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Climate Action as Positive Human Rights Obligation: The Appeals Judgment in Urgenda v the Netherlands

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Abstract

On 9 October 2018, the Hague Court of Appeal confirmed the first instance judgement rendered in the world-famous Urgenda case: the Dutch State commits a tort by setting a goal for greenhouse gasses emissions reduction of only 20% by the end of 2020, compared to 1990 levels. The State is ordered to raise this goal to at least 25%. Both judgments are heavily criticised by constitutional and administrative law scholars. Most of this critique is ultimately linked to the objection that the Courts overstepped their task in the constitutional separation of powers. With this objection the State also takes the case to the Supreme Court. This annotation analyses the appellate court's decision step by step, pointing out where it differs from the lower court's decision and engaging with the various critiques. The Court of Appeal directly applies Articles 2 (right to life) and 8 (right to family life) of the ECHR, finds that these rights cover climate change related situations, and on the basis of Dutch civil procedure determines that 25% reduction is the factual minimum to prevent ECHR violations. Although parts of the decision could have been motivated in more detail, the authors conclude that the Court applied the law correctly and that neither the separation of powers, nor the political question doctrine were infringed.
CLIMATE ACTION AS POSITIVE HUMAN RIGHTS
OBLIGATION: THE APPEALS JUDGMENT IN
URGENDA V THE NETHERLANDS
Laura Burgers
Tim Staal
Amsterdam Law School Legal Studies Research Paper No. 2019-01
Centre for the Study of European Contract Law Working Paper No. 2019-01
Amsterdam Center for International Law No. 2019-01
Law and Justice Across Borders Research Paper No. 2019-01
Electronic copy available at: https://ssrn.com/abstract=3314008
Centre for the Study of European Contract Law
Working Paper Series
No. 2019-01
Climate action as positive human rights obligation:
The Appeals Judgment in Urgenda v The Netherlands
Laura Burgers
laura.elisabeth.burgers@gmail.com
Tim Staal
staaltim@gmail.com
Centre for the Study of European Contract Law
Universiteit van Amsterdam
P.O. Box 15842
1001 NH Amsterdam
The Netherlands
Electronic copy available at: https://ssrn.com/abstract=3314008
1
Climate action as positive human rights obligation: The Appeals
Judgment in Urgenda v The Netherlands
Laura Burgers and Tim Staal1
Abstract On 9 October 2018, the Hague Court of Appeal confirmed the first instance judgement
rendered in the world-famous Urgenda case: the Dutch State commits a tort by setting a goal for
greenhouse gasses emissions reduction of only 20% by the end of 2020, compared to 1990 levels. The
State is ordered to raise this goal to at least 25%. Both judgments are heavily criticised by
constitutional and administrative law scholars. Most of this critique is ultimately linked to the objection
that the Courts overstepped their task in the constitutional separation of powers. With this objection the
State also takes the case to the Supreme Court.
This annotation analyses the appellate court’s decision step by step, pointing out where it
differs from the lower court’s decision and engaging with the various critiques. The Court of Appeal
directly applies Articles 2 (right to life) and 8 (right to family life) of the ECHR, finds that these rights
cover climate change related situations, and on the basis of Dutch civil procedure determines that 25%
reduction is the factual minimum to prevent ECHR violations. Although parts of the decision could
have been motivated in more detail, the authors conclude that the Court applied the law correctly and
that neither the separation of powers, nor the political question doctrine were infringed.
Keywords: Urgenda, separation of powers, ECHR, climate change litigation, human rights, right to
life, right to family life, environment, private law, civil procedure, political question doctrine
Introduction
The 9th of October 2018 was of great importance for the global climate change litigation
trend. The Court of Appeal in The Hague was about to make public its decision in the world
famous Urgenda case.2
Three years earlier, in June 2015, a Court of First Instance had ordered the Dutch
State to reduce greenhouse gasses emissions with at least 25% by the end of 2020, compared
to the levels of 1990.3 To do less would constitute a tort. The Dutch State shortly after
1 Laura Burgers works as PhD Candidate at the Centre for the Study of European Contract Law, University of
Amsterdam. Her thesis Justitia, the People’s Power and Mother Earth focusses on the democratic legitimacy of
environmental lawsuits like Urgenda, and is to be finished by the end of 2019.
Tim Staal completed his PhD research After Agreement. On the Authority and Legitimacy of Environmental
Post-Treaty Rules at the international law department of the University of Amsterdam (2017). He currently
teaches international law at the same university and is a freelance investigative journalist for Platform Investico
and De Groene Amsterdammer.
@ laura.elisabeth.burgers@gmail.com; staaltim@gmail.com .
This paper may be cited as: Burgers, Laura & Staal, Tim ‘Climate action as positive human rights obligation:
The appeals judgment in Urgenda v the Netherlands’ in Wessel, Ramses A; Werner, Wouter;
Boutin, Bérénice (Eds.) Netherlands Yearbook of International Law 2018, T.M.C. Asser Press, forthcoming in
spring 2019
2 Court of Appeals of The Hague (Gerechtshof Den Haag, hereafter: Court of Appeals) Urgenda v State of the
Netherlands, ECLI:NL:GHDHA:2018:2591, 8 October 2018.
3 District Court of The Hague (Rechtbank Den Haag, hereafter: District Court) Urgenda v State of the
Netherlands, ECLI:NL:RBDHA:2015:7145, 24 June 2015.
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announced to appeal the judgment. Although it promised to comply with the judgment, the
State disagreed on a principled basis: the separation of powers, or trias politica, would stand
in the way of a national court giving such an order.
One of us went to the Court of Appeal to attend the reading of the judgment. It was an
Indian summer morning, unusually warm for the time of the year. Supporters of the claimant,
the environmental NGO Urgenda (portmanteau for ‘urgent agenda’), had come in large
numbers, as had journalists covering climate change. Waiting for the doors to open, all
present were nervous even the Court staff who had to make sure everyone would fit in the
courtroom.
Throughout the half hour that the Court Chamber’s president took to read a summary
of the judgment, people sighed with relief when she just like the lower court fully
acknowledged the dangers of climate change; jurists had surprised looks on their faces
hearing that the appellate court in contrast to the 2015 decision based its decision on a
direct application of Articles 2 and 8 European Convention of Human Rights (ECHR); and
everyone applauded, laughed and some even cried after the president finished by sustaining
the 25% reduction order.
