Essay: Dangerous climate change

How can the Dutch state contribute in the best way possible to move towards a viable prevention system to prevent dangerous climate change?
When nature speaks, humans can only listen.
Introduction
Human intervention has caused an increase of the temperate, which would have catastrophical consequences by inaction. Resolution 10/4 2009 of the UN Human Rights Council points out that a climate change of more than 2 degrees poses a threat to all humans and their health. It would lead to significant changes in ecosystems, sea level rises, diseases etc. Article 4 of the United Nations Framework Convention on Climate Change (UNFCCC) is recognizing commitments that parties have to undertake in order to take measures necessary to mitigate climate change. Article 4 UNFCCC points out that adaption is necessary by developing appropriate and integrated climate change plans on a national and regional level. These adaption measures are necessary in order to prevent threats such as; health-, food- and environmental security threats.
Throughout developments in international-, European-, domestic law and case law countries are accountable for their contribution of creating dangerous climate change. Fossil fuel extraction, emissions of greenhouse gases and pollution has led to a political and moral catastrophe. States are in no position to ignore what is referred to as one of the biggest challenges facing mankind in the coming years. The rising temperate, floods, droughts, melting ice cap that raised sea levels are just a few examples to indicate there all States need to take action. Government are in violation with international-, environmental-, tort- and human rights law. The reality of climate law liability is a certain amount of inadequacy or speed of international action on the occurring changes in the climate. The increasing focus on liability implicates the involvement of a broad range of actors; governments, industry, business, NGOs etc. This paper aims to answer the following question as adequately as possible;
How can the Dutch state contribute in the best way possible to move towards a viable prevention system to prevent dangerous climate change?
This paper will not discuss the differences in jurisdictions across the world, but will focus on the Dutch legal system in relation to the prevention of dangerous climate change. The Dutch government cannot prevent dangerous climate change by itself, but can certainly make efforts to contribute in the best way possible. Firstly the environmental protection in the Netherlands will be discussed. After that the way ‘danger’ can be perceived and what added value it has to dangerous climate changes. Further on, the international, European and national legislation towards climate changes will be covered. Especially the Urgenda Foundation case against the Dutch government will be looked into. In the end, the future action on which the Dutch government can base its future policies on, will be discussed.
The environmental protection in the Netherlands
The Dutch State has been invested in the protection of the environment since 1875. Ever since the State has adopted several legislation to act upon the different ray of climate issues.
The very first legislation that came into existence was the Nuisance Act in 1875. After a while, in 1958, the State adopted the Act on Marine Oil Pollution. Between 1960 and 1980, the amount of specialized legislation increased significantly. In 1962 the Pesticides and Herbicides Act was adopted, after that the Nuclear Energy Act (1963). A specific Water pollution Act was enacted in 1969, after which the Act on Air pollution (1970), Act on Chemical Waist (1976) and the Act on waste products (1977). In 1979 the Noise Nuisance Act and the Act containing general provisions on environmental hygiene got adopted. Now the Dutch State had a number of statutory environmental regulations, which were not coherent. In order to improve this situation, the Environmental management Act was adopted in 1993. In 1993 the Environmental Management Act was enacted. It contained general provisions for decision-making, enforcement and juridical review on specific environmental issues. Article 1.1a of the Environmental Management Act states the duty of care provision, meaning that every citizen should refrain from actions that are harmful to the environment.
Nowadays the basis for environmental protection is article 21 of the Dutch Constitution. It serves as a social right and not as a legal ground for a claim against the government. Yet, the Dutch State has used article 21 of the Constitution against citizens who were accused of environmental pollution. Furthermore, the Supreme Court accepted it as a legal ground, making it possible to invoke article 21 of the Constitution in a climate law case. The article is the primary article to hold the Dutch State responsible and accountable for dangerous climate change. The Dutch legal framework will be further discussed in this paper, along with European and international law. Before that, the notion of ‘dangerous’ climate change will be described. The element of danger will be viewed on from external and internal definitions of danger, after which the legal framework that is trying to prevent and mitigate this dangerous climate changes will be discussed.
