A Governmental Duty of Care for Climate Change Mitigation : Will Urgenda Turn the Tide ?

Liability for causing or failing to mitigate climate change has long been proposed as an alternative, or backstop, to lagging international cooperation. Thus far, there has been very limited success in holding governments or individuals responsible for the emission of the greenhouse gasses that are considered the primary cause of anthropogenic climate change. The recent landmark decision in Urgenda Foundation v. Government of the Netherlands (Ministry of Infrastructure and the Environment) breaks with this tradition. In June 2015, the Dutch District Court (The Hague) held that the current climate policies of the government are not sufficiently ambitious for it to fulfill its duty of care towards Dutch society. The judgment, and the accompanying order for the government to adopt stricter greenhouse gas reduction policies, raises important questions about the future of climate change liability litigation, the separation of powers between judiciary and legislature, and the effect of litigation on international climate change negotiation and cooperation.


Introduction
Small as it is, the continued existence of the Kingdom of the Netherlands represents a sizeable victory of willpower and engineering over the natural environment.The Dutch have had to accommodate an ever-growing population and its material demands within the territorial limits of their Kingdom, starting with -but not limited to -an ongoing battle with the water that frequently tries to reclaim large parts of the Netherlands.Their success has depended on a high degree of interference with the natural environment, reflected in heavily industrialized agriculture and man-made 'polders'.The Netherlands' downstream and downwind position with respect to other heavily industrialized European countries increases the pollution burden on the already stretched Dutch ecosystems.Unsurprisingly, the Dutch have long advocated environmental leadership and international cooperation on environmental problems that are particularly difficult to solve unilaterally, including climate change.
set by the EU, 7 are insufficiently ambitious to discharge this duty of care. 8The Court therefore ordered the Dutch government to adopt emissions reduction policies that would result in, at least, a 25% reduction as compared to 1990 levels by 2020 -as opposed to the current foreseen reduction of 17-20%. 9he Urgenda judgment has put the Netherlands on the climate change litigation 'map', which had thus far been dominated by the United States (US), Australia, and within the EU, the United Kingdom (UK). 10 Even as the legal implications of the judgment remain unclear -there are several possible stages of appeal available to the Dutch government -its symbolic significance has already been described as 'courageous' 11 , 'unprecedented in Europe, and unexpected'. 12Urgenda represents an important new chapter in climate change liability litigation, particularly in the EU, and therefore requires close inspection. 13In determining Urgenda's place in the body of climate change jurisprudence, there are three key questions that must be answered: 1.
As a matter of law, does the legal basis for liability in Urgenda -the Dutch onrechtmatige daad (tortious act) -have suitable equivalents to provide a legal basis for similar actions in other jurisdictions? 2.
As a matter of constitutional doctrine, can an order to enact mitigation policies with a minimum reduction goal survive the test of democratic governance, specifically in light of the separation of powers doctrine?And, 3. As a matter of climate change mitigation policy, will this case force the ambitious governmental action that environmental interest groups have been fighting for?The answers to these questions require an appreciation of the specific legal context in which the Urgenda judgment was handed down.While climate change is a global challenge that benefits from transboundary regulatory approaches, climate change litigation -particularly before national courts -remains jurisdiction specific. 14Equally, even as the basis for liability 7 See Decision 406/2009/EC of the European Parliament and of the Council of 23 April 2009 on the Effort of Member States to Reduce Their Greenhouse Gas Emissions to Meet the Community's Greenhouse Gas Emission Reduction Commitments up to 2020 [2009] OJ L140/136 (EU Effort Sharing Decision). 8Urgenda, n. 6 above, para.4.84. 9Ibid., para.5.1. 10The term climate change litigation (CCL) covers many different types of actions, both civil and criminal.The focus of this article will be exclusively on action brought against the government, and to some extent individuals, for failure to reduce GHG emissions and any liability for climate change resulting from these emissions.Peel and Osofsky provide one of the most recent and comprehensive overviews of this body of cases and how it may be mapped, see J. Peel & H. Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge University Press, 2015), generally and specifically at p. 8.For an exhaustive overview of climate change litigation, see resources provided by the Sabin Center for Climate Change Law, Columbia University, New York, NY (US), available at: http://web.law.columbia.edu/climate-change/resources.stems from a specific Dutch understanding of tortious acts, Dutch climate change policy cannot be understood without reference to its membership of the EU.Dutch governmental discretion in this area is heavily curtailed by the EU's competence in this policy field and early concerns have been voiced regarding the ability of the Dutch government to take unilateral action on this issue. 15This means that the parameters of the impact of the Urgenda ruling for climate change policy -the third question -are determined not only by the Dutch legal and political system but also by that of the EU.
