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The Enormous Significance For Climate Law and Ethics Of a Dutch Court’s Order Requiring the Netherlands To Reduce Its GHG Emissions by 25% by 2020

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I-Introduction

In June, a Dutch court in the landmark Urgenda decision concluded that the Netherlands must reduce its ghg emissions by 25% below 1990 levels by 2020.  This is the first case in the world where a national government has been ordered by a court to reduce its greenhouse gas (ghg) emissions commitments by a specific amount on the basis that its current commitments and polices are not legally sufficient. This case had enormous potential significance not only for climate change law but also for ethical arguments made about what a nation should do to reduce its ghg emissions if the case for one reason or another is not directly applicable to legal responsibilities of nations other than the Netherlands.

Although the court’s decision on the Netherlands’ emissions reductions has been widely publicized around the world, the logic that the court used to conclude that the Dutch government had a duty to reduce its ghg emissions by 25% below 1990 by 2025 has received little media attention despite the fact that much of the court’s reasoning is potentially legally applicable to the responsibility of all other developed nations. And so, the reasoning in the Urgenda case could be used by proponents of stronger responses to climate change in other countries. Yet, as we will explain in this post, despite the fact if other courts apply the reasoning in the Urgenda to other developed nations, many developed nations including the United States, Australia, Canada, and New Zealand would be required to increase their national ghg emissions commitments or INDCs, recent science on how much ghg concentrations in the atmosphere can rise without causing dangerous climate change supports the conclusion that the Dutch court mandated ghg emissions reductions target of -25% below 1990 levels by 2020 is  still not stringent enough.

Much of the Court’s logic in its decision is relevant to the ethical issues that nations must face in developing climate change policy, even if the court’s reasoning in the Urgenda case is not directly legally applicable in other countries, After identifying the court’s legal reasoning in the bulleted paragraphs below, the significance of the legal reasoning for climate change ethics is identified in italics.

This post first reviews the Dutch Court’s logic that is relevant to how other nations should determine their ghg emissions reduction commitments under the UNFCCC, or INDCs. This is followed by a brief comment on the significance of the legal reasoning for climate change ethics.

II. The Urgenda court’s logic and its ethical significance.

Although the Dutch court relied in part on Dutch law to reach its decision which is not likely relevant to other developed nations, In reaching its decision that the Netherlands must reduce its ghg emissions by 25% below 1990 levels by 2020 and 40% below 1990 levels by 2030, the court relied upon the following legal reasoning which could be followed by other developed nations:

This is grounds for the conclusion that nations have an ethical duty, even if the legal promise cannot be enforced, to adopt policies that will reduce their ghg  emissions to the nation’s fair share of global emissions that at a minimum are sufficient to limit warming to 2°C. Yet, because temperature increases below 2°C will impose harsh impacts on vulnerable people and nations, an ethical argument can be made that nations have an ethical duty to do whatever they can to limit any further warming. Particularly because there is scientific concern that warming of less than 2°C may trigger the catastrophic warming that the 2°C warming limit was designed to protect against, there is a strong ethical argument that nations need to do more than adopt policies that would allow warming to 2°C. 

As above, nations have a clear ethical duty, at the very minimum, to adopt policies that, working with other nations, will limit atmospheric concentrations of 450 ppm. Yet, as we will see below, stabilizing atmospheric ghg concentration at 450 ppm is likely not stringent enough to keep warming within 2°C not to mention that a more protective warming limit of perhaps 1.5 °C may be s needed to prevent catastrophic warming. Every national INDC is implicitly a position on what level of atmospheric ghg concentrations the nation is seeking to achieve in establishing an INDC and its fair share of global emissions the nation has committed to in selecting the INDC. 

All developed nations have both a legal and ethical duty to reduce their ghg emissions by a minimum of 25% by 2020 below 1990 levels but because the 450 ppm atmospheric concentration goal is not likely protective enough, the national commitments of developed countries must be greater than -25% below 1990 by 2020.   .

One way of resolving conflicts between equity frameworks is to deduce emissions reduction target levels by considering multiple equity frameworks that pass ethical scrutiny and averaging them. 

Although it is not news to either lawyers or ethicists that nations have duties to adopt policies that will prevent dangerous climate change, to protect the climate for the benefit of future generations, to apply precautionary measures in developing climate policies, and that developed countries should take the lead in reducing the threat of climate change, this decision is the first legal decision to apply these principles to a national ghg emissions target. A strong argument can be made that nations have ethical duties to abide by these provisions in the UNFCCC on the basis of many ethical arguments including that nations have agreed to be bound by these provisions and nations should not break their promises..