Dangerous climate change
In order to fully comprehend the extent to which the Dutch State can prevent dangerous climate change, it is important to point out what dangerous climate change is. There are two characteristics that give form to the definition for dangerous climate change: external and internal definitions of risk perceptions.
The external definitions of danger are connected to the expert’s analysis and scientific research. There is no methodology or process that would constitute a dangerous level of climate change. Experts have pointed out thresholds of climate change or suggested the possible impacts. In table 1 there are a few examples of dangers measured through threshold in physical vulnerability. Because there can be a lack of (analytical) insight into some thresholds, a State can use that indistinctness to not take any action.
Table 1
Danger measured through threshold in physical vulnerability
1 Large-scale eradication of coral reef systems
2 Disintegration of the West Antarctic Ice Sheet
3 Breakdown of the thermohaline circulation
4 Qualitative modification of crucial climate-system patterns such as ENSO and NAO
5 Climate change exceeding the rate at which biomes can migrate
The internal definitions of danger means the way danger is perceived and or/experienced. It indicates a strong feeling of unsafety. The internal definition therefore relates to moral, psychological, cultural, social and institutional processes of how a person or a group perceives as danger. Naturally, the internal definition of danger depends mostly on the living area. Together, the internal and external definitions of danger constitute what can be perceived and/or experienced as an actual danger to a group of people geographically. The dangerous climate changes are shared responsibilities of governments.
Dangerous climate change: the responsibility of States
It is important to see to what extent the government is responsible to prevent dangerous climate change. And if there is a responsibility, to what extent the government can be held liable for their contribution in creating climate changes.
On domestic level, the constitution has laid down a positive obligation for the Dutch government to act. According to article 21 of the Dutch Constitution, the government is responsible for safeguarding the habitability, the protection and the improvement of the living environment and the country. The Netherlands Environmental Assessment Agency (NEAA) is the national institute that advises the Dutch government in the fields of the environment, nature and spatial planning by giving strategic policy analysis.
On European level, article 2 (Right to life) and 8 (Right to health and respect for private and family life) of the European Convention of Human Rights (ECHR) give states the positive obligation to act. These articles are applicable to the Dutch law because of article 93 and 94 of the Dutch Constitution. Through the UNFCCC, the Kyoto protocol was developed. This protocol contains measures to work on the reduction of greenhouse gas emissions by industrialised countries. The Kyoto protocol tackles six greenhouse gas emissions (see figure 2):
Figure 2: Emissions of greenhouse gases
carbon dioxide CO2
methane CH4
nitrous oxide N2O
hydrofluorocarbons HFCs
perfluorocarbons PFCs
sulphur hexafluoride SF6
Furthermore, the Kyoto protocol contains provisions with targets to stimulate States to reduce or limit their emissions. By reaching the targets, States receive economic value in return. There are three market-based mechanism to promote States and enterprises to reach the targets. The first mechanism is emission trading. On national level, the Dutch Emission Authority (NEa) is responsible for the monitoring of enterprises that join the European Emission Trade System (EU ETS). The second is the Clean Development mechanism (CDM). CDM is defined in article 12 of the Kyoto Protocol and is the principle of common but differentiated responsibilities. Article 12 (5) of the Protocol has laid down three conditions in order for enterprises to earn Certified Emission Reductions (CERs):
‘ Voluntary participation;
‘ Real, measurable and long-term benefits related to the mitigation of climate change; and
‘ Reductions in emissions that are additional to any that would occur in the absence of the certified project activity.
The third mechanism is the Joint Implementation (JI). These three mechanisms are seen as the most important tools for States and the EU to reduce the emissions of greenhouse gases.
An internationally recognized customary law is the no-harm rule. This rule is also included in principle 21 of the United Nations Stockholm Declaration (1972). A state is allowed to exploit their own resources pursuant to their own environmental policies, as long as the damage doesn’t extend beyond the limits of national jurisdiction. The principle of no harm obliges a state to prevent, reduce and control the risks that are connected with environmental harm to other states. There is also the polluter pays principle, which is also laid down in Principle 16 of the Rio Declaration on Environment and Development. The principle is aiming for national authorities to bear the environmental costs and the use of economic instruments. National authorities bear the responsibility to pay the costs of pollution, with due regard to the public interest and without distorting international trade and investment. Before invoking domestic, European or international law, it is important to know who the parties are who can make claims relating to climate law.
