New Internationalist

Environmentalists 1, Dutch Government 0

Climate change protest Amsterdam [Related Image]
A climate change protest in Amsterdam. Jos van Zetten under a Creative Commons Licence

At what point should judges, and not politicians, take control of a country’s political agenda? For many of us, the idea of unelected officials wrestling control from a democratically elected government is a sinister, unthinkable scenario. But what about when that government fails to protect its own citizens? And what about when lawmakers act as agents of the citizens themselves?

These questions are now up for debate in the Netherlands, where a landmark court case is causing ripples throughout the legal, political, and activist communities.

In June 2015, the Dutch government was successfully sued by environmental NGO Urgenda for failing to tackle greenhouse gas emissions. Representing 886 concerned Dutch citizens, Urgenda pitted one institutional powerhouse against another and used the law to chastise its own government. Eventually, a Hague judge ruled in the NGO’s favour and ordered the Dutch government to cut greenhouse emissions by 25 per cent by 2020.

The Urgenda case has made history: it is the first time that human rights have been cited as a legal basis for protecting citizens from climate change. It has also, however, ignited a furious debate around who should be setting a country’s political agenda and what citizens can do when their own government fails to protect them.

In the short term, the Urgenda case has been cited as both an inspiration and a touchpaper by concerned citizens around the world. It was praised by Natalie Bennett (leader of the Britain’s Green Party) and it has become a source of inspiration for activists in Norway, Belgium and Australia, who are currently considering their own legal challenges.

However, the wider implications of the Urgenda case will take a while to be understood.

On 1 September, the Dutch government announced that it would appeal against the court’s ruling. In a letter to parliament, Deputy Minister for the Environment Wilma Mansveld explained that the government will comply with the court’s ruling until the case is reheard but: ‘The government is seeking to determine how much control judges can have over the future policies of the state.’

Urgenda director Marjan Minnesma immediately released a statement saying that the NGO was confident the appeal will not be upheld, concluding: ‘We have been waiting for political leadership on this topic for a very long time.’

The notion that time is running out on climate change, with governments dragging their feet on the issue, was revisited by parliament at a hearing on climate change on 10 September. The hearing asked a panel of 5 lawyers (including Urgenda’s lawyer) to examine the consequences of climate change and the legal and constitutional implications if a government failed to act on it.

Lucas Bergkamp, a professor of International Environmental Liability Law and a member of the panel, argued that allowing the courts to compel a government to create new legislation could open the door to a totalitarian state.

‘When you see this [the Urgenda case] as a serious ruling by a Dutch court, then the law is on its head, because then the judge determines the policy and not politicians.’

For theorists like Bergkamp, this entire debate begins and ends with the fact that, in a democracy, politicians and not judges should be deciding political legislation. <

But activists argue that this deliberately overlooks the issue of a government’s duty of care to its citizens. Analysts have suggested that Dutch politicians created a legal and moral trap for themselves when they recognized the climate change science of the International Panel on Climate Change (IPCC).

A scientific investigative body, supported by the UN, the IPCC released a report in 2007 which claimed that a 2-degree-Celsius rise in global temperature would endanger the ecosystems humans depend on – meaning that between 25 and 40 per cent of emissions need to be cut by 2020. By accepting the findings of the IPCC, but failing to act upon them, the Dutch government was left vulnerable to a legal challenge by its citizens.<

Any government that acknowledges the science presented by the IPCC is also acknowledging the potential threat of climate change. As the IPCC has offered a quantifiable measure for tackling climate change, it has become easier for activists to identify whether their own governments are failing to take climate change seriously.

If the Dutch government loses its appeal, it will have to continue complying with the stipulations of the Urgenda case or risk international condemnation and a reduction in the perceived power of the Hague courts.

At an international level, politicians and environmental activists are well-advised to consider the bigger question at stake: other than the courts, what recourse do concerned citizens have when their own governments fails to appreciate the dangers of climate change?

Until this question is answered, activists will continue to take inspiration from the Urgenda case and the Dutch government will have to outline the steps it is taking to combat climate change. Given that the Netherlands has one of the worst track records in the developed world for reducing greenhouse emissions, this seems unlikely.

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