The remainder of this article is structured as follows: Section 2 sets out the developments leading up to the Urgenda ruling and provides an overview of the judgment, including the Court's treatment of the threshold question of standing.Section 3 focuses on the judgment's implications for climate change liability litigation, particularly the extent to which Urgenda is 'transposable' to other jurisdictions.Section 4 discusses possible concerns regarding the separation of power between the judiciary and the executive in light of the Court's order to act.Section 5 concludes by addressing the broader question of the potential impact of governmental liability for failure to undertake (ambitious) climate change mitigation policies on national and international climate change policy.

Urgenda v. Government of the Netherlands
Since its foundation in 2008, Urgenda has advocated for governmental and non-governmental action with a view to create a 'sustainable and circular economy powered by renewable energy and green resources'. 16Drawing on the Dutch tradition of NGO-led reform, 17 Urgenda requested the Dutch government to take more aggressive, or 'urgent', action on climate change mitigation. 18The State Secretary for Infrastructure and the Environment responded to Urgenda's specific request for more ambitious GHG emissions reduction targets by pointing to the potential risks of overly ambitious unilateral action in the absence of international commitments to do the same (for example, carbon leakage and the limited impact of Dutch emissions on a global problem). 19In response, Urgenda, together with 886 individual plaintiffs, brought a class action against the Dutch Government, specifically the Ministry for Infrastructure and Environment, on 20 November 2013. 20Urgenda's summons centered on their request for a mandatory order 'directing the Dutch State to take action to limit the amount of [carbon dioxide] CO 2 emissions to 40% below the 1990 level by 2020.' 21 This claim was later expanded with several supportive claims.The Court restated and grouped Urgenda's claims into: firstly, several points for declaratory relief; 22 and secondly, the request for an order to act (mandatory order) 23 with respect to more ambitious emission reduction policies. 24ith respect to the declaratory relief, Urgenda sought the recognition of a number of facts regarding climate change as legal facts. 25Urgenda's claim regarding the mandatory order was specified to include: a reduction of emissions by 40% compared to 1990, but a minimum of 25%, by 2020; 26 or a reduction of at least 40% compared to 1990, by 2030. 27n brief, the Court rejected Urgenda's claims for declaratory relief on the basis that any declaration of fact had become irrelevant in light of its order to act. 28However, in reaching its judgment, the Court discussed the current state of climate science and any international political and legal consensus on climate change at length, 29 as the 'legal and policy context' on which their decision would be based.In doing so, the Court accepted 'as  23 There are several legal translations available for the order to act issues by the Dutch court (including mandatory order, injunctive relief, and specific performance).The possibility to request such an order is set out in Section 296 of Book 3 of the Dutch Civil Code. 24Ibid., para.3.1 (7).In addition to requesting an order that would force the Dutch government to reduce emissions, Urgenda requested an order that would force the Dutch government to provide information about emission reduction policies to the Dutch public via newspapers and the governmental website (para.3.1, points (8) and (9). 25 Ibid., para.3.1.Specifically, Urgenda requested the Court to declare that: (1) Due to the emission of greenhouse gasses, the earth's atmosphere is warming.According to the best scientific knowledge, this will result in dangerous climate change, unless we urgently and significantly reduce these emissions; (2) 'Dangerous anthropogenic climate change' means an increase in average temperature of 2˚C or more, compared to preindustrial times.This will be a significant threat to large groups of people and human rights globally; (3) The Netherlands has one of the highest per capita emissions rates in the world; (4) The collective emissions of the Netherlands are 'onrechtmatig' (illegitimate); (5) The Dutch government is liable for Dutch collective emissions; (6) The Dutch government will be acting illegally if it has not reduced total Dutch GHG emissions by 40%, or at least 25%, compared to 1990, by 2020 [primary claim]; The Dutch government will be acting illegally if it has not reduced total Dutch GHG emissions by at least 40% compared to 1990 by 2030 [subsidiary/ alternate claim]. 26Ibid., para.3.1 (7) primary claim. 27Ibid., para.3.1 (7) secondary/alternate claim. 28Ibid., para.4.105. 29Ibid., paras 2.34 -2.70.fact' findings of the Intergovernmental Panel on Climate Change (IPCC) regarding dangerous anthropogenic climate change, 30 and the link between climate change and GHG emissions. 31hese findings form the basis for the Court's holding that there is sufficient scientific consensus regarding the causes and effects of climate change, and that the Dutch government shares in this consensus by signing and ratifying international agreements (including the Cancun agreements32 which confirmed that any temperature rise above two degrees Celsius from 1990 levels constitutes 'dangerous anthropogenic climate change') as well as accepting reduction targets mandated by the EU. 33he key disagreement between the two parties revolved around the urgency with which these reductions should take place.In issuing its mandatory order to the Dutch government, the Court supported Urgenda's position that the current Dutch policy for 2020 is insufficient in light of climate science and international climate policy. 34The order instructs the Dutch government to (create policies that will) reduce Dutch GHG emissions by at least 25% compared to 1990 by 2020 -a more ambitious goal than the existing 17-20% reduction commitment. 35Failure to put in place such reduction policies trigger the government's duty of care towards the Dutch population and consequent liability for endangerment. 