Possible parties in claims
There are three possible claims: claims between States, claims by private persons against States and claims between private persons. Only the first two options will be briefly discussed. The third option is not relevant for this paper.
Climate law claims between States is not very common. A State would have to bring a liability claim in front of an international court regarding the climate change policy of a State. Only Cuba and the Salomon Islands have made a declaration with regard to article 14 UNFCCC on compulsory dispute settlement.
When it comes to claims by private persons against States, a State would have to contribute or cause the dangerous climate change to occur within their territory. The individual or group of individuals would have to live within the jurisdiction of that state. The component of violation of human rights makes international law and principles of liability relevant. If this component is not present, then national tort law is applicable. Through jurisprudence and legislative developments, a state can be held liable, despite its sovereignty. International law has not regulated the applicability of domestic tort law in climate law liability claims. Making states strictly liable for transboundary harm was considered too progressive. A good example of a claim against a State is the Urgenda case against the Dutch government.
The Urgenda case
‘Judges with the courage to give a ruling on this will one day be applauded, whereas those who don’t will eventually be tarred and feathered.’ ‘ J. Spier
The Urgenda Foundation aims to protect the interest of current and future generations in order that the ecosystems and the liveability of the planet are not severely put at risk by planetary heating and climate change caused by humans. The foundation aims for a fast transition towards a sustainable society and views climate change as one of the biggest challenges of our times. On 20 November 2013 Urgenda foundation and 886 citizens (Urgenda c.s.) have initiated a case against the Dutch government. There were two main issues dat Urgenda c.s. were trying to achieve with this case:
1) A declaratory judgment that the Dutch government is contributing to dangerous climate change (reducing greenhouse gas emissions) which is a threat for the enjoyment of human rights. Urgenda c.s. wants to order the Dutch State to take action to limit the amount of CO2 emissions to 40% (with a minimum of 25%) the 1990 level by 2020. The rate of 40% is documented in the United Nations climate Convention, in order to secure any reasonable chance of preventing dangerous climate change.
2) Urging the court of The Hague to compel the Dutch State to act according the positive obligations under the European Convention of Human Rights.
This case is extraordinary, because of two main reasons. First of all, it is the first case in Europe in which citizens are trying to hold the state responsible for inaction with catastrophically consequences. Secondly, it is the first case in which human rights form a legal basis to be protected against (dangerous) climate change.
Legal grounds in the Urgenda case
Urgenda c.s. based their claims on four legal grounds. They stated that the Dutch State acted unlawful with the greenhouse gas emissions based on these grounds. The first ground is the no-harm principle. As mentioned before, the principle of no harm obliges a state to prevent, reduce and control the risks that are connected with environmental harm to other states. The second legal ground are the obligations arising from the UNFCCC and the COP for all States. The third ground is based on the rights enshrined in article 2 (right to life) and 8 ECHR (right to health and respect for private and family life). The fourth ground are the legal grounds based in tort, like for example nuisance and endangerment.
The Dutch was held responsible for co2 emissions that would cause climate damage in and outside the territory of the Netherlands. Urgenda c.s. believe that the case of the Dutch Supreme Court Kalimijnen is an important case, because the proceedings are similar. In the Kalimijnen case, the French mines would dispose around four billion salt discharges in the river Rhine on a yearly basis. About 600 kilometers downstream, farmers would use the same water from the Rhine for their crops. There was a direct relation between the disposal of salt discharges and the decrease of in the quality of the crops. These farmers wanted a declaratory judgement from the court in which the actions of the French mines were declared unlawful and compensation for the suffered and future damaged caused by the salt discharges. In this case, the Court decided that there was a pro rata liability, because the damage occurred from several emissions from different sources. Each source was therefore liable for its part. Urgenda c.s. also believe that the Dutch government is liable for its share of the total Co2 emissions, therefore the State would be pro rata liable. This would mean that the Dutch State has to cover all damages caused proportionally in relation to other States. This is also acknowledged in the preamble of the UNFCCC:
‘Acknowledging that the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions.’
