Uitspraak Nº 200.178.245/01 (Engelse vertaling). Gerechtshof Den Haag, 2018-10-09

• ECLI: ECLI:NL:GHDHA:2018:2610
• Date: 09 Octubre 2018
• Docket Number: 200.178.245/01 (Engelse vertaling)
• Court: Gerechtshof Den Haag (Nederland)

THE HAGUE COURT OF APPEAL
Civil-law Division

Case number : 200.178.245/01

Case/cause list number : C/09/456689/ HA ZA 13-1396

Ruling of 9 October 2018

in the case with the aforementioned case number of:

THE STATE OF THE NETHERLANDS (Ministry of Infrastructure and the Environment),

seated in The Hague,
appellant in the appeal on the main issue,

respondent in the cross-appeal,

hereinafter referred to as: the State,

counsel: mr. G.J.H. Houtzagers of The Hague,

versus:

URGENDA FOUNDATION,

established in Amsterdam,

respondent in the appeal on the main issue,

appellant in the cross-appeal,

hereinafter referred to as: Urgenda,

counsel: mr. J.M. van den Berg of Amsterdam.

THE PROCEEDINGS

By bailiff’s notification of 23 September 2015, the State instituted an appeal against the judgment in the case between the parties delivered by The Hague District Court on 24 June 2015 (ECLI:NL:RBDHA: 2015:7145). In its Statement of Appeal (with Exhibits) of 12 April 2016, the State submitted 29 grounds of appeal. In its defence on appeal (with Exhibits) of 18 April 2017, Urgenda contested the grounds of appeal and filed a cross-appeal by submitting a ground of appeal. The State responded in its defence on appeal in the cross-appeal of 27 June 2017. In a letter dated 30 April 2018, the Court submitted several questions to the parties, requesting them to focus on these questions in their counsels’ oral arguments of 28 May 2018. At the hearing, Urgenda filed a ‘Document containing answers to the Court of Appeal’s questions and submission of additional Exhibits for the oral arguments’, sent in advance to both the Court and the State, while at the same hearing the State submitted a document to the Court, entitled ‘Answers to questions in letter dated 30 April 2018’. Although both parties did not act entirely in accordance with the Court of Appeal’s request, neither party has objected to this course of events, so that the Court shall regard the answers to its questions as procedural documents. On 28 May 2018, the parties had their cases pleaded by their counsels, mrs. G.J.H. Houtzagers and E.H.P. Brans (for the State) and mrs. J.M. van den Berg and M.E. Kingma (for Urgenda) , based on the submitted written pleadings. Prior to the oral arguments, the State submitted Exhibits 75 through to 79 to the Court, while Urgenda submitted Exhibits 145 through to 165. On 28 May 2018, the Court directed that these documents be entered into the records. A court record has been drawn up of the hearing of the oral arguments, after which the ruling was scheduled.

ASSESSMENT OF THE APPEAL

Introduction of the dispute and the factual framework

1. In brief, the proceedings on appeal in this climate case concern Urgenda’s claim to order the State to achieve a level of reduction of greenhouse gas emissions by end-2020 that is more ambitious than envisioned by the State in its policy.

2. As the facts established by the district court in legal grounds 2.1 through to 2.78 of the contested judgment (hereinafter: the judgment) are not disputed between the parties, the Court shall also take them as starting points. However, it should be noted that the parties disagree about the weighting of several of these facts, and specifically the conclusions that can be drawn from them in light of the claim. The Court shall discuss this further below.

3. The assessment starts with an introduction of the dispute and the factual framework (legal ground 3), followed by a brief description of the treaties, international agreements, policy proposals and the actual situation at the global, EU and Dutch level (legal grounds 4 through to 26), for which the Court takes as a starting point the developments up to the oral arguments of 28 May 2018 (i.e., the moment when the debate was closed and the ruling was scheduled).

(3.1) Urgenda (‘Urgent Agenda’) is a citizens’ platform with members from various domains in society. The platform is involved in the development of plans and measures to prevent climate change. Urgenda is a foundation whose purpose, according to its by-laws, is to stimulate and accelerate the transition processes to a more sustainable society, beginning in the Netherlands.

(3.2) Since the beginning of the Industrial Revolution, mankind has consumed energy on a large scale. This energy has predominantly been generated by the combustion of fossil fuels (coal, oil, natural gas). The combustion process produces CO2 (carbon dioxide), some of which is released into the atmosphere – and stays there for hundreds of years or longer – and some of which is absorbed by the oceanic and forest ecosystems. Incidentally, this absorption capacity is declining due to deforestation and rising sea water temperatures.