36The legal basis for this duty of care is Section 162 of Book 6 of the Dutch Civil Code (Section 6:162), which details liability for 'tortious acts'. 37efore discussing the Court's treatment of this article in more detail, the preliminary challenge with respect to Urgenda's standing must briefly be considered.Standing has long been a stumbling block for parties to climate change liability litigation. 38In the US, questions of standing are closely linked to those on the separation of powers, as the type of question brought by the plaintiffs can be decisive for the court's ability to hear the case. 39Similarly, http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf#page=2. 33Ibid., para.4.31. 34Urgenda, n. 6 above, para.5.1. 35Ibid., para 5.1 -The Court also ordered the Dutch government to pay for Urgenda's costs but also rejected Urgenda's claim for an order to inform as invalid.It held the order had no basis in law and that given that it is not yet clear what action the order to act will result in, it would not be reasonable to force the Dutch government to provide any information to the public (para.4.107).The existing Dutch reduction commitments are based on its EU obligations, which in turn are based on its international commitments under the UNFCCC and Kyoto Protocol systems. 36Ibid., para.4.85/86. 37See in detail Section 3 below. 38Peel & Osofsky, n. 10 above, at p. 308 observe that whereas standing is a real issue in the US, it has been much less problematic in Australia, where practical concerns, such as the costs of litigation, provide a different type of barrier to litigation. 39For more detailed discussion on the relationship between the political question doctrine, displacement (the judiciary infringing on the competence of the legislature or executive) and standing, see Peel  the Dutch government questioned Urgenda's standing, as well as the separation of powers implications of the action.The Court treated these questions as separate, considering the separation of powers question relevant for its ability to grant an order to act, but not with respect to the requested declaratory relief. 40As to the question of standing, the Court supported the position of environmental interest groups or (charitable) foundations, such as Urgenda, with little reservation. 41s Urgenda was acting both on its own behalf and on behalf of the 886 individuals that had joined the suit, the Court divided the question of standing in two parts.Under the Dutch Civil Code, any legal person wishing to bring a civil claim must demonstrate direct and individual concern. 42As a charitable foundation, Urgenda's direct and individual concern is demonstrable through its statutes; it is empowered to bring a claim on behalf of the public or the collective interest that it has been founded to protect. 43he Dutch government did not challenge Urgenda's standing insofar that Urgenda claimed to be acting on behalf of the Dutch people with respect to GHG emissions taking place on Dutch soil.It did however question whether it was possible for Urgenda to act on behalf of future generations of Dutch citizens, and rejected the possibility that it could act on behalf of current or future generations of citizens of countries other than the Netherlands. 44s a preliminary issue, the Court underlined that the Dutch Civil Code aims to support claims such as Urgenda's. 45Accordingly, an environmental organization is empowered to bring a claim furthering the protection of the environment without having to identify, or act on behalf of, a specific group of people in need of protection. 46More specifically, the Court considered Urgenda's statutory aim of creating a 'more sustainable society, starting in the Netherlands' 47 to be inherently intergenerational and transboundary, providing Urgenda standing with respect to all elements of its claim. 48The Court leaves the question of Urgenda's standing as the representative of the 886 individual claimants unanswered on the basis that consideration of these individual interests would not have altered the Court's judgment.Any individual or direct concern on their part could not be shown to be sufficiently distinct from Urgenda's to warrant standing for these individuals separate from Urgenda. 49he Court denied the existence of any directly enforceable (individual) right based on the European Convention on Human Rights (ECHR),50 or the international 'no harm' principle, but rather referred to these provisions as meaningful in the interpretation of its duty of care under Section 6:162. 51This brings us back to one of the core questions raised by the District Court's ruling: does the legal basis for liability in Urgenda -the Dutch onrechtmatige daad (tortious act) -have suitable equivalents to provide a basis for similar actions in other jurisdictions?

A Duty of Care for the Climate
Climate change jurisprudence can be organized along several vectors: by the relative centrality of climate change as motivation for the litigation; 52 the public or private nature of the plaintiff/defendant; 53 as pro-or anti-regulatory; 54 or as proactive or reactive. 55In addition, different legal bases may be used to force, or prevent, a certain type of behaviour from a specific actor.Examples include statutory duties, common law claims, customary or treatybased international law, and constitutional or human rights.Within this rich body of jurisprudence, the Urgenda judgment occupies a unique position, as the first decision to order a state to ensure the reduction of GHG emissions for reasons other than statutory mandate. 56he Court's mandatory order is based on Dutch tort law, specifically negligence, as set out in Section 6:162.In order to establish negligence on the part of the Dutch government, a duty of care must be found to exist that imposes a responsibility on the Dutch government to shield Urgenda (and those whom it represents) from harm caused by negligent behaviour. 57o ascertain the existence and extent of the Dutch government's duty of care, the Court set out to determine 'whether the existing mitigation policies are acceptable in light of the need to prevent dangerous anthropologic climate change, given the government's discretion in adopting said policies'? 58If not, Urgenda's claim that the Dutch government's policies were negligently endangering the Dutch people in breach of its duty of care would have to be upheld.
