Too Big to Trial? Lessons from the Urgenda Case
Forthcoming in Uniform Law Review
Tilburg Private Law Working Paper No. 02/2018
16 Pages Posted: 6 Mar 2018
Date Written: February 27, 2018
In the spring of 2015 the District Court of The Hague issued a ruling that had a tremendous impact across the globe. In the case of Urgenda e.a. v. the State of the Netherlands the Court issued an injunction against the Dutch government to reduce the emission of greenhouse gases (GHG´s) before 2020 by 25% compared to 1990, whilst the government policy aimed at a reduction of (not more than) 17%.2 Perhaps even more surprising than the decision – taken only 6 months before the UN Conference on climate change in Paris in December 2015 – was the reasoning of the Court. After allowing standing to Urgenda as plaintiff, the Court reasoned its way through the key concepts of tort law to motivate its decision that the State had violated its duty of care towards its citizens. In doing so, the Court used international and European obligations to construct wrongfulness under national tort law on the one hand, and displayed all available scientific knowledge to substantiate that wrongfulness on the other. In fact, the Court attributed responsibility for a sustainable development of the atmosphere to the Dutch Government, and did this on the demand of a rather haphazard organization of worried citizens. Therefore the Urgenda-ruling raises questions with regard to the role of the civil court as risk regulator, especially with regard to the legitimacy of this role.
Keywords: Urgenda, Civil Procedure, Climate Change
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