Less enthusiastic comments, from several eminent Dutch administrative and
constitutional law professors, dominated the national media during the week that followed.4
To their mind, the judgment did little to abate fears for, as a Dutch constitutional law
expression goes, judges ‘sitting on the chair of the government’: The Court would have
exceeded its adjudicative powers at the expense of the other branches of government.
Meanwhile, it is far from evident that the State will reach the 25% reduction in 2020
mandated by the Court. In the next few weeks, suggestions of how to achieve it ranged from
closing coalfired electricity plants to stimulating nuclear energy. To top it all off, the
government has stated that it will appeal the judgment to the Supreme Court, again for the
principles reason that it would have infringed the powers of the political branches of
government.5
In other words, the controversy regarding the Urgenda case, which already began
before the 2015 decision, is alive and kicking.6 In the meantime, the first instance decision
has already inspired many foreign climate lawsuits.7 The Urgenda case therefore has both
theoretical and practical, national and transnational significance, warranting careful analysis.
The judgment, written in exceedingly clear language, takes a more straightforward
line of reasoning than the lower court -- at times perhaps too straightforward, to the point of
making itself vulnerable to the critique that it is cutting corners without proper motivation.
Motivation aside, however, we believe that the core of the judgment withstands the withering
critiques of unconstutionality. The Court of Appeal takes four crucial steps to reach its
decision, in addition to many supporting arguments worth mentioning in their own right.
In this contribution, we devote a section to each of those four steps: the legal standing
of Urgenda and, as a result, the admissibility of the ECHR claims (§1); the applicability of
Articles 2 and 8 ECHR to, and their proper interpretation in the context of, the dangers of
4 Inter alia 2018; Breebaart 2018; Boogaard 2018; Jong 2018; Hommes 2018; Leijten 2018.
5 Ministerie van Algemene Zaken 2018.
6 Just like Tim’s daughter Halina who was born in the week the Appellate Court rendered its Urgenda decision.
7 For a sophisticated analysis of the transnational links between climate lawsuits, see Colombo 2017.
Electronic copy available at: https://ssrn.com/abstract=3314008
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climate change (§2); the factual relevance attached to (semi-)legal sources in the context of
the private law character of the case and the dismissal of the State’s objections (§3); and, in
light of the previous steps, the rejection of the State’s separation of powers argument (§4).
1. The admissibility of Urgenda’s claims
1.1. Direct applicability of the ECHR
In the upheaval surrounding Urgenda's initial victory three years ago, it was quickly forgotten
that the District Court had ruled against the NGO on a major procedural point: it held
Urgenda's claims based on direct application of the ECHR to be inadmissible.
This decision caused the District Court to veer off into uncharted and complicated
territory. That is, in the Dutch civil code, Article 6:162 distinguishes between three types of
tortious acts: 1) violations of someone else’s right/entitlement; 2) an act or omission
breaching a duty imposed by law; and 3) an act or omission in violation of what according to
unwritten law is deemed fit in societal interrelations. Without the directly applicable ECHR
articles, the court could not go for the ‘simple’ torts of type 1 or 2.
Instead, the District Court turned to tort type 3. Dutch case-law consistently held that
a violation of ‘what according to unwritten law is deemed fit in societal interrelations’
includes hazardous negligence. The District Court said that the State acted hazardously
negligent in aiming for a target of less than 25% reduction by the end of 2020. To come to
this verdict, it applied Articles 2 and 8 of the ECHR ‘indirectly’, together with an intricate
web of international and EU law as well as a national constitutional duty of care.8 All these
sources would ‘reflect’ through the mirror of the private legal duty not to act hazardously
negligent contained in Article 6:162. The ECHR-norms, after first having been set aside,
returned as ‘sources of inspiration’ in this rickety contraption.9
It is common practice in the Netherlands for Courts to interpret national law
consistently with international law, even when that international law lacks direct
applicability. This practice is known as the ‘reflex effect’ in Dutch legal lingo.10 Yet the
unprecedentedly complicated construction in Urgenda led the State and others to make
scathing remarks about the District Court stretching this concept to breaking point.11
Why then had the lower court concluded to the inadmissibility of Urgenda’s ECHR-
claims, and made its life so difficult? It appears to have come under the impression that it had
to apply the criteria for the admission of a case to the European Court of Human Rights
(ECtHR). Given that Article 34 ECHR restricts claims by NGOs to violations of which they
are personally a victim, it was hard to see how Urgenda could itself be seen as a potential
victim of climate change. ‘After all,’ the district court reasoned, ‘unlike with a natural person,
8 Article 21 Dutch Constitution.
9 District Court, 4.46. Critical is Gijselaar 2015.
10 ‘Reflexwerking’ in Dutch.
11 Pleadings of the State, 1.22-1.26.
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a legal person’s physical integrity cannot be violated nor can a legal person’s privacy be
interfered with’.12
Despite its extraordinary win, Urgenda took the step to specifically appeal the
judgment on this point, and it paid off. The Court of Appeals declares Urgenda's claims based
on Articles 2 and 8 ECHR admissible. This set the Court on a much more straightforward
path, albeit to achieve the same outcome: the order to reduce at least 25% of greenhouse
gasses emissions by the end of 2020.
In support, the Court of Appeals notes it is irrelevant for Urgenda’s admissibility
before Dutch courts, that Article 34 ECHR does not accept an actio popularis as a rule of
standing for the Strasbourg Court: ‘Such would not be possible. This is for the Dutch
judiciary to decide. This means that Article 34 ECHR cannot serve as a basis for denying
Urgenda the possibility to rely on Articles 2 and 8 ECHR in these proceedings.’13 The Dutch
rules do provide for class actions of interest groups, in Article 3:305a of the Civil Code.