Paragraph 2 of Section 6:162 defines the standard of care to be applicable to the Dutch tort of negligence (onrechtmatige daad) as a 'social standard of due care'.The case law of the Dutch Supreme Court has developed four questions that determine the scope of this standard of care. 59The District Court distilled five considerations specific to (the scope of) the government's duty of care with respect to Urgenda from these four questions, namely: (i) The nature and scope of the damage caused by climate change; (ii) The foreseeability of the damage; (iii) The likelihood of dangerous anthropogenic climate change; (iv) The nature of the government's act (and omissions); and (v) The discretion that the government may exercise based on public law.In answering these questions, the Court specifically took into account present-day scientific consensus, (technical) availability of mitigation measures, and the cost-effectiveness of these mitigation measures. 60In parallel, Urgenda submitted several additional legal bases for the existence of a duty of care on the part of the Dutch government through Dutch constitutional and international law. 61The Court rejected the existence of any directly enforceable rights based on these provisions, both with respect to Urgenda as well as the individual claimants.Instead, the Court underlined their importance for the interpretation of the standard of care under Section 6:162, 62 and the five considerations set out above.
With respect to the nature, foreseeability and likelihood of damage, the Court found that the government has a far-reaching duty of care, as the risk of dangerous climate change is high and the related damage severe. 63The government's ability to control (private) emissions within its territory means it must provide the legal and institutional framework for mitigation. 64The measures necessary to achieve 'sufficient' mitigation were found to be neither disproportionally costly nor technologically impossible. 65Considering these scientific 58 Urgenda, n. 6 above, para.4.63. 59How apparent is the danger?How likely is the danger to manifest itself?How serious is the danger (i.e. property damage or personal harm)?And, how onerous would it be to take necessary preventative measures?Hoge Raad   63 Ibid., para.4.65. 64Ibid., para.4.66. 65Rather, delayed action would be less cost-effective in the long term, see ibid., para.4.73.and legal realities, the Court held mitigation to be essential in preventing dangerous climate change and considered that the government's policy discretion in addressing this issue was therefore much restricted. 66In light of the existence and scope of the government's duty of care (mitigation to a level that prevents dangerous anthropogenic climate change), 67 the Court held that current Dutch policies are insufficient and cannot be justified on the basis of excessive cost or technical impossibility. 68aving established a duty of care, the Court went on to consider issues of causation and harm.The Court deemed the (increased) risk of future harm to be sufficiently concrete to trigger the government's duty of care. 69As such, the harm need not yet have materialized for Urgenda's claim for a mandatory order to be successful.
Causation has proven to be problematic in climate change litigation since the traditional 'but for' test typically cannot be satisfied; dangerous anthropogenic climate change is triggered by the accumulation of GHG emissions over time and space, not by the actions of one specific actor.The Dutch District Court held that the lack of individual responsibility of Dutch government for the (future) harm of climate change does not negate its duty of care or break the chain of causation. 70Urgenda had proposed an alternative interpretation of the government's liability, based on a pro-rata calculation of the share of Dutch emissions within global emissions.The Court followed Urgenda's reasoning only insofar as the government's argument regarding the negligible effect of Dutch emissions on climate change was rejected. 71ather than adopting Urgenda's pro-rata approach, the Court primarily referenced the Kalimijnen case, in which the combined chloride dumps by various parties in France, Germany, Luxembourg and the Netherlands caused costly pollution to the Rhine, but no one party could be identified as being solely responsible for the entire harm. 72Although there are distinct differences between the Kalimijnen case and Urgenda, the Court saw sufficient overlap to hold that it was unnecessary for Urgenda to fulfill the requirements of the 'but for' test.The Court also used the Dutch mitigation goals under the Kyoto Protocol to the UNFCCC 73 as evidence of the government's commitment to reductions that may have been considered disproportionately high relative to its own emissions. 7466 Ibid., paras 4.74 -4.77.The Dutch government did not contest its responsibility to take mitigation or adaptation measures, but rather questioned the required scope of the measures before 2020, see infra para.4.64. 67Ibid., para.4.83. 68Ibid., paras 4.84 -85. 69Ibid., para.4.89. 70Ibid., paras 4.79 and 4.90.See also Massachusetts v. EPA, n. 39 above ('While it might be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it […] A reduction in domestic emission would slow the pace of global emissions increase, no matter what happens elsewhere').) 71The government showed that the ordered reduction amounts to 0.04 -0.09% of global emissions, see Urgenda, n. 6 above, para.4.78. 72 In sum, the Court established an extensive duty of care on the part of the Dutch government, which calls for the implementation of ambitious GHG mitigation policies in order to avoid negligence through endangerment under Section 6:162.
