ISSUE 11-20-21 CHILDREN’S CLIMATE CRISIS LAWSUIT AGAINST U.S.

A similar lawsuit brought an almost opposite result in the Netherlands.

A non-profit group, Urgenda Foundation, sued in 2015 insisting that the Dutch government was failing to protect its citizens from climate change risks. Urgenda argued that the government’s initial emissions reduction targets were too low, based on the United Nations’ Intergovernmental Panel on Climate Change.

The court in The Hague found that anything less than a 25 to 40 percent reduction in Dutch greenhouse gas emissions by the end of 2020 would not be sufficient to prevent dangerous climate change, and therefore constituted a breach of the government’s duty of care for it citizens.

The court ordered the Dutch government to assure that greenhouse gas emissions to the atmosphere were reduced by at least 25 percent compared to 1990 levels by the end of 2020.

In its online article a year ago, Cambridge University Press published the following legal summary of the case status.

“The judgment in State of the Netherlands v. Urgenda Foundation marks one of the first successful challenges to climate change policy based on a human rights treaty.

“In this case, the Dutch Supreme Court upheld the lower court’s opinion that the Netherlands has a positive obligation under the European Convention on Human Rights (ECHR) to take reasonable and suitable measures for the prevention of climate change. Although the Supreme Court recognized that climate change is a consequence of collective human activities that cannot be solved by one state on its own, it held that the Netherlands is individually responsible for failing to do its part to counter the danger of climate change, which, as the Court affirmed, inhibits enjoyment of ECHR rights.

“In reaching that conclusion, the Supreme Court determined the exact level of greenhouse gas (GHG) emissions reduction that the Netherlands is required to meet to comply with its ECHR obligation, specifically, a 25 percent reduction compared to its 1990 level by the end of 2020.…

“The Supreme Court’s reasoning on partial responsibility is at loggerheads with the latest understanding of the U.N. Framework Convention on Climate Change (UNFCCC) as reflected in the Paris Agreement, which declared that a state’s individual obligation is to be determined on the basis of respective national circumstances.

“While each member state is obligated to mitigate the adverse effects of climate change within its own jurisdiction, this obligation is solely to take the best possible ambitious actions to mitigate climate change with the ‘aim to achieve global peaking of GHG’ as set forth in the state’s ‘nationally determined contribution.’ Contrary to conceptualization by the Court, individual state obligations under the Paris Agreement adopted within the framework of the UNFCCC are not understood as a part measured against the whole. For the Paris Agreement, the obligation is not premised on any direct causal link between a state’s emissions and the individual obligation of reduction. Nor does violation of the Paris Agreement give rise to state responsibility for not doing its part as ‘allocated’ based on the particular ‘total’ GHG amount to be reduced.

“While the Paris Agreement’s temperature target is collectively pursued by the member states, it is neither legally linked to nationally determined contributions nor used as the threshold to evaluate the lawfulness of the content of a state commitment. Hence, even if one accepts the proposition that “‘partial fault’ also justifies partial responsibility”, this argument cannot be extended to individual obligations based upon the UNFCCC without creating divergences between obligations applicable to climate change.

“In identifying insufficiency of measures as a violation of the ECHR, the Court ruled that ‘25 percent compared to 1990’ is the bottom line of lawfulness for the Netherlands by reasoning built upon its interpretation of the UNFCCC. Yet, as is alluded to above, the UNFCCC explicitly avoided defining an individual lowest rate of reduction as an international legal standard.…

“Given ongoing and future litigation across the world, it may not be long until we hear what other courts and tribunals think of the Court’s judgment.”