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Emissions abatement



09/10/2018

Urgenda Climate Change Judgment Survives Appeal in the Netherlands

By Jonathan Verschuuren (TLS)

Today, the Court of Appeal in the Dutch city of The Hague rendered its judgment in the Urgenda case. As explained here, in 2015, the District Court decided that the Dutch State acted negligently and therefore unlawfully towards the environmental NGO Urgenda by implementing a policy aimed at achieving a GHG emissions reduction for 2020 of less than 25% compared to the year 1990. The government of the Netherlands appealed the case mainly because it objected against the interference by the court with the content of government policies which should be discussed in Parliament rather than in Court, following the principle of separation of powers.

Climate change impacts affect the enjoyment of human rights: courts have to intervene

In another sensational judgment, the Court of Appeal today rejected all objections by the State in firm and straightforward language. The Court of Appeal stated that there is an imminent and real danger that the right to life and the right to private and family life as protected under the European Convention on Human Rights (Articles 2 and 8 respectively) will be infringed by climate change impacts. To reach this conclusion, the Court of Appeal, like the District Court in 2015, follows IPCC reports, but also resolutions adopted on all UNFCCC COPs of the past decade, which all indicate that the CO2 concentration in the atmosphere has to remain within the 450ppm limit or even within a 430ppm limit if the 1.5 degree target were to be observed. The Court of Appeal briefly summarized the impacts that are considered certain when global average temperatures reach 2 degrees Celsius (No. 44).

The State is obliged, under this human rights treaty, to take protective action. When so asked by individuals or NGOs,[1] courts are obliged to test government actions (including policies) against human rights. So no infringement of the principle of separation of powers. On the contrary: testing government actions against human rights belongs to the core of the power of courts. By only setting the required outcome of policies (at least 25% emissions reduction by the end of 2020), the court leaves it up to the Cabinet and Parliament to discuss through which policy interventions this aim will be achieved, thus avoiding interference with policy-making.

In remarkably clear language, the Court of Appeal rejected all other objections that the State had brought forward and which resemble arguments brought forward in many of the other climate litigation cases across the world. I will deal here with the most relevant ones:

Uncertainty and precautionary principle

The State argued that climate change impacts are too uncertain a basis for claims like the one by Urgenda. Here, the Court of Appeal invokes the precautionary principle. The Court of Appeal stressed the importance of the precautionary principle, which it considers a binding principle in cases like these (referring to the text of the UNFCCC and the 2009 Tatar case decision of the European Court of Human Rights). Opposite to what the State argues, it is precisely the uncertainty (especially with regard to the existence of dangerous tipping points) that requires the State to have a proactive and effective climate policy (No. 73).

Causal link

Many cases elsewhere were unsuccessful because of a lack of causal link between the government policy on the one hand and climate change impacts on the other. In this case, the Court of Appeal argues that causality is less of an issue as no damages have been claimed, just an order to implement a certain policy. In that case, it “it suffices (in brief) that there is a real risk of the danger for which measures have to be taken. It has been established that this is the case” (No. 64).

Relationship to EU policies

The State argued that it has to follow and is following EU laws and policies and cannot be required to do more, as within the EU climate laws have for a large part been harmonized. The Court rejects this statement by referring to the latest Dutch policy goals for 2030, which aim at 49% reduction, which is more than the current EU target for that year. If the State wants to do more than the EU in 2030, it cannot argue that it cannot do more in 2020. Furthermore, the State did not substantiate its claims that having a stricter policy in place than that required by the EU harms the level playing field for Dutch companies. (Nos. 57-58)

Relationship to adaptation measures

According to the Dutch government, the Court should have taken into account the adaptation policies that have been put in place to protect the Dutch population against climate change impacts. This argument was rejected too. The Court of Appeal considered it unlikely that all severe climate change impacts can be dealt with through adaptation measures. (No. 59)

Interdependence policies other countries

The Dutch government also indicated that avoiding dangerous climate change impacts requires strict policies to be adopted across the world: since it cannot influence these domestic policies abroad, the Netherlands cannot be required to reduce emissions on its own. The Court of Appeal simply rejects this by referring to the special position of the Netherlands as a rich, developed state that has gained much of its wealth through extensive use of fossil fuels. Quite humourful, it adds: “Moreover, if the opinion of the State were to be followed, an effective legal remedy for a global problem as complex as this one would be lacking. After all, each state held accountable would then be able to argue that it does not have to take measures if other states do not so either. That is a consequence that cannot be accepted, also because Urgenda does not have the option to summon all eligible states to appear in a Dutch court.” (No. 64) There was an outbreak of laughter in the Court room after the latter sentence was spoken by the president of the Court of Appeal!