(3.3) CO2 is the main greenhouse gas which, together with the other greenhouse gases, traps the heat emitted by the Earth in the atmosphere (the so-called greenhouse effect). The greenhouse effect increases the more CO2 is emitted into the atmosphere, which in turns exacerbates global warming. It is important to note that the climate system shows a delayed response to the emission of greenhouse gases, meaning that the full, warming effect of the greenhouse gases that are emitted today will only become apparent in 30 to 40 years from now. There are other greenhouse gases besides CO2, such as methane, nitrous oxide and fluorinated gases, which have a less pronounced warming effect and degrade at another rate.

(3.4) The concentration of greenhouse gases in the atmosphere is indicated with the unit/abbreviation ‘ppm’ (parts per million). The abbreviation ‘ppm CO2-eq’ (parts per million CO2 equivalent) is used to indicate the concentration of all greenhouse gases combined, with the amount of greenhouse gases other than CO2 being converted into CO2 in terms of warming effect. Like the district court (in legal ground 2.14 of the contested judgment), the Court shall henceforth in this ruling use the abbreviation ‘ppm’, even if ‘ppm CO2–eq’ is meant. Should the Court wish to indicate something else with ppm, this shall be stated specifically.

(3.5) The current level of global warming is at about 1.1º C warmer relative to the beginning of the Industrial Revolution. The current concentration of greenhouse gases amounts to approximately 401 ppm. Human-induced CO2 emissions continue on a global level and over the past decades, the global CO2 emissions have increased by 2% annually, which is why global warming continues unabated. There has been a general consensus in the climate science community and the world community for some time that the global temperature should not exceed 2º C. If the concentration of greenhouse gases has not exceeded 450 ppm in the year 2100, there is a reasonable chance that this 2º C target will be achieved. However, the insight has developed over the past few years that a safe temperature rise should not exceed 1.5º C, which comes with a lower ppm level, namely 430 ppm. With these starting points in mind, there is limited room (‘budget’) for greenhouse gas emissions, and particularly for CO2 emissions. This budget is also referred to as the ‘carbon budget’, ‘CO2 budget’ or ‘carbon dioxide budget’.

(3.6) It follows from the above that the worldwide community acknowledges that something needs to be done to reduce the emission of greenhouse gases and of CO2 in particular. However, the urgency of this is assessed differently within the global community. In this context, various treaties, agreements and arrangements have been drawn up in the UN context, within the EU and by the Netherlands, the principal of which are extensively formulated in the contested judgment in legal grounds 2.34 through to 2.78. Global warming can be prevented or reduced by ensuring that less greenhouse gases are emitted into the atmosphere. This is known as ‘mitigation’. In addition, measures can be taken to counter the consequences of climate change, including raising dikes to protect low-lying areas. This is called ‘adaptation’.

(3.7) The State supports the goal of drastically reducing CO2 emissions and, eventually, ending such emissions entirely. The European Council has decided that the EU must achieve a reduction of greenhouse gas emissions of 20% by 2020, of at least 40% in 2030 and 80-95% in 2050, each relative to 1990. For the Netherlands, this translates to a minimum reduction target of 16% for the non-ETS sector and 21% for the ETS sector by 2020 (ETS = European Emissions Trading System), see legal ground 4.26 of the contested judgment and legal ground 17 of this ruling. During the plea hearing in the first instance, the State declared that it expected both sectors to have achieved a reduction of 14% to 17% by 2020, relative to 1990. In its most recent Coalition Agreement (2017), the State announced to pursue a national emission reduction of at least 49% in 2030 relative to 1990. In 2017, CO2 emissions in the Netherlands had declined by 13% relative to 1990.

(3.8) Urgenda is of the opinion that the reduction efforts, at least those covering the period up to 2020, are not ambitious enough and claimed in the first instance – among other things – that the State be ordered to achieve a reduction so that the cumulative volume of the greenhouse gas emissions will have been reduced by 40%, or at least by 25%, by end-2020, relative to 1990.

(3.9) In brief, the district court ordered a reduction of at least 25% as of end-2020 relative to 1990 and rejected all other claims of Urgenda. Urgenda did not put forward grounds of appeal against the rejection of the other claims nor against the rejection of a reduction of more than 25%. This means that in these appeal proceedings, a reduction of more than at least 25% by 2020 cannot be awarded and that the other claims of Urgenda are no longer in dispute.

Treaties, international agreements, policy proposals and actual situation

Global...