To pursue a civil claim, Article 3:303 Civil Code requires a ‘sufficient interest’. This
must be an interest of a legal subject, whether the legal subject herself is pursuing the claim
or whether an NGO does so on her behalf.14 The appellate court thus reasons: ‘Since
individuals who fall under the State’s jurisdiction may invoke Articles 2 and 8 ECHR in
court, which have direct effect, Urgenda may also do so on their behalf.’15
1.2. Future generations and people abroad
On first instance, the lower court had remarkably stated that Urgenda itself could invoke
interests of both people outside the Netherlands and future generations, since its internal by-
laws stipulate that the NGO strives for ‘a sustainable society, beginning in the Netherlands,’
and since sustainability has an inherent intergenerational element.16 Yet the unborn are in
principle no legal subjects under Dutch law,17 which makes it hard to see, under current law,
how their interest may constitute a sufficient interest to pursue a civil claim under Article
3:303. The State complained about this on appeal.
The appellate court circumvents the question and leaves unresolved whether NGOs
may defend the interests of (non-Dutch) future generations under Dutch civil procedural law.
It finds that the State has no procedural interest in objecting Urgenda’s admissibility in this
regard, since admissibility as such is already a given, for the current generation of Dutch
nationals.18
1.3. Uptake
The ECHR-claims being admissible may seem a small, intermediary step. Yet the
applicability of the ECHR-Articles does two important things for Urgenda’s case. First, it
brings on board the extensive case law of the ECtHR on Articles 2 and 8 relating to the
environment. The ‘incorporation doctrine’ requires national courts to interpret the ECHR in
12 District Court, 4.45.
13 Court of Appeals, 35.
14 See Bleeker 2018a.
15 Court of Appeals, 36.
16 District Court, 4.7-4.8.
17 Cf Article 1:2 Dutch Civil Code.
18 Court of Appeals, 37 (emphasis added).
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accordance with Strasbourg’s case law as res interpretata.19 Second, the appellate court
opens up the road to an argumentation that might be more readily acceptable for
constitutional lawyers than the construction built by the District Court.20 After all, the ECHR
has been directly applied by Dutch courts since the mid-70s. As we will argue in more detail
later, it makes the State's main source of indignation about the first Urgenda judgment -- that
the district court disrespected the trias politica less pressing: directly applying the ECHR
has been the bread and butter of the national courts for decades.
2. Articles 2 and 8 ECHR’s Duty of Care to Protect against Dangers of Climate Change
The Court of Appeals’ judgment has come under attack for making the move to read an
overly specific and far-reaching obligation to protect citizens from climate change into
human rights.21 Consequently, the question is whether the Court’s application of Articles 2
and 8 ECHR is the human rights revolution the commentators make it out to be, or whether it
is an application of a robustly developed case law to a new set of facts that was simply never
before submitted to a court of law?22
2.1. The Strasbourg standard for the prevention of future environmental dangers
The Court reminds us that the Strasbourg case law has since long included environment-
related situations in the protection offered by Articles 2 and 8. This also entails positive
obligations for the state to prevent future violations of the right to life,23 and ‘severe
environmental nuisances’24 to private and family life and the home.25 As the Court
summarizes: ‘A future infringement of one or more of these interests is deemed to exist if the
interest concerned has not yet been affected, but is in danger of being affected as a result of
an act/activity or natural event.’26 This has been uncontroversial since at least the 2004
19 This doctrine is usually traced back to Article 32 ECHR, according to which: ‘The jurisdiction of the Court
shall extend to all matters concerning the interpretation and application of the Convention…’ (emphasis added),
eg Gerards et al. 2013, p. 43.
20 Cf Besselink 2018.
21 Hommes 2018; Leijten 2018.
22 Defending the latter is Eckes 2018. This question is of extra importance, because some older case law of the
Dutch Supreme Court has been understood by some commentators to prevent Dutch courts from interpreting the
ECHR more generously than the European Court of Human rights. See X v Y, Dutch Supreme Court (Hoge
Raad), 10 August 2001, ECLI:NL:HR:2001:ZC3598 and discussion of potential consequences for Urgenda by
Leijten 2018.
23 Öneryildiz v Turkey, ECrtHR Grand Chamber, No. 48939/99, 30 November 2004, 89, 90 (‘deterrence against
threats’, ‘preventive measures’). Although the positive obligations of states under Article 2 and 8 include other
aspects as well, such as an obligation to stop ongoing nuisances and a procedural obligation to investigate, these
are irrelevant here, since Urgenda’s claim concerns the future conduct of the state.
24 Fadeyeva v Russia, ECrtHR Chamber, No. 55723/00, 9 June 2005, 64.
25 Fadeyeva, 89 (‘to assess whether the State could reasonably be expected to act so as to prevent or put an end
to the alleged infringement of the applicant's rights’); Brincat and Others v Malta, Nos. 60908/11, 62110/11,
62129/11, 62312/11 and 62338/11, 24 July 2014, 116 (‘to legislate or take other practical measures to ensure
that the applicants were adequately protected’).
26 Court of Appeals, 41 (emphasis added). There is some boldness in the Court converging Articles 2 and 8 into
a single norm. Arguably that is misguided insofar as the greater role that the concept of fair balance plays under
Article 8. For this point, see also https://verfassungsblog.de/the-dutch-climate-case-judgment-human-rights-
Electronic copy available at: https://ssrn.com/abstract=3314008
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Oneryildiz judgment.27 But does this case law’s interpretation of Articles 2 and 8 also apply
to environmental dangers of the nature of climate change?
On the one hand, although the judgments the Court cites in support all concern
environmental dangers of a smaller scale, with consequences for smaller numbers of people,
no indications can be found in the ECtHR’s case law that climate change would necessarily
be excluded from the scope of positive obligations under Article 2.28 As Eckes submits, the
Court of Appeals was simply confronted with a more fundamental environmental problem
than ever before. This in itself cannot be a reason not to apply existing law to new facts,
particularly considering the 'living instrument' doctrine of the ECHR.29
On the other hand, the Court should be criticized for failing to acknowledge more
explicitly that it is quite a leap from a state’s obligations concerning pollution by a single
leather factory,30 or waste site,31 to the consequences of climate change. Even more advisable
would have been for the judges to explain in more detail why they think this leap finds
support in these or other cases.32 Not doing so makes the judgment unnecessarily vulnerable
to cassation by the Supreme Court.