This part of the decision is of great ethical importance because it interpreted various provisions of the UNFCCC to require nations to adopt climate policies that achieve ghg emissions sooner  rather than later. In doing this the court relied in part on an interpretation of the precautionary principle which has been rarely used for requiring nations to act quickly. Most commentators on the precautionary principle have used it to support arguments that nations may not use scientific uncertainty as an excuse for insufficient action. Yet the Urgenda court used the precautionary principle to conclude that this principle required action sooner rather than later because delay increased the risk of catastrophic climate impacts. 

This part of the decision is consistent with the ethical conclusion that all nations have ethical and moral duties to reduce their emissions to their fair share of safe global emissions without regard to the size of the nation. 

Although this conclusion is based on a provision of Dutch law, the legal reasoning supports the ethical conclusion that nations have a moral duty to protect the environment for the benefit of the nation’s citizens.

Although the precautionary principle is derivable from ethical reasoning, the decision supports the conclusion that the precautionary principle is binding on nations because they have promised to apply it. 

This legal reasoning also supports the ethical conclusion that nations must not only act ambitiously to reduce the threat of climate change but must also act quickly and rapidly. 

This is a very significant conclusion for climate ethics because many opponents of climate change polices have successfully argued that nations have no duty to act until large emitters like China and India act. The decision is very clear in explaining why such an argument is legally indefensible and also ethically unsupportable in light of the fact that climate change is a global problem and requires global responsibility, any anthropogenic ghg emission, no matter how minor, contributes to an increase of CO2 levels in the atmosphere and therefore to hazardous climate change, and emission reductions entail both a joint and individual responsibility of nations to act.

This part of the opinion also confirms the ethical conclusion that higher and quicker ghg emissions reduction targets are ethically required  because slower, less ambitious targets will make the problem worse. 

This part of the decision reiterates the conclusion that nations have an ethical duty to its citizens to prevent dangerous climate change. The court in another part of the decision also concluded that nations have a clear legal duty to not harm people outside of its jurisdiction under the “no harm” rule which is both expressly referenced in the UNFCCC and is customary international law but decided this clear duty was not relevant to the Urgenda case because the Urgenda plaintiffs were Danish nationals. 

III. Recent Scientific Conclusions in Regard to the Adequacy of the 450 ppm atmospheric Goal  

As we have seen, the Urgenda decision relied on the 2007 IPCC report on what emissions reductions would be required to limit warming to tolerable limits which assumed that 2°C2 was a reasonable warming limit for the world and that a 450 ppm CO2 atmospheric concentration was a reasonable atmospheric concentration target to give reasonable chance of keeping warming from exceeding the 2 degree C warming limit that has been agreed to by the international community.  Since then several scientific reports have  been published that claim : (1) the -25%  to -45% reduction levels identified in the 2007 IPCC report are not stringent enough to live within a carbon budget that will protect the world from warming greater than 2°C, and (2) that the 2°C warming limit and the 450 ppm CO2 concentration goal are not stringent enough to prevent dangerous warming .

Climate Tracker Global Emissions Reduction Pathway Needed to Limit Warming to 2°C

A recent report by Climate Tracker summarized the most recent science on needed ghg reduction pathways to stay within the 2 degree C warming budget as follows:

Limiting warming below 2 degrees with a high chance means that total GHG emissions would need to be zero between 2060 and 2080 and likely negative thereafter CO2 emissions from fossil fuel combustion and industry would need to be zero by as early as 2045 and no later than 2065 and be negative thereafter.

Because total global emissions must be zero between 2060 and 2080, developed nations need to be zero before 2060. Since the 2007 IPCC on which the Urgenda decision was based called for developed nations to reduce their ghg emissions by -80% to -95% below 1990 by 2080, it is clear that emissions reductions called for in the Urgenda decision are now not sufficient to achieve the  2°C warming limit.

James Hansen recently issued an affidavit in support of litigation that has been intiated against the US state of Oregon which summarizes recent scientific views of many scientists in which he concluded that to protect against dangerous climate change, atmospheric CO2 must be brought down to 350 ppm and to achieve this the world needs to reduce ghg emissions by 6% per annum coupled with reforestation and improved forest and agricultural practices.

In this report, Dr. Hansen also claims that the required rate of emissions reduction would have been about 3.5% per year if reductions had started in 2005 and continued annually thereafter, while the required rate of reduction, if commenced in 2020, will be approximately 15% per year.

Applying these conclusions to the Urgenda decision leads to the conclusion that the Dutch court’s order requiring the Netherlands to reduce its emissions  by -25% below 1990 levels is not stringent enough to meet the Netherlands legal and ethical responsibilities to act to prevent dangerous climate change.

By 

Donald A. Brown

Scholar In Residence and Professor

Sustainability Ethics and Law

Widener University Commonwealth Law School

dabrown@gmail.com

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