On the 20th of December, a Supreme Court ruling will be held in the Netherlands on the controversial case “Stitching Urgenda v. De Staat der Nederlanden”.
The dispute faces Urgenda “Urgent Agenda”, a foundation concerned with the development of plans and measures to prevent climate change, against the State of the Netherland. The Foundation demands the State to further its ambitions to reduce the emission of greenhouse gas to 25 percent compared to 1990. The foundation initially sued the State in the District Court of The Hague in 2015 then the State appealed in the Appeal Court of The Hague in 2018. Both times, the courts have supported the climate activist foundation.
The particularity of this case lies in the fact that the Court is ordering the State to achieve a specific goal, it is giving the State an order. This peculiarity might arguably be on the edge of breaching the “Trias Politica” (separation of power between the legislative, executive and judiciary). The court usually holds the State accountable by means of a judgment basically concluding, “You acted illegally, you committed a tort, now pay damages". This post will particularly focus on the crucial argument that will be brought by the State in its last chance to over-rule the previously held court decisions, namely the “Trias Politica”.
The Trias Politica underlines a crucial need to keep a separation of power in a democratic society. The rationale behind the separation of powers is to prevent concentration and therefore an abuse of power. The separation of power in question in the case at hand, possibly concerns the judiciary over-stepping the legislative. The legislative power, according to the Dutch constitution is composed of the government and the States General (Parliament).
Back in 2003, the Supreme Court raised the Trias Politica question in the Waterpakt case. There, the court ruled that even if the state acted unlawfully, Dutch law precludes the court from ordering the State to enact legislation in order to rectify the situation. After all, laws are, pursuant to art. 81 of the Dutch Constitution, adopted by the government and the States General (Parliament), who together form the legislative power. The question as to whether, when and in what form of law, the law will be enacted must be answered based on political decision-making taking into consideration all the interests involved. The balancing of interest must be made by a democratically elected body. This ruling is an influential precedent to the issue at hand.
In the Urgenda case, in paragraph 30, the State brought this argument back on the table. It argued that there is no need to reduce by 25% to 40% greenhouse gases by the end of 2020 per se. It thereby meant that it is to the discretion of the State to choose what it considers the most appropriate for the needs of its electors, taking into consideration all the interests involved, such as those of industry, finance, energy supply, care, education, and defense. It is a "political question". It would be acting in opposition to the Trias Politica for the Judge to impose such an obligation on the State, especially since it can only be achieved through engaging in a legislative procedure, meaning that the judgment materially means an order to legislation.
However, the Court argues that Urgenda's claim is not intended to enact legislation and that the State retains complete freedom to determine how and in what form it will comply with the order demanded, thereby loopholing the conditions previously established in the Waterpakt case. It further develops that if it were to be judged that execution of the imposed order is only possible through the adoption of legislation, the order does not prescribe in any way what content this legislation should have. For this reason, there is no "warrant for legislation". The court goes on explaining that the State has not substantiated sufficiently well why the execution of the imposed order is only possible through the adoption of legislation. Indeed, whilst Urgenda has proposed different solutions for achieving their demand not requiring any legislative measures, the State insufficiently refuted their suggestion.
The last point raised by the court as a justification for enforcing the demand of Urgenda, arises from the relatively newly established Article 93 of the Dutch Constitution (hereinafter, GW). This article sets that some international law provisions can be used directly in a Dutch court. This particularity of the Dutch constitution implies that Urgenda can make effective use of its rights derived from the European Convention of Human Rights (Hereinafter, ECHR). Therefore, the Court of Appeal is required to apply directly effective provisions of treaties to which the Netherlands is a party, such as Articles 2 and 8 of the ECHR. Such provisions form part of the Dutch legal sphere and they even take precedence over Dutch laws that deviate from it.
The implications of The Hague Court of Appeal’s judgment might be perceived as unprecedented and ground-breaking for Dutch Constitutional Law. It will have a major impact on the judiciary-legislative interplay. On the 20th of December, a crucial decision will lie in the hands of the Dutch Supreme Court. The dilemma simply put, boils down to a trade-off between a crucial factor in a functioning democracy and the need to take drastic measures for the sake of climate emergency.
This balancing of interest raises some discussion. It has been pointed out by academics that the collective action right exercised by Urgenda Foundation, might be a new way for citizens to have their voices heard beyond checking some boxes during election time. On the other hand, what if the Supreme Court upholds the Court of Appeal’s judgment, will this lead to a floodgate of future judgments? Will it lead to an abuse of power by the Court?
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