What the Court does recognize is that the case law holds that Articles 2 and 8 ECHR
have to be explained in a way that does not place an ‘impossible or disproportionate burden’
on the government. This means that governments can only be required to take actions that are
‘reasonable’, and only when there is a real and imminent threat the government knew or
should have known of. But despite these limitations, the Court points out, effective protection
of the rights may demand ‘early intervention’ by the government. In short, the Court
concludes, the following standard extracted from Oneryildiz must be applied: ‘If the
government knows that there is a real and imminent threat, the State must take precautionary
measures to prevent infringement as far as possible.’33
Once the real and imminent threat and the state’s knowledge thereof is factually
established, there is little wiggle room left not to take precautionary measures.34 But which
potential-and-constitutional-unease/. We do not pay more attention to this point because a violation of either
Article would be sufficient to arrive at the same verdict.
27 Referring to Öneryildiz v Turkey. As the emphasized part makes clear, the norm requires a factual assessment,
the importance of which we will get to in a moment.
28 Öneryildiz, 71 (‘The Court considers this obligation must be construed to apply in the context of any activity,
whether public or not, in which the right to life may be at stake …’). Cf also Eckes 2018.
29 Eckes 2018.
30 Lopez Ostra v Spain, ECtHr Chamber, No. 16798/90, 9 December 1994.
31 Öneryildiz v Turkey.
32 Human rights scholar Rick Lawson pointed us to a decision that the Court of Appeal could have invoked,
ECtHR Mastromatteo/Italy 24 October 2002, nr. 37703/97, in which it was considered whether the right to life
was violated when criminals on prison leave murdered the son of the applicant. Although no violation was
found, the ECtHR did deem this situation to fall within the scope of Article 2, which demonstrates this Article
does not require the State would know in advance specifically who or how many people would be at risk in the
absence of required preventive measures.
33 Court of Appeals, 43. Öneryildiz, 101.
34 Öneryildiz, 98 (‘a decisive factor for the assessment of the circumstances of the case, namely that there was
practical information available to the effect that the inhabitants of certain slum areas of Ümraniye were faced
with a threat to their physical integrity …’), 100 (‘neither the reality nor the immediacy of
the danger in question is in dispute’). For Article 8, some guidance can be found in Fadeyeva, 133 (‘there is no
indication that the State designed or applied effective measures which would take into account the interests of
the local population, affected by the pollution, and which would be capable of reducing the industrial pollution
to acceptable levels’).
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precautionary measures exactly? What role does the ‘wide margin of appreciation’ of the
state play? In the case law from Strasbourg, the factual situation that a state is or should be
aware of is decisive: if the nature of the threat dictates which particular precautionary
measures would be ‘necessary and sufficient’ to quell the danger,35 the state’s margin of
appreciation quickly diminishes. 36
Although some authors reproach the Court for minimizing the margin of appreciation,
and consequently for neglecting the trias politica, this critique arguably rests on a
misunderstanding of the concept. The margin of appreciation, at least in the European human
rights context, functions as a principle of subsidiarity dealing with the division of power
between the Council of Europe and the Member States, not with the division of power
between the executive and judicial branches within a Member State.37
2.2. Climate change: a real threat resulting in serious risk
Hence, the Court turns to the factual dangers posed by climate change, which it summarizes
as follows:38 dangerous climate change is caused by man’s emission of greenhouse gases;
manmade warming is already happening - up 1.1 degrees Celsius from pre-industrial levels
so far; if temperatures rise above 2 degrees Celsius it will have a range of catastrophic
consequences, both foreseeable and unforeseeable, costing hundreds of thousands of lives in
Western Europe alone;39 both worldwide and Dutch emissions of CO2 continue to rise40 at
speeds that are quickly moving toward the maximum ‘carbon budget’ of 450 parts of
greenhouse gas per million; and perhaps the most crucial fact for the application of Articles 2
and 8 of the ECHR to this case: ‘The longer it takes to achieve the necessary emission
reduction, the greater the total amount of emitted CO2 and the sooner the remaining carbon
budget will have been used up.’41 These facts are not (convincingly) disputed by the
government.
Considering all this, the Court finds it appropriate to speak of ‘a real threat of
dangerous climate change, resulting in the serious risk that the current generation of citizens
will be confronted with loss of life and/or a disruption of family life.’42
Thus, the Court considers that positive obligations of the State concerning ECHR-
rights might come at play in disputes about climate change. This is not entirely new. A
number of other recent and ongoing climate change lawsuits invoke Articles 2 and 8 of the
ECHR, for instance the so-called People’s Climate Case initiated last summer against the
35 Öneryildiz, 101 (‘it was impossible for the administrative and municipal departments responsible … not to
have known of the risks … or of the necessary preventive measures’). (emphasis added)
36 Court of Appeals, 42.
37 True, the ECtHR sometimes acknowledges that the margin of appreciation might have effect on the national
separation of powers, such as in the case Jane Nicklinson and Paul Lamb v United Kingdom, ECtHR, Nos.
2478/15 and 1787/15, 16 July 2015 yet this was in relation to formal legislation rather than to policy, the latter
of which is at issue in the Urgenda case.
38 Court of Appeals, 44.
39 Deaths caused by heatwaves and forest fires, for instance.
40 While Dutch CO2 emissions are still rising, total Dutch emission of greenhouse gases are falling. See also
Court of Appeals, 26.
41 Court of Appeals, 44, last bullet point.
42 Court of Appeals, 45.
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EU,43 and the case of the Klimaseniorinnen against the Swiss State.44 In the Swedish so-
called Magnolia case, two Courts even already have considered climate change related
complaints in light of Articles 2 and 8 ECHR, however without finding any violations.45
Moreover, only two weeks after the appellate decision in the Urgenda case, the
Human Rights Committee published its General Comment 36, holding that the right to life as
enshrined in the International Covenant on Civil and Political Rights (ICCPR) also includes
positive obligations for States to act against dangerous climate change.46 This General
Comment could serve as an argument for the Dutch Supreme Court to uphold the Urgenda
judgment. After all, the Netherlands has also ratified the ICCPR.
2.3. Preventing infringement ‘as far as possible’
Whether the Dutch State did violate these Articles and thus acted ‘unlawful’ under the
Dutch Civil Code - is the core issue of the case. Does it violate Articles 2 and 8 to reduce
greenhouse gas emissions with less than 25% by 2020? Or does a less ambitious target
remain within the range of precautionary measures that suffice to ‘prevent infringement as far
as possible’?47
In tackling this question one can observe the Court joining the human rights standard
with an approach to facts dictated by Dutch civil procedure. Before we can definitively
analyse whether the Court has stayed close enough to established human rights discourse to
refute the label ‘political’, therefore, we have to turn to the weighing of the facts.
