing 625 oil and natural gas companies), and the National Association of Manufacturers, called the youth’s case “a direct threat to [their] businesses.”

Julia Olson, executive director of Our Children’s Trust said “this Washington decision establishing constitutional public trust protections for the atmosphere, together with the decision earlier this year doing the same in New Mexico, evidences a wake-up by the judiciary that our collective right to a habitable future is at stake and must be protected by the courts before it is too late. Judge Hill did not mince words on the need for science-based climate action now.