The non-statutory basis for the Court's order to act distinguishes Urgenda from previous climate change litigation in which mandatory orders have been based on statutory obligations. 75This raises the question as to whether suitable equivalents to the Dutch onrechtmatige daad can be found for similar actions in other jurisdictions?Several elements of the judgment could prove particularly pertinent to the further development of climate change litigation, provided their application can be extended beyond the Netherlands.A comprehensive comparative survey of the tort of negligence across jurisdictions is outside the scope of this contribution, 76 but some preliminary observations may be offered concerning the US and the UK. 77he first point of investigation is whether an action in tort could be mounted against the government in other jurisdiction.In the he US legal system, we encounter obstacles that are absent from the Netherlands: unless the US federal government has explicitly waived its immunity, federal sovereign immunity makes it impossible for it to be sued in tort or on the basis of contract. 78This is different for with respect to individual US states, especially if they have incorporated public trust obligations in their constitutions.Pennsylvania, for example, has included an Environmental Rights Amendment into its constitution, which the Pennsylvania Supreme Court has interpreted as creating trustee obligations on the state government. 79Such trustee obligations could be viewed as imposing a duty of care similar to that under Section 6:162 of the Dutch Civil code, particularly since the latter was also interpreted in light of a constitutionally enshrined trustee obligation. 8075 E.g.Massachusetts v. EPA, n. 39, above, is about interpreting the statutory duty of the US EPA to regulate air pollutants. 76 The parallel between American state law and Dutch law should however not be overstated.Some US commentators have suggested that in states with public trust obligations, the Urgenda ruling would be very persuasive and could lead to more ambitious state implementation of, for instance, the Clean Air Act (CAA). 81However, several clouds obscure this bright prediction.Procedurally, challenges relating to the interpretation and application of the CAA are regulated under statute, which reduces the value of a tort-based claim. 82olitically and legally, states have (very) limited ability to go beyond, or against, federal policy regarding international commitments. 83While the federal government has thus far been tolerant towards state action on climate change related issues, 84 it by no means endorses such action and it is unclear at best what the federal response would be to mandatory orders from state courts. 85The most promising course of action for more ambitious GHG mitigation policies therefore continues to be to pressure the US Environmental Protection Agency (EPA) towards a more ambitious interpretation of its mandate to regulate GHGs, for which statutory avenues are available. 86The added value of an action in tort against individual states within the US remains limited given the current restrictions. 87n terms of governmental tort liability, the UK position is much more similar to that of the Netherlands, as proceedings in tort and contract can be brought against the Crown acting as the government and against individual ministers. 88Moreover, as a EU Member State, the international obligations of the UK are comparable to those of the Netherlands.6 McKinstry, n. 82 above, submits that Urgenda provides authority for the interpretation of national laws in light of international obligations.This argument is problematic for several reasons: firstly, the US did not ratify the Kyoto Protocol which restricts its obligations.Secondly, this is not in fact the core holding in Urgenda.While international and national mitigation obligations were taken into account by the Court, this interpretation would be far less powerful without the tort foundation of §6:162 Dutch Civil Code.The importance of Urgenda as providing an interpretative obligation must be considered carefully and in light of these two factors. 879 For other jurisdictions, see also the comparable judgment: Environmental Defense Society v. Auckland Regional Council and Contact Energy Ltd [2002] 11 NZRMA 492 (New Zealand Environmental Court) (in which the scientific evidence on the link between emissions and climate change damage was also accepted but the efficacy of imposing measures was questioned, on which basis the appeal was rejected).
The Dutch Court's treatment of causation in Urgenda differs significantly from that of the British courts in comparable cases. 90The establishment of negligence under English law requires the breach of a duty of care by the defendant and foreseeable damage resulting from that breach. 91For environmental harm, particularly climate change, it is difficult to prove that the harm was foreseeable and/or caused by the claimant due to the plurality of causes and scientific uncertainty regarding causation. 92Thus far, the UK Supreme Court has dealt mainly with harm caused by multiple defendants in the context of work-related health injuries, such as lung cancer caused by asbestos. 93In these cases, courts have held that claimants did not have to prove causation between the behaviour and the harm; rather, they have to show that the defendant's actions 'materially increased the risk of harm'. 94Moreover, if it creates an inequitably onerous burden for the claimant, the burden of proof may be reversed.In such cases, the defendantmust show that, on the balance of probabilities, (s)he did not cause the harm. 95The Dutch District Court did not address any of these questions in its rather succinct assessment of causation. 96Provided the decision is not overturned on appeal, the extremely limited grounds for causation given by the Court could reduce its relevance for jurisdictions such as the UK, as it does not address many of the questions typically posed by courts in this jurisdiction.