3. Law, Facts and Civil Procedure
In Dutch civil procedure, like in most private law systems, courts base their decisions on
those facts agreed upon by the parties.48 If one party posits a fact and the other does not
(convincingly) argue against it, this fact is deemed true for the purposes of the procedure.
Urgenda and the State agree on a considerable amount of facts: not only everything
enumerated by the Court of Appeal in its paragraphs 4-26, but also everything the District
Court had observed in its paragraphs 2.1-2.78: the already described scientific consensus on
the dangers of climate change; the international and regional endeavours the Netherlands
engaged in to tackle these dangers; and what the State has so far done on the national level.
The parties agree on the end goal: ultimately, all greenhouse gasses should be phased out.49
43 Cf The People’s Climate Case claim at https://peoplesclimatecase.caneurope.org/wp-
content/uploads/2018/05/application-delivered-to-european-general-court-1.pdf.
44 Cf the Klimaseniorinnen claim at https://klimaseniorinnen.ch/wp-
content/uploads/2017/05/request_KlimaSeniorinnen.pdf.
45 Stockholm District Court (Stockholms Tingsrätt) 30 June 2017 Push Sverige, Fältbiologerna et al v Staten,
Magnolia; and Stockholm Court of Appeal (Svea Hovrätt) 23 January 2018 Push Sverige, Fältbiologerna et al v
Staten, Magnolia. The claimants chose not to go to the Supreme Court.
46 Human Rights Committee (2018) General comment No. 36 (2018) on article 6 of the International Covenant
on Civil and Political Rights, on the right to life
47 Court of Appeals, 43.
48 Article 149 Dutch Code of Civil Procedure.
49 Court of Appeals, 3.7
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The question is whether this implies that the Netherlands have to reduce already 25% in
2020, or whether a slower reduction path is also an option.50
3.1. 25 % as the unassailable minimum
The Netherlands has ratified the 1992 United Framework Convention on Climate Change
(UNFCCC) and, at the yearly conference of the parties (COP) to this convention, has
consistently subscribed to the importance of tackling climate change. During the last 10
years, the COPs have declared that developed countries (‘Annex I countries’, in UNFCCC
jargon) should all reduce emissions with 25-40%, compared to 1990 levels, by the end of
2020.51 This is necessary for global warming not to exceed 2 degrees Celsius compared to
pre-industrial levels a threshold that, if surpassed, is determined to imply serious dangers to
mankind.
It is important to note that, although the Court does consider both non-legal and legal
sources here, they are all presented as facts rather than as law. The Netherlands being party to
the UNFCCC and having advocated at COPs for developed countries to reduce 25-40% by
2020, serve as the factual basis for the Court of Appeal to assume that the Netherlands, like
all developed nations, has to reduce no less than 25%.
Commentators again criticise the Court of Appeal for unclearly applying the ‘reflex
effect’, albeit for different reasons than their critique of the District Court.52 Yet this is a
misperception of the appellate court’s reasoning. Unlike the District Court, the Court of
Appeals does not read the UNFCCC or the COP decisions into Articles 2 and 8 ECHR or into
Dutch tort law as binding.53 The Netherlands’ ratification of the UNFCCC and its support of
the COP statements, in the reasoning of the appellate court, has factual rather than legal
significance.
Although the outcome might have been the same had the Court of Appeal indeed
interpreted human rights consistently with international climate law and policy expressions,
procedurally the court is merely considering facts.54 This might also explain why the Court
does not even seriously analyse which of these sources are legally binding and which of them
are not. In fact, this is why it does not even discuss or mention the concept of ‘reflex effect’.
In other words, it is not engaged in some lewd circumvention of the limitations of
international norms’ domestic effect, it is simply applying Dutch civil procedure, as it is
bound to do.
3.2. Negative emissions
The State has tried to challenge the assumption that the facts leave it no choice but to reduce
50 Court of Appeals, 3.7-3.8
51 Court of Appeals, 50.
52 Besselink forthcoming.
53 For a general treatment of the authority of COP decisions and other ‘post-treaty rules’, see Tim’s forthcoming
monograph Authority and Legitimacy of Environmental Post-Treaty Rules (Hart Publishing 2019) and
‘Exercising or Evading International Public Authority? The Many Faces of Environmental Post-Treaty Rules’
(2016) 7 Goettingen Journal of International Law 303.
54 Facts of which it would be difficult to see how they could have been established differently in a public law
proceeding.
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10
25% at minimum, for it only wants to reduce 20% in 2020 compared to 1990 levels.55 The
State pointed to other, slower, reduction scenarios put forward by the scientific body of the
UNFCCC: the international panel on climate change (IPCC). These scenarios include so-
called negative emissions.56 That is, they assume that greenhouse gases may be distracted
from the atmosphere in the future, which would mean emissions may now be kept at higher
levels. Urgenda objected that effective negative emission techniques have not yet been
invented, which the state acknowledged. Moreover, the IPCC designed the reduction paths
the State invoked for the year 2030 rather than 2020.57 In light of these considerations, the
Court of Appeal finds that the State has not convincingly challenged the 25% target for 2020
as factually necessary to prevent climate change.
The Court notes that even with the scenario in which developed nations reduce 25-
40% in 2020, it is more likely than not that global warming exceeds 2 degrees Celsius.
Moreover, the 2015 Paris Agreement58 shows that global consensus is now: 1,5 rather than 2
degrees of warming is to be preferred in light of the dangers predicted by science.59 The State
knew about the 25-40% reduction goal for developed nations since 2007,60 so it cannot rely
on the defence that there is little time left until 2020.61
Another fact supporting the 25 percent minimum, is that the Dutch State, until 2011,
had set itself a 30% reduction goal for 2020. According to the responsible minister in 2009,
this was necessary to stay at a credible trajectory to remain below 2 degrees of global
warming.62 The State did not present any climate science related arguments when it later
lowered its reduction goal to 20%, nor has it motivated why this number would be ‘credible’
today.