The Urgenda case will form an important precedent for other lawsuits across Europe. So far, litigation has focused on the compliance of regulatory requirements and not on the impacts of (dangerous) climate change.
Claims in the Urgenda case deriving from domestic tort law
The claims of Urgenda c.s. are based on tort law. Essentially the cumulative emissions of greenhouse gases that is caused by humans, changes the chemical composition of the atmosphere, increasing the temperature. There is a causal link between the greenhouse gas emissions and the consequences for the ecosystems. Science has provided sufficient proof to determine the causal link. This has also been confirmed in the UNFCCC and the Cancun Agreements of 2010. In the Cancun Agreements, States have acknowledged that a increase of 2 degrees would be a dangerous climate change for mankind.
The Dutch cabinet has decided that the State will pursue a reduction of 16% of greenhouse gas emissions by 2020 instead of 25-40%. Urgenda c.s. regard this as an unlawful act, because the State is contributing to a dangerous situation for the Dutch society. The element of danger has been defined by Kelderluik case. The Dutch Supreme set up four questions that served as a criteria to determine to what extent there was actual danger. The criteria meets the requirements that are related to article 6:162 (2) of the Dutch Civil Code (DCC). Article 6:162 DCC is the basis for Dutch tort law of which paragraph 2 is regulating the social due diligence standard. In the case of Urgenda c.s. the criteria was affirmed. Therefore the State was acting unlawful by not pursuing a reduction of 25-40% of greenhouse gas emissions by 2020. The criteria is as following (see below for the answers on each criteria):
o Was the danger obvious?
o How big is the chance that the danger will occur?
o How big are the damages (damage to health or to property)?
o What are the costs of taking the necessary precautions?
Was the danger obvious? Yes, research has pointed out that an increase of 2 degrees will have dangerous climate change consequences.
How big is the chance that the danger will occur Science and international institutes have assesses that the chance is very big that dangerous climate changes will occur within a short amount of time. This has also been recognized in case law: harms associated with dangerous climate changes are well recognized and real.
How big are the damages The damages would be catastrophically to all mankind.
What are the costs of taking the necessary precautions? It will be financially feasible to act now (preventive) with sustainable and cost effective measures.
The conclusion in relation with domestic tort law is that the Dutch State is acting unlawful according to article 6:162 (2) DCC with respect to two elements:
1. The goals in regards to emission reductions are low
2. The State contributes and finances the use of fossil fuels and does not stimulate nor subside renewable energy with the same effort.
Besides the domestic tort law based on article 6:162 DCC, article 2 and 8 ECHR were violated. The State has the positive obligation to protect the right to life and health. An increase in the climate temperate will affect these rights, because all humans are threatened by dangerous climate changes. The European Court of Human Rights (ECtHR) has ruled in the case of Oneryildiz v. Turkey that a State has to act in order to protect the right to have a private family life without any interference or disturbance or nuisance.
Besides the domestic tort law and article 2 and 8 ECHR, there has to be a causal link to attribute proportional liability. No State would be liable according to the condition qua sine non requirement. The condition qua sine non simply means that a certain act that causes an wrongdoing; without that act, the consequence would not have occurred. Dangerous climate changes only occur because of cumulative emissions of greenhouse gases. Every party that has contributed to damage that is causes, is proportionally liable for his part of the damage. This brings us to the pro-rata liability.
The Dutch Supreme Court would have to decide upon climate policy. Is this law or politics? This issue will be discussed briefly.
Law or politics?
The judges of the Dutch Supreme Court have the tendency to give enterprises their policy freedom in order for the Netherlands to have a strong economic position. The claims in the Urgenda c.s. case have a legal and political basis. The Supreme Court would have to make a decision in which they encounter the policy freedom of enterprises. The Advocate-General of the Supreme Court, Jaap Spier, has pointed out that the judge would have to have an activistic mentality in order to rule in favor of Urgenda c.s. In 2009 the Court of Appeal ruled in the case American Electric Power (AEP) versus the State of Connecticut on a climate issue that was considered to be an issue of policy. In fist instance the court decided that it cannot rule in an issue of policy. The Court of Appeal pointed out that a question of law is justiciable, even if it has political implications. Therefore the Court decided it had jurisdiction. It concludes that climate policies that are seen as unlawful can be contested before court.
