The Hoge Raad judgment of 20 December 2019 in the Urgenda case: an overcautious policy for reducing GHG emissions breaches Articles 2 and 8 of the European Convention on Human Rights

Abstract

The judgment of the Hoge Raad (hereafter HR) given on 20 December 2019 in the Urgenda case upheld the Court of Appeal judgment of 9 October 2018 ruling on a collective interest action brought by the Urgenda Foundation on behalf of 886 Dutch citizens objecting to the inadequacy of measures to reduce greenhouse gas (GHG) emissions in the Netherlands. The HR largely endorsed the particularly detailed advisory opinions delivered on 13 September 2019 by Procurator General F.F. Langemeijer and Advocate General M.H. Wissink. The HR judgment is of particular interest in view of the personal, temporal and substantive scope of Articles 2 and 8 of the European Convention on Human Rights (hereafter ECHR). In recent years there has been an increasing debate on the link between climate change and positive obligations of a preventive nature that are incumbent upon States under human rights law. In the landmark Urgenda case, the HR held that, given the severity of the impact of climate change, the Dutch State is subject to a duty of care in accordance with Articles 2 (right to life) and 8 (right to privacy and family life) ECHR, which have direct effect, and is required to adopt mitigating measures. These measures must involve a 25% reduction of GHG emissions by the end of 2020, instead of the government's projected reduction of 20%. This target is deemed to be necessary so as to limit the concentration of GHG in the atmosphere to 450 ppm in order to prevent the dangerous climate change that would be associated with any temperature rise in excess of 2°C.