In light of these facts, the court cannot do anything else than conclude that 25% is the
minimum for the State to live up to its duty of care regarding the protection of the right to life
and private life.63 Although ‘full scientific certainty regarding the efficacy of the ordered
reduction scenario is lacking’, the precautionary principle prevents the state from relying on
this as an excuse for refraining to take further measures.64 The margin of appreciation of the
state is limited to choosing the measures that it will take to achieve the target.65
3.3. Dismissal of the State’s other objections
The Court proceeds to concisely dismiss the other objections of the State.
55 Court of Appeals, 48.
56 Court of Appeals, 49.
57 Ibid.
58 This agreement was adopted in December 2015, a few months of the Urgenda decision on first instance,
delivered in June 2015. The Court of Appeal however, considers all facts up until the day of the hearing held on
28 May 2018.
59 Court of Appeals, 50.
60 Court of Appeals, 51.
61 Court of Appeals, 66.
62 Court of Appeals, 52.
63 Court of Appeals, 53.
64 Court of Appeals, 63. The Court refers to the case of Tatar v. Romania of the ECrtHR.
65 Court of Appeals, 74.
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11
The first objection is that the 25% order would prevent the Netherlands to effectively
engage in the European Trading Scheme (ETS) system, which only aims at a 20% reduction
for certain sectors of industry.66 As observed by several academics, however, this EU system
is one of minimum harmonisation, it does not prevent Member States to reduce more.67 The
appellate court is therefore not convinced of this argument.68
The State also argued that the 25% minimum for the Netherlands would not make
sense, as this would create space for other countries in the ETS to emit more the so-called
waterbed effect. However, the court notes, this argument mistakenly assumes that other
nations would use all the allowances for emissions under the ETS, which is clearly not the
case, as inter alia Germany, the UK, Denmark and France reduce significantly more than the
Netherlands.69
Also, the State failed to substantiate the risk of ‘carbon leakage’ - i.e. the risk that
polluting industries would move to other countries than the Netherlands, continuing to pollute
there. And to the extent that the State wanted to rely on a diminishing level playing field for
industry, the Court says not to understand why such would be contrary to any rule of law, and
again points to the more stringent climate policies in other ETS-states.70
The court notes that the Netherlands in the meantime has adopted a 49% reduction
goal for 2050, so apparently the State itself is not truly restrained by the waterbed effect nor
by carbon leakage.71
The State additionally argued that adaptation and mitigation measures are
complementary, but the court notes that, although adaptation measures probably will be
necessary to protect people in the Netherlands, these cannot prevent dangerous climate
change.72
The Court is neither convinced of the State’s argument that the goal of 25% applies to
developed nations as a whole rather than to the Dutch State.73 Furthermore, the State’s
contention that the Netherlands contributes relatively little to global emissions and that there
is not sufficient causality between Dutch emissions and global climate change fails: whereas
for finding damages, causality needs to be proven, Urgenda’s claim merely aims at stopping
unlawful behaviour.74 Hence, only unlawfulness and not causality to specific damages need
to be proven under Dutch tort law.75
Moreover, if this reasoning of the State would be followed, an effective remedy
against a global problem like this would be lacking, says the Court: every State could then
argue to have no obligations until other nations start acting. This consequence cannot be
accepted, if only since Urgenda is unable to bring all States in the world before the Dutch
courts.76
66 This point was also made by Peeters 2014, 2016; Thurlings 2015.
67 De Vries and Somsen 2016; Roy 2017.
68 Court of Appeals, 54.
69 Court of Appeals, 55-56.
70 Court of Appeals, 57.
71 Court of Appeals, 58.
72 Court of Appeals, 59.
73 Court of Appeals, 60.
74 Court of Appeals, 61-64.
75 Bleeker 2018b.
76 Court of Appeals, 64.
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Lastly, the Court devotes some considerations to the argument of the State, that an
order to reduce 25% would violate the constitutional separation of powers, or trias politica.
Since almost all the critique towards the Urgenda case is linked to this argument, we devote
the next section to this intriguing issue.
4. Separation of powers
Entire dissertations could be written on the question whether the Urgenda decisions are too
political to meet the threshold of legitimacy.77 Most critiques of the two judgments ultimately
converge around this question, from many different perspectives. We will therefore not state
a final word on this issue in the present case-note.78 We would however like to pay attention
to three points: firstly, what the District Court and the appellate court respectively said on the
separation of powers. Secondly, whether the appellate judgment has overstepped legal limits
that, added up, amount to an infringement of the constitutional division of powers. Thirdly,
whether the Courts should still have refrained from giving an order in this case, even when
assuming the remainder of the reasoning would be legally correct, because of the political
question doctrine.
4.1. The Courts’ considerations
The District Court in 2015 almost lectured on the separation of powers concept in the
Netherlands.79 The core of its exposé is that there is a division and balance of powers rather
than a sharp separation, and that courts are under an obligation to do no more and no less than
to apply the law, including in cases against the government, while abstaining from policy
considerations. Courts should be aware of the difference between deciding a two-party
dispute on the one hand, and adopting policies for society at large on the other, and should be
very restrained when its orders are likely to affect third parties. Yet the mere fact that a
judicial decision has political consequences and may strike through legislative proposals,
cannot inherently prevent such a decision. The court also points out that the judiciary is no
less a democratic institution than parliament and the government. The power of the judiciary
to review government acts against international and national law is based on democratically
adopted legislation.
The Court of Appeals is more concise, which can in part be explained by the different
legal reasoning it adopted. As described above, rather than reading climate change
obligations into a private legal duty of care (as the District Court did), the appellate court
directly applied the fundamental rights to life and family life of the ECHR. Since such direct
application of international (human rights) law is an accepted avenue for courts to legitimize
interference with other branches of government, lengthy explanations on the doctrine of the
trias politica are less needed.
77 As testified by Laura’s PhD thesis to be, covering various climate cases litigated in European private law.
78 For instance, we will not discuss the many threats and warnings of the practical effects of the judgment, such
as the impossibility for the Court to deal with a failure to implement the judgment, or a decreased willingness of
the State to conclude or support international agreements and declarations.
