What do climate change and class actions have in common? A lot is happening in the Dutch jurisdiction, and courts are getting – or taking? – far-reaching powers in resolving collective disputes. The Dutch Supreme Court just handed down its ruling in the Urgenda-case, confirming that the Dutch judiciary can push the government’s executive branch to control climate change.

The world is in flames when it comes to climate change. Although the UN Climate Change Conference COP25 in Madrid failed to specify the Climate Agreement of Paris, the EU recently did take big steps. The EU Parliament and Member States have increased climate change expenditure in the bloc’s 2020 budget. Last week, the European Commission launched the Green Deal, aiming to make the EU climate neutral in 2050. Teen Activist Greta Thunberg has been selected as TIME’s Person of the Year 2019.

Separation of powers

‘Public interest’ litigation like the Urgenda-case raises the question whether the judiciary or branches of government should deal with policy on climate change. Decades ago, the Dutch Supreme Court already recognised, in the Nieuwe Meer-case, that environmental organisations are entitled to seek injunctive relief to stop government activities that are (potentially) harmful to the interests such organisations are promoting (in that specific case it was the Amsterdam municipality dumping canal sediment in near wetland). What would Montesquieu have thought?

Examples outside the Netherlands

It looks as if foreign courts are not willing to burn their fingers. In July 2018, a federal judge in the US tossed out New York City’s suit against five big oil companies, ruling that the serious problems caused by climate change are not for the judiciary to ameliorate and referring to two other branches of government. Canadian environmental organisation ENvironnement JEUnesse might run into similar reasoning in the action in which it blames the Canadian government for inadequate planning its greenhouse gas reduction targets.

On to Urgenda

In this case, the Dutch State’s emission targets for 2020 are at stake: Urgenda, who initiated its first litigation against the State as early as 2013, is seeking an emission reduction of at least 25% in 2020 compared to 1990. The Dutch State is obliged, under the European Convention on Human Rights, to take preventive measures to protect (family) life, among other things. Today, the Dutch Supreme Court confirmed (in a nutshell) that not reducing emissions accordingly will lead to a breach of the State’s duty of care towards citizens (under Dutch law constituting wrongful act). As a result, the order of the Court of Appeals in The Hague – that the State must limit emissions – has now become final.

Collective redress in the Netherlands

Urgenda’s claim against the State is formally based on the general Dutch class action system. As per 1 January 2020, the Act on collective damages in class actions (WAMCA) will take effect, which will make it easier to litigate mass damages through the Dutch courts. Please refer to our news item of 20 March 2019 for the main changes that the WAMCA brings. The WAMCA might facilitate a second wave of climate litigation, with representative organisations (and governments?) seeking compensation for damages from businesses that are responsible for greenhouse gas emissions.