In order to make a decision that would improve the legal and political situation in the Dutch State regarding the prevention of dangerous climate changes, the Supreme Court could use the Oslo Principles on Global Climate Change Obligations as a guideline. The Oslo Principles will be discussed further on in this paper.
The International Bar Association
The International Bar Association (IBA) has taken the discussions within the UNFCCC and the Kyoto Protocol in the Task Force report of 2015: ‘Achieving Justice and Human Rights in an Era of Climate Disruption.’ The report shows strategies to tackle with two issues: mitigation and adaption. The mitigation of greenhouse gas emissions and the (necessity of) adaption measures by Sates. Governments need to take appropriate measures for foreseeable risks. Governments do have a margin of appreciation, but they need to take steps to protect the right to life (article 2 ECHR). In short, IBA urges for the creation of an effective and consistent set of standards to address climate harms in order to promote relevant domestic procedural legislation. The Task Force proposes the establishment of an IBA Working Group on Climate Change Justice in order to set up a model statute on legal remedies for climate change. The model statute would incorporate the following procedural and substantive issues:
‘ Actionable rights under international and regional human rights law affected by climate change;
‘ Clarification of human rights obligations relating to climate change;
‘ Issues regarding causation, including appropriate standards for proving a legally
recognisable causal link between GHG emissions and relief sought;
‘ Whether knowledge, including foreseeability of harm, is relevant to liability or
judicial relief;
‘ Development of methods for awarding remedies and relief as warranted by the
circumstances, including uniform standards by which to apportion damages, and the provision of declaratory, interim and injunctive relief;
‘ Issues regarding standards of liability;
‘ The interrelationship of competing claims from nations, communities and individuals;
‘ Limitation periods for claims;
‘ The availability of pre-trial and interim applications for disclosure and discovery;
‘ Guidelines on costs awards in climate change cases; and
‘ Guidelines for the jurisdictional reach of domestic and international courts to
adjudicate climate change-related claims.
IBA believes that it is important to have a legal recognition for a new universal right. This right would relate to a safe, clean, healthy and sustainable environment for all mankind. A few recommendations that would complement the mitigation of dangerous climate changes will be discussed. First of all; there must be awareness. One of the recommendations is that corporate responsibility must be increased in order to recognize the impacts of climate change and to enhance climate friendly policies. Secondly, the issuing of World Trade Organisation (WTO) guidelines that trade-related measures in which the technologies are climate-friendly will be subsidized, excluding the use of fossil fuels. A third recommendation is to make bilateral investment treaties and free trade agreements green. This would mean that both parties have to comply with environmental laws and regulations. A fourth element is the creation of an international dispute resolution for climate change issues in which the court members are specialist in climate law. These recommendations and the issues discussed in the model statute of IBA’s Working Group on Climate Change Justice are important considerations for the Dutch State.
The Oslo Principles on Global Climate Change Obligations
On March 1st 2015, the Oslo Principles on Global Climate Change Obligations (Oslo Principles) have been established by a team of experts from different fields of law. They have written down a set of Principles which form the essential obligations for States and companies all over to world. These Principles have to avert the critical level of global warming and its related effects. The principles express the current obligations that all States and companies have to protect and the basic means of meeting those obligations.
There are four initiatives that are marked as crucial for all States. First of all, action by international, national and local actors to adapt to inevitable climate-change effects in ways that minimize harm to human and other forms of life and to the exercise of human rights.
In the second place transparency in the conduct of all actors with responsibility to implement these Principles.
The third initiative is widespread education initiatives to ensure that humanity, in general, and all people making relevant decisions, including legislative and judicial decisions, understand the urgency of action to avert climate change.
The fourth initiative guarantees of public access to information about the climate effects of policies, projects and practices, public participation in relevant decision-making, and the establishment of appropriate institutions to coordinate and implement efforts to reduce climate change.
The Oslo Principles further lay down a general precautionary principle of reducing greenhouse gas emissions, provide definitions, set down specific obligations (of States and Enterprises) and procedural obligations of states. These principles complements the recommendations and the issues of IBA’s Working Group as they are trying to work towards a world with less greenhouse gas emissions and more ‘green’ legislation and agreements.