79 District Court 4.94-4.102.
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The Court of Appeal first dismisses the argument that it would order the State to
adopt legislation, something which Dutch courts may not do.80 It is most probable that
parliamentary legislation is not necessary to achieve the 25% target, it says, and even insofar
as such legislation would be necessary, the Court refrains from dictating its substance.
Therefore, in the Court’s view, an order to adopt the reduction target of 25% is not an order
to legislate; it does not clash with the legislature’s prerogative to law-making.
The Court of Appeals then devotes a mere three sentences to the issue of separation of
powers specifically:
This defence fails. The Court is under an obligation to directly apply provisions with
direct effect of treaties to which the Netherlands is a party, including Articles 2 and 8
ECHR. After all, such provisions form part of the Dutch legal order and even take
precedence over Dutch laws that deviate from them.81
In other words, direct application of international law is the Court’s constitutional duty. This
may come across as an overly simplistic and even somewhat arrogant disdain for the public’s
concern for this issue. Critics scold the Court for failing to acknowledge and motivate the
unprecedented scale of its decision.82 The Court however does state:
Incidentally, the Court acknowledges that, especially in our industrialised society,
measures to reduce CO2 emissions are drastic and require financial and other
sacrifices but there is also much at stake: the risk of irreversible changes to the
worldwide ecosystems and liveability of our planet.83
The Court recognizes the unusual impact of its decision, but simultaneously it shifts the
perspective of the case from legislative decision-making to that of the duty of any court to
deliver an effective remedy when individual rights are breached.84 Opposite the question
whether it is for the Court to push the government towards action, it places the question
whether it is lawful for the government to adopt life-threatening policy without convincing
reasons.85 We will return to this balancing act while discussing the political question doctrine
below.
4.2. Did the Court overstep the separation of powers by misinterpreting the law?
The Court's direct application of human rights as such is not controversial. But, of course,
this is not what the State and its supporters dispute. It is not the application but the
interpretation of the ECHR articles that allegedly intrudes the territory of the government.
The Court would therefore have been wiser to repeat more clearly why it thinks its
80 This was decided by the Supreme Court in the Waterpakt case. Supreme Court of the Netherlands (Hoge
Raad) 21 March 2003 Waterpakt v State of the Netherlands ECLI:NL:HR:2003:AE8462.
81 Court of Appeals, 69.
82 Boogaard 2018.
83 Court of Appeals, 67.
84 Cf Articles 6 and 13 ECHR, Art 47 CFREU.
85 Cf also van den Berg 2017.
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interpretation of the ECHR Articles is mandated, and as such deflects separation of powers
objections.
Yet, as our assessment so far suggests, it is difficult to pinpoint where the Court has made
an obvious legal error. This is certainly so in regard of civil procedure, but also its
interpretation of Article 2 ECHR.86 The Dutch Supreme Court might refer the case back to
another Court of Appeals for better motivation, but is highly unlikely to overturn the dictum
that human rights necessitate protection by the state from dangerous climate change. Since
the Supreme Court deals only with questions of law, not with questions of fact, we also do
not see how it could rule differently on the establishment of the factual minimum of 25%
necessary to prevent climate change dangers.
The charge that Articles 2 and 8 have never been applied to an environmental issues of
the scope and scale of climate change,87 is not convincing either. The law should apply to
comparable situations, be they smaller or larger in scale.88 It is hard to understand why the
number of people endangered should have an impact on the applicability of international
human rights law. On the contrary, with a larger scale threat, one would expect more
protection rather than less. Again, the Court could have motivated this in more detail.
Another objection attacks the Court’s preference for one reduction scenario over the
other; it should rather have recognized that all these scenarios can be equally effective
making a preference for any of them subject to political choice.89 Yet as the Court repeatedly
points out, the equal effectiveness of all those scenarios has not sufficiently been
substantiated by the State.90
In this context, it is good to note that the IPCC is a scientific body delivering descriptive
rather than prescriptive models. Its models including negative emissions do not equal an
advice to go for negative emissions. They rather show that if we let emissions rise above a
certain concentration, the only way to still mitigate sufficiently is to rely on (at present not
invented) negative emissions techniques.
The worry that judges are unable to weigh scientific climate evidence falls flat too.91
Judges rely on expert evidence all the time, this time on IPCC reports encompassing all
available climate change science, reports also relied upon by the State.92
4.3. Should Courts sometimes refrain from delivering legally correct decisions?
By now it must be no longer a secret to the reader that we are of the opinion that the Court’s
application of the law is correct. Yet critics seem to suggest that even when otherwise legally
correct, there is nevertheless a legal doctrine or principle according to which the Court must
refrain from reaching judgment, or at least from issuing an order. Should it not have stopped
at merely finding the State to be in violation of the law, without ordering it to remedy that
86 More doubt remains with regard to the Court’s treatment of Article 8 ECHR, implying that it contains the
same standard as Article 2.
87 Hommes 2018.
88 Cf Eckes 2018.
89 Hommes 2018.
90 See §3.2.
91 Enneking and De Jong 2014; Elbert De Jong 2015; Roy and Woerdman 2016.
92 Cf Eddy Bauw in De Jong 2018.
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violation?93 Or should it have even refused to take the case at all? In other words, the
separation of powers argument would then be a separate legal principle that may be violated
even when a Court otherwise neatly applies the law: the political question doctrine.
In its United States version, this doctrine dictates courts to refrain from adjudicating
certain issues that are within the exclusive purview of the executive. Dutch private law also
recognizes some form of the doctrine, even using the English term for it. But it does not
figure prominently in the Dutch case law and is interpreted much more narrowly than its US
counterpart.
During oral argument, the State indeed argued that this case ‘goes to the heart of the
political question doctrine.’94 The Court of Appeals does however not engage directly with
the doctrine in so many words, nor does it discuss the criteria for its application.