In conclusion, by basing its order to act on the tort of negligence, the Dutch District Court took a pioneering decision within climate change litigation.Yet the 'exportability' of this holding to other jurisdictions is not self-evident or unproblematic.At present, the judgment may be a valuable example of how liability through negligence could be used to stimulate government action -not as a blueprint for mandatory orders in other jurisdictions.See Fairchild v. Glenhaven Funeral Services Ltd [2002] 3 WLR 89. 94 From the 16 th century onwards, separation of powers has been considered an essential feature of democracy and good governance. 97Most modern constitutions stipulate the separation of function and personnel between the three branches of government to prevent a concentration of power in any one branch or person.As such, separation of powers provisions typically go hand in hand with a system of checks and balances, which allows branches to 'check' the potential abuse of power by others.The judiciary plays an essential role as its independence allows it to review acts by both the legislature and the executive without itself being susceptible to review by these bodies.The flip side of judicial independence is its limited democratic mandate.Also, to ensure that the judiciary does not overstep the boundaries of its mandate, there are limits to what types of acts may be reviewed, on what basis, and with which consequences. 98As is the case for tort law, the presence of a concept of the separation of powers across jurisdictions should not be confused with a common understanding of its attributes or implications.The entitlements and obligations of the various branches of government are interpreted differently across jurisdictions even if they incorporate a concept of separation of powers.

Separation or
The Dutch constitutional system is organized through three branches of governmentthe trias politica -but their relationship is not one of strict separation. 99Rather, it is a system of balance within which the judiciary is charged with reviewing the legality of government action in individual cases.In Urgenda, the Court emphasized that the effect of judicial decisions is typically restricted to the parties involved in a specific case.The mandatory order in Urgenda challenges this presumption, as any subsequent governmental (in)action will clearly have direct and indirect effects on third parties.The District Court took the view that the potential impact of its judgment did not affect its ability to rule on, or award, the mandatory order, provided that the government's ability to (better) balance societal interests was treated with sufficient deference. 100The government challenged the Court's authority to award the mandatory order based on the Court's lack of democratic legitimacy, and the impact of the judgment on the position of the Netherlands in international negotiation. 101The Court did not find these arguments persuasive and held that the mandatory order was firmly within its competence. 102As the government retained discretion on how to implement the mandatory order, the Court did not encroach on the government's executive or legislative powers.
Within Dutch academia, much has been written about Urgenda in the lead-up to the judgment.The main issues centered on the ability of the judiciary to take decisions in areas of scientific uncertainty and political sensitivity.Proponents of public interest litigation in the 97 101 Ibid., para.4.100. 102On the specific issue of the democratic mandate of the judiciary, the Court underlined the legislative foundations of its position, which themselves were the result of a democratic process, ibid, para.4.97.
Netherlands have emphasized the ability of the courts to act without concern for re-election or other forms of political accountability, which may allow for forceful decision taking on sensitive issues. 103The added value of judicial progressivism under conditions of scientific uncertainty is more contentious.Enneking and de Jong provide a very balanced discussion about the strengths and weaknesses of the court in these circumstances, with particular regard to the type of risk that climate change forces us to consider. 104The judicial process in the Netherlands does not allow for the judge to gather information in addition to that provided by the parties. 105Enneking and de Jong suggest that the abstract estimation of risk, 106 without the need to take into consideration the economic feasibility, societal impact of its decision, or policy design features, may allow the Court to push through political stalemate on certain issues. 107his pragmatic approach has both legal and democratic limits.Firstly, the jurisdiction of national courts is restricted, which is particularly relevant for global problems such as climate change. 108Secondly, while the pragmatic approach may be particularly useful for politically divisive issues, complaints of judicial overreach will also be more likely in these cases.Thus far, the Dutch Supreme Court has balanced the two issues by leaving ample discretion to the legislature. 109In Urgenda, the District Court claims to leave similar discretion to the Dutch government, as the method of mitigation is not detailed in the order. 110owever, this argument is unconvincing as the order contains a comparatively high level of specificity, 111 which severely reduces the government's discretion with respect to mitigation options.