2020:  too short notice

Drastic policy changes like the one ordered by the Court in first instance are unattainable, we need more time. This argument used by the State in appeal was rejected too. The Court of Appeal simply referred to the fact that the State was aware of the IPCC reports dating back to 2007, and even, originally, had a much stricter policy in place for 2020. That policy, however, was changed in 2011, following elections. It now comes back as a boomerang!

Role of future generations

In the 2015 Court judgment, the Court indicated that the State also acts unlawful towards future generations. In today’s judgment, the Court of Appeal does not repeat this, but instead argues that human rights infringements are imminent already for current generations, so there is no need to also go into the question whether legal obligation towards future generations exist. (No. 37)

We will engineer ourselves out of the problems 

The State argued that its policy goals partly rely on climate engineering (“negative emissions technologies”) through which CO2 can later be removed from the atmosphere. The Court, however, is not willing to take these future technologies into account: “the option to remove CO2 from the atmosphere with certain technologies in the future is highly uncertain [..] (and) the climate scenarios based on such technologies are not very realistic considering the current state of affairs”(No. 49).

 

Today the Dutch Court of Appeal followed the bold move by the District Court in the world’s first successful climate litigation case of Urgenda. That first judgment of 2015 has sparked many initiatives across the world to start similar proceedings. The decision in appeal shows that the legal arguments used are valid. The new decision will, in my view, therefore, further boost global climate litigation.

 

 

[1] Here, Dutch law goes beyond what is required by the European Convention on Human Rights as under case law by the European Court of Human Rights (ECtHR) environmental NGOs cannot invoke human rights in an attempt to defend the environment as a general interest. According to the ECtHR, NGOs are only allowed to represent the individual interests of their members in case their members are potential victims of human right infringements. See extensively Jonathan Verschuuren, Contribution of the case law of the European Court of Human Rights to sustainable development in Europe, in: W. Scholtz and J. Verschuuren (eds.), Regional Environmental Law: Transregional Comparative Lessons in Pursuit of Sustainable Development (Edward Elgar 2015) 363, at 371-372.


25/07/2016

Reducing Emissions from Agriculture: Australia’s Unique Approach (Part 2)

By Jonathan Verschuuren (TLS)

In my previous blog, I showed how various countries around the world are in the process of setting up offset schemes for agriculture, in an attempt to reduce greenhouse gas emissions from this sector. I also explained that Australia has a unique position as it has the longest operating system in place, and one that currently is not linked to emissions trading but is a stand-alone system. Technically, therefore, Australia’s Carbon Farming Initiative, is not an offset instrument, but a regulatory instrument aimed at achieving emissions reductions in the land use sector on its own. In this blog, I will focus on some of the results that have been achieved with the system so far, based on an empirical research that I carried out.[1] In case studies into selected CFI-projects and in a series of interviews with the key stakeholders, I searched for the experiences with the scheme in Australia, with the objective to draw lessons for other countries, including the EU as a whole, that wish to establish a policy aimed at reducing emissions from agriculture.

Sunset over rural Australia (Photo: J. Verschuuren)

Sunset over rural Australia (Photo: J. Verschuuren)

My research found that the current legislation on carbon farming in Australia provides an elaborate, yet reliable legal framework that seems well suited to assess project applications and issue credits to participating farmers who, through these projects, generated real and additional emission reductions. It was especially interesting to find that a major overhaul of the legislation in 2015, delinking the scheme from emissions trading, really pushed the scheme forward. Not having to sell credits on the volatile international carbon market, but being able to rely on long term, fixed government money (called ‘Emissions Reduction Fund’), spurred Australia’s farmers into action. It shows that it is important to create long term certainty for farmers. Farmers who want to introduce carbon farming have to implement structural changes to their farming practices with long term impacts on their business. The policy environment, as well as the agribusiness’ financial environment, has to accommodate such long term impacts. This also implies that relying on the carbon market for funding should only be done when there is long term certainty that carbon credits will earn an acceptable minimum price.