Insurance against risks of dangerous climate change
Regardless of the mitigation and adaption efforts that States will make, there is will be an inevitable change in climate. Along with that, risks of dangerous risks will increase. Due to these dangerous changes, it sounds sensible to have insurance against dangerous climate changes. For example, the Dutch researcher, Willem Jan Wouter Botzen, came up with a public-private partnership to give insurance to people who live close in an area below sea level. Botzen is trying to challenge the Dutch insurance companies to contribute to the climate adaption in the Netherlands. The Dutch State would contribute to create an insurance system in which the State compensates the Dutch insurance companies and keeps market distortions into account. This paper will not further discuss the options of climate change insurance and compensation means, it is a side-issue. The main focus of this paper will remain on how the Dutch State can prevent dangerous climate change.
Conclusion
The aim of the conclusion is to answer the following main question:
How can the Dutch state contribute in the best way possible to move towards a viable prevention system to prevent dangerous climate change?
The CanCun Agreements have set the limit for States to not surpass more than 2 degrees in global heating. This means that States have agreed on the fact that the emissions of (six) greenhouse gases are creating a dangerous climate change. The Dutch State has to respect article 21 of the Dutch Constitution, articles 2 and 8 ECHR and adhere to international norms such as the duty of care, the polluter pays- and no harm principles. On domestic level, article 6:162 DCC has provided a causal link and liability based on tort law. The Urgenda c.s. case can be seen as a positive development towards the involvement of more actors in creating a viable prevention system against dangerous climate change.
Key words in the prevention of dangerous climate change is mitigation and adoption. The mitigation of greenhouse gas emissions and the (necessity of) adaption measures by Sates to adapt along with the climate changes. We need to adapt in a sustainable manner to mitigate the foreseeable risks connected to dangerous climate change.
The most important (legal) tools for the State are established by the UNFCCC and the Kyoto protocol. The three market-based mechanisms is an effective way to reach reduction targets that the Dutch State needs to address and work on (emission trading by the NEa, the CDM and JI). The Dutch State should further enhance the emission trading within its borders.
Unfortunately the UNFCCC and the Kyoto Protocol do not take human rights into account when striving for the reduction of greenhouse gas emissions. Several cases have indicated (so does the Urgenda c.s.) that preventing dangerous climate change is the responsibility of the State. With that responsibility comes accountability in which citizens can call for a breach of human rights by their governments.
The Dutch State should incorporate the procedural and substantive issues presented in the model statue of the Task Force that is proposed by the IBA Working Group on Climate Change Justice and the Oslo Principles in order to complement the issues presented by the IBA Working Group.
Personal view
The matter of dangerous climate change concerns everyone living on this planet. After reading the catastrophic consequences that research has proven that will occur if the temperate will increase more than 2 degrees, I was shocked. Somewhere in the back of your head you tend to believe that climate change and especially dangerous changes are something you will not be confronted with. Or that it is a problem for future generations to worry about. The fact that the right to life and the right to a sustainable climate is considered a human right, is to be applauded. It means that governments, courts, NGOs and enterprises (amongst other actors) are taking their part seriously. I do believe that the Dutch State is taking small steps’too small. The fact that the Dutch cabinet has decided that the State will pursue a reduction of 16% of greenhouse gas emissions by 2020 instead of 25-40%, is alarming. After doing all the research to write this paper, I also believe preventing dangerous climate change is a shared responsibility. The Dutch State can contribute, but certainly not prevent by its own. After all, there are no borders when it comes to climate changes. As a Dutch citizen, I can only hope that in the case of Urgenda c.s., the plaintiffs will win. It will contribute immensely to towards a viable prevention system of dangerous climate changes within Europe.
The Dutch State must protect the vulnerability of the Dutch environment by showing strong adaptive capacity based on economic resources, flexible use of technology, setting up or funding institutions and providing information and skills to society. The Dutch State (or any other government) does not have the luxary to show signs of impasse towards dangerous climate changes. However, the Dutch can contribute towards a viable prevention system to prevent dangerous climate change.
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