Notwithstanding the District Court's own view of its position within the trias politica and the appropriateness of its judgment, many view the imposition of a minimum emissions reduction goal on a government as unacceptable judicial activism.Jurisdictions that follow a more rigid interpretation of the separation of powers doctrine will provide very limited possibilities for a court to impose similar obligations.In the US, the protection of the separation of powers between the judiciary and the legislative and executive takes place through two key doctrines: the political questions doctrine and the displacement doctrine.While lower courts have entertained the political questions exception in climate change related cases -a recognition that the matter raised is of a primarily political rather than legal nature and therefore should be left to the legislative and/or executive -the Supreme Court has explicitly set aside this issue in the context of public nuisance. 112Through the Supreme Court ruling, the political questions doctrine has lost much of its force in blocking climate change litigation from the courts. 113The displacement doctrine however continues to be applied to climate change litigation.Under this doctrine, statutory powers given to agencies 'displace' the power of the judiciary to address the issue at hand via different routes, such as common law public nuisance. 114Given the non-statutory basis of the Urgenda judgment, this doctrine may prove particularly powerful in restricting its application outside the Netherlands. 115omparatively, a challenge against the Canadian government's decision to withdraw from the Kyoto Protocol was dismissed in light of the executive branch's exclusive prerogative to sign and withdraw from treaties. 116Similarly, the Canadian federal court held that there was no justiciable duty for the government to comply with the Kyoto Protocol more generally. 117In Australia, challenges have not been barred on the basis of separation of powers arguments but this might be due to the fact that most cases, and requested orders, are more firmly within the realm of traditional judicial review, in which the courts are not asked to overstep their mandate. 118Other jurisdictions have seen the award of mandatory orders, but only on the basis of pre-existing statutory obligations. 119In light of our earlier comparison, brief mention of the UK's position is also warranted.While the UK incorporates some functional and personal separation of powers, the principle of parliamentary sovereignty prevents the British Parliament to be bound by anything or anyone, including its own legislation. 120The award of a mandatory order such as that in Urgenda would therefore be highly unlikely and ultimately ineffective as Parliament cannot be restrained. 121As such, any Parliamentary Act that stipulates a maximum level of emission reduction would not be reviewable. 122ome have argued that the courts provide an alternative forum for parties that have been unable to effectively voice their views in the political arena, particularly on the issue of climate change. 123However, the fact that the judgment in Urgenda aims to have a proregulation effect in the area of climate change mitigation does not mean it is inherently legitimate; other jurisdictions have seen equally or more effective anti-regulation campaigns pushed through the courts. 124In the US, many of these challenges have been brought as a response to the pro-regulation 'victory' in Massachusetts v. EPA. 125A similar backlash could follow in the Netherlands even if the Urgenda judgment survives appeal.In terms of constitutional doctrine, the Urgenda ruling ties in with long-standing questions on the position of the courts and the legitimacy of the judicial process.In the enthusiasm regarding the pro-environmental outcome of Urgenda, the perceived desirability of the outcome must not be seen as a cure to the democratic legitimacy concerns that this mandatory order raises.

Urgenda: Turning the Tide or Drop in the Ocean?
This article set out to answer three questions regarding the meaning of Urgenda for climate change litigation and policy; the first and second of which concerned the 'exportability' of the judgment in terms of the legal basis for the decision and its impact on the constitutional division of power between the branches of government.It is too early to definitively judge the importance of Urgenda as much will depend on possible appeals by the Dutch government and their outcome.However, the preliminary discussion in this article shows that the specific legal context of the case restricts its exportability based on the current state of the law in some of the most important climate change litigation jurisdictions.Even so, the academic, political and judicial discussions following Urgenda may prove valuable in their own right, especially in light of the upcoming UNFCCC COP-21 to be held in Paris in December 2015, during which Parties are expected to adopt a new global climate agreement. 126This brings us to the third and final question; will Urgenda lead to more ambitious governmental action on climate change mitigation?
The answer depends on the timeline and on whether the focus is on national, European, or global consequences.There have already been tangible consequences of the judgment within the Netherlands, including the call for a parliamentary debate on the government's climate policies, and the political debate will likely continue as the case goes through various stages of appeal. 127In Belgium, a very similar case -Klimaatzaak -is currently pending before the court and the Dutch judgment has raised hopes for a climate-friendly outcome. 128In the short term therefore, Urgenda may have a signaling effect, which is particularly relevant in light of the upcoming Paris Conference.
In Urgenda, the Dutch government emphasized its limited discretion with respect to climate policy given the EU's competence in this policy area.Whereas the government's arguments regarding its inability to reduce more than the EU norm under, for example, the EU ETS were judged unconvincing, some complications do arise from EU membership. 129or example, it is unclear what will happen with any 'over-compliance' achieved by the Netherlands; the EU may redistribute these 'extra' allowances to help other Member States to achieve their goals, thereby leveling out reductions within the EU despite an increase in Dutch reductions and negating the aim of the Court's mandatory order. 130Similarly, the EU negotiation position for the Paris summit has been finalized and its intended national contributions will be communicated to the secretariat of the UNFCCC by November 2015. 131uropean leaders agreed upon the EU's negotiation strategy during the European Summit of October 2014, establishing a minimum reduction of 40% compared to 1990 by 2030.132 The potential signaling effect of Urgenda is thus diluted and complicated through the overlapping Dutch and EU legal contexts.The District Court is a Dutch and a European court, bound to apply and uphold European law as well as Dutch law, yet very little attention was paid to this obligation by the District Court.Equally, the scholarly debate on the legal and constitutional implications of Urgenda has left the European dimensions relatively unexplored.This is in part due to the limited relevance of EU law for national tort law and the internal institutional organization of the Member States.133 Nevertheless, in order to understand the role that climate change litigation can play within Europe, the EU dimension cannot be ignored.The two-level game between national and European 'government' means that political costs of action (and inaction) can be externalized and accountability is reduced.The Dutch government's attempt to 'hide' behind EU-imposed reduction targets is a case in point.In this political climate, achieving change through the democratic process can be more costly than achieving a victory through the courts.However powerful these judgments may be, they cannot replace the democratic process, domestically or at the EU level. In me, this might prove to be the most powerful 'signal' of Urgenda.128 More information is available at: http://www.klimaatzaak.eu/en/.129 See Urgenda, n. 6 above, para 4.80.The government argued specifically that it would not be allowed to increase reductions in EU ETS sectors due to EU regulation.The Court disagreed, as the EU goals are minimum levels rather than reduction ceilings.In its oral pleadings, the government admitted that it would be legally and factually possible to go beyond EU reduction goals.130 Ibid.; see also McGhee v. National Coal Board [1973] 1 WLR 1 (McGhee), at 9. Nevertheless, the issue of the foreseeability of the harm remains, see J. Steele & N. Wikely, 'Dust on the Streets and Liability for Environmental Cancers' (1997) 60(2) Modern Law Review, pp.265-75, at 265. 95 McGhee, n. 94 above, p. 6 ('where a person has, by breach of duty of care, created a risk, ad injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause') as quoted in S. Deakin, A. Johnston & B. Markesinis, Markesinis and Deakin's Tort Law (Oxford University Press, 2012), p. 225.The holding in McGhee on this point has not been without controversy -see Deakin, Johnston & Markesinis, above, pp.225-8. 96Urgenda, n. 6 above, para.4.90.