The Dutch version of the doctrine has however been reiterated in a recent decision of
the Amsterdam District Court, in a case concerning the consequences of the impending
Brexit for the EU citizenship of UK nationals.95 That judgment provides three criteria: (1)
Does the constitution attribute the competence to deal with a certain task or subject matter to
one particular branch of government other than the judiciary?96 (2) Do sufficiently clear and
objective criteria exist to arrive at a legal decision? (3) Would a judicial decision get in the
way of the possibility for another competent branch of government to arrive at a political
solution of the matter? The mere fact that the procedure concerns sensitive political issues is
not conclusive, and the threshold for the criteria is not easily met.97
In the Brexit-decision, the Amsterdam court reasoned that the claimants sought
judicial protection of their fundamental rights, which - echoing the District Court in the
Urgenda case - is precisely the task the constitution charges courts with. The circumstance
that the future existence of these rights is currently subject to political negotiations does not
alter this.98 Postponing a decision about the protection of the fundamental rights of these
persons until after political negotiations conclude could cause irreparable harm.99
Applying these criteria to the Urgenda situation, the first one - division of
competences - is fulfilled because fundamental rights protection is the primacy of the courts,
and most likely no-one would argue that climate change as a subject matter is the exclusive
provenance of the executive branch in the way that the military and foreign policy are. The
second hinges on one’s acceptance of the Court of Appeals’ previously discussed human
rights reasoning.100
As to the third criterion - disturbing the political process - we would observe that,
when it comes to reductions per 2020, there is not really a political decision-making process
ongoing anymore. The State was no longer pondering which course of action to take until
93 As argued by Boogaard 2016.
94 Pleadings of the State, 1.18, 3.12; Court of Appeals, 30.
95 District Court of Amsterdam, X c.s. v Staat der Nederlanden en Gemeente Amsterdam (Citizenship after
Brexit), 7 February 2018, ECLI:NL:RBAMS:2018:605.
96 This concerns topics such as defense policy or foreign policy where the Court cannot oversee all interests and
information. For an example, see Supreme Court of the Netherlands (Hoge Raad) 29 November 2002 Danikovic
c.s. v State of the Netherlands.
97 Citizenship after Brexit, 5.3, 5.4.
98 Citizenship after Brexit, 5.8, 5.9.
99 Citizenship after Brexit, 5.7.
100 See §2.
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then (although the Urgenda judgments have of course changed this). The State had already
decided which action to take until then. The current negotiations, following the world-famous
polder model,101 are all aimed at reductions per 2030. A court decision about reductions per
2020 therefore does not intervene in an ongoing political process, but adjudicates the
outcomes of a political process that has already concluded.
Apart from that, the third element is, in essence, a balancing act. It ultimately poses
the question whether there are situations in which fundamental rights protection should be
trumped by the interest in an unencumbered political decision-making process. This
balancing act, while the Court does not explicitly tackle it in terms of the political question
doctrine, can be found all over the judgment.
The Court’s concluding considerations are a case in point. The indications that the
Dutch policy until 2020 is insufficient to prevent dangerous climate change, are simply too
overwhelming for the court to ignore. It cannot leave options on the table that would create
an unacceptable increase in this risk.102 At the same time, it leaves the State full freedom
which measures to choose in achieving the 25% reduction. And because of new methods of
calculation, the State is in fact only 2% behind the target, which makes the policy changes
that the Court mandates relatively small.103
Naturally, balancing two interests against each other, as is quite common in human
rights protection, remains subject to discussion. In all ‘hard’ cases, it is possible to find
arguments to let the balance swing either way. We believe that the Court has convincingly
supported its decision to swing the balance towards safeguarding the right of Dutch citizens
to effective protection against climate change.
101 A Dutch style of decision-making aimed at consensus.
102 Court of Appeals, 72.
103 Court of Appeals, 73.
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... This stems from the question of separation of powers, which is evident in both Urgenda and Juliana. Some legal scholars have criticized the Dutch Supreme Court's decision in favour of Urgenda as overstepping its constitutional boundaries and disregarding separated powers (Burgers et al., 2019;Huang & Tigre, 2016). Other analyses of the case have supported the Court's action but contention remains. ...
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This article situates the judgement of The Hague District Court in Urgenda Foundation v. the Kingdom of the Netherlands within the life of global climate change litigation. To do so, the paper concentrates on the legal particulars of Dutch law, elements of ‘diffused’ jurisprudence from other jurisdictions, and the reasoning of the judgement that is ‘diffusible’. Firstly, the Court’s mandate for the State to take more robust and immediate climate mitigation action was informed by particulars of Dutch civil and constitutional law. Such particulars assisted with crossing the hurdles of standing of Dutch citizens in a climate change case, and the imposition of liability on the State for transboundary harm. Second, in relation to the separation of powers, there is clearly a marriage of ‘diffused’ jurisprudence from other jurisdictions and Dutch legal particulars, with the primary effect of providing Connecticut v. AEP a second life. Third, aspects of the Court’s reasoning are ‘diffusible’ or amenable to transnational borrowing. Notable in this regard is the Court’s adoption of a procedural version of the precautionary principle, whereby the onus of proving adequacy and effectiveness of climate policy is shifted onto the State. However, caution must be exercised in adopting the Court’s reasoning as to why the international (namely the IPCC) is identified as a preferred benchmark for allocation of climate targets as against the supranational (namely the Effort-Sharing Decision of the EU), and the implicit economic reasoning as to why the State’s policies are ineffective. To overcome this problem, it is suggested that the appointment of experts by judicial bodies may be the way forward.
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The remarkable decision of a Dutch lower civil court ordering the State of the Netherlands to reduce its greenhouse gas emissions by 25% by 2020 compared to 1990 levels has attracted ample attention across the world. The court decision deals with the fundamental question of the extent to which a civil court can intervene in environmental decision making, particularly where this concerns the national policy of a European Union (EU) Member State. This case note considers the court decision from an EU law perspective. Although from an environmental perspective ambitious climate action is to be very much praised, several critical legal issues merit scholarly discussion, particularly regarding the competence of the Dutch court to decide the case, the need for a preliminary reference to the Court of Justice of the European Union, the right understanding of complex EU climate law, but also regarding judicial activism and the way climate science is used in courtrooms.
De constitutioneel meer legitieme manier van toetsing: Urgenda voor het Gerechtshof Den Haag
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Besselink L (2018) De constitutioneel meer legitieme manier van toetsing, Urgenda voor het Gerechtshof Den Haag. Nederlands Juristenblad NJB 41:2151-2194
Urgenda en de rol van de rechter. Over de ondraaglijke leegheid van de Trias Politica
  • G Boogaard
Boogaard G (2016) Urgenda en de rol van de rechter. Over de ondraaglijke leegheid van de Trias Politica. Ars Aequi 65:26-33