for Climate Change-related Damage (Eleven International Publishing, 2013) (on domestic litigation on interstate/ international liability).15SeealsoM.Peeters, 'Europees Klimaatrecht en Nationale Beleidsruimte' (2014) (89)41 Nederlands Juristenblad, pp.2918-25, at 2924.16Urgenda mission statement, available at: http://www.urgenda.nl/over-urgenda/missie. 17 It is worth noting that whereas NGOs have traditionally played an important part of the public debate, public interest litigation such as that pursued by Urgenda is a relatively novel development in the Netherlands, see L.
See generally: Special Issue of the King's Law Journal on European Tort Law (2009 (20(2)), specifically K. Together with Australia, these two jurisdictions have generated the majority of climate change jurisprudence thus far.More importantly, these jurisdictions hold comparable, but not identical international and, for the UK, EU mitigation commitments.See the US and the UK commitments anchored in the Cancún Agreements at the United States, 174 U.S. 373, (19 S.Ct.765, 43 L.Ed. 1011).Federal sovereign immunity has been waived in only very few cases, e.g.under the Federal Tort Claims Act (Federal Employees). 79Art.I, § 27 of the Constitution of the Commonwealth of Pennsylvania; Robinson Township v. Commonwealth of Pennsylvania, 83 A.3d 901, (Pa.2013). 80Art.21 of the Dutch Constitution: 'It shall be the concern of the authorities to keep the country habitable and 77 78 See Price v.
See R. McKinstry, Jr., 'Potential Implications for the United States of the Urgenda Foundation v Netherlands Decision Holding that the UNFCCC and International Decisions Required Developed Nations to Reduce Emissions by 25% from 1990 Levels by 2020' (17 July 2015), available at: http://ssrn.com/abstract=2632726. 82Clean Air Act, 42 U.S.C. § §7604, 7607. 83Executive branch has constitutional authority to make treaties with the consent of the Senate, see US Constitution, Art. 2 §2 cl. 2, §3. 84See e.g.L. Wexler, 'Take the Long Way Home: Sub-Federal Integration of Unratified and Non-Self-Executing Treaty Law', (2006) 28(1) Michigan Journal of International Law, pp.1-48, at 16-20. 85The authority of foreign decisions in American courts has traditionally been limited and federal law would trump state law, also state constitutions.See L.H. Goulder & R.N. Stavins, 'Interactions between State and Federal Climate Change Policies', in D. Fullerton & C. Wolfram (eds), The Design and Implementation of U.S. Climate Policy (University of Chicago Press, 2012), pp.109-21.
See Crown Proceedings Act 1947.See generally: C. Booth & D. Squires, The Negligence Liability of Public Authorities (Oxford University Press, 2006); D. Fairgrieve, State Liability in Tort: A Comparative Law Study (Oxford University Press, 2003).
Balance of Powers? 90See, e.g., RWE Npower Renewables v. East Lindsey DC (Planning Inspectorate Decision, 2011); Veolia v. Shropshire CC (Planning Inspectorate Decision, 2012); Pugh v. Secretary of State for Communities and Local Government High Court of Justice Queen's Bench Division Planning Court [2015] EWHC 3 (UK); North Cote Farms Ltd v. Secretary of State for Communities and Local Government High Court of Justice Queen's Bench Division Planning Court [2015] EWHC 292 (UK).The US courts are more sympathetic to the Dutch approach and are also quoted in Urgenda's pleadings, see n. 70 above. 91S. Bell, D. McGillivray & O. Pedersen, Environmental Law, 8 th ed (Oxford University Press, 2013), p. 371. 92See Cambridge Water Co. v. Eastern Counties Leather plc [1994] 2 AC 264 on foreseeability and state of scientific knowledge.