Another interesting finding is that, although Australia’s carbon farming policy and the associated regulatory framework is only aimed at achieving as much greenhouse gas abatement as possible against the lowest possible costs, many project actually have important co-benefits. These co-benefits often are an as important and sometimes even more important stimulus for farmers to convert to carbon farming than the direct financial benefits arising from selling generated carbon credits to the government. Generally, it is found that the policy is leading to the introduction of better farming methods in an overall conservative sector. These methods are not just good for combatting climate change, but have many benefits for farmers and even for food security. Vegetation projects generally reduce salination and erosion and improve water retention. Soil carbon projects were especially mentioned for having an astonishing impact on soil quality. Research indicates that an increase in the level of soil organic carbon, leads to a drastic increase of water availability and fertility, and thus to an increase in agricultural production. One respondent referred to an example he knew, of two brothers who had farmland adjacent to each other: ‘One of them was involved in a soil carbon project, the other was not. After a while, you could clearly see the difference, with much more and better growing crops on the land of the first. The other brother had to drive across his brother’s land to reach his own land and saw the difference every day.’ Although many respondents stressed that conservatism, especially among older farmers, slows down the adoption of these new climate smart practices, they all felt that the farming sector is slowly changing and is taking up these new practices. Assessing the impact of soil carbon projects, however, is complex and several stakeholders indicated that ‘we are still learning how to do it under different circumstances.’ Since the regulatory framework requires farmers to carefully monitor what is happening in the soil, a lot of new knowledge is generated. One respondent said: ‘We are in fact doing large scale experiments with soil carbon, all thanks to the Emissions Reduction Fund.’ There are many interesting case studies available remarkable results of reduced carbon emissions, better growing conditions, more water availability, and more biodiversity under such programmes as ‘soils for life’ and ‘healthy soils’.

Increasing soil carbon, therefore, has strong positive side-effects on adaptation as they increase the resilience of the land and lead to greater efficiency. Here, mitigation and adaptation go hand in hand. The same is true for some of the other sequestration methods that are allowed under the Australian scheme, such as native tree planting in arid and semi-arid areas both to store carbon and to stop degradation and salinization of farmland.

Sometimes, there are also direct economic co-benefits associated to carbon farming projects. In the piggeries sector, for example, there are producers who save A$ 15,000 (roughly € 10,000) per month on energy bills and earn an additional A$ 15,000 by delivering energy to the grid after having adopted methane capture and biogas production technology. When asked whether the CFI/ERF was the push factor, or the expected economic co-benefit, the respondent from the pork sector said that the CFI/ERF was the main driver for the distribution of this technology: ‘About half of the participating producers jumped because of the CFI/ERF push. It especially pushes medium sized producers, because it increases their payback just enough to get involved. Eighteen biogas projects in piggeries have to date generated A$ 6 million (€3.9m) a year in electricity savings and A$ 10.2 million (€ 6.6m) through carbon credits under the Emissions Reduction Fund. The Fund really was the driver for most of these eighteen producers.’ It is clear, though, that for the longer term, these co-benefits will continue to exist on a yearly basis, also without carbon credits being purchased by the government.

Grazing land regeneration project in western New South Wales (Photo: http://www.soilsforlife.org.au)

Grazing land regeneration project in western New South Wales (Photo: http://www.soilsforlife.org.au)

From these findings, the lesson can be drawn that a policy that has a wider focus on adaptation, food security, resilient and sustainable farm businesses and securing and creating jobs in the agribusiness sector, is likely to be more successful than one that only focuses on reducing emissions from agriculture. Several of the methods accepted or under development in Australia, such as those dealing with soil carbon, show that such co-benefits can indeed be achieved. Developing climate smart methodologies that not only deliver real, additional, measurable and verifiable emission reductions but also foster long term innovation and create economic, social and environmental co-benefits is essential for the success of any policy aimed at stimulating climate smart agriculture. Science has to be central in the development and adoption of methods that are accepted under the regulatory framework. In Australia, much research effort has already gone into method development. This now has to be taken to a global level. In order to avoid that every country is trying to invent the wheel, international collaboration in method development is pivotal. The aim has to be to roll out climate smart agriculture policies across the world, so as to stimulate our farmers to make a switch from conventional farming to climate smart farming.

 

[1] An article covering all the results of the project will be published in early 2017.

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This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 655565.

EU


24/05/2016

Reducing Emissions from Agriculture: Australia’s Unique Approach (Part I)

By Jonathan Verschuuren (TLS)

Not many countries have regulatory schemes in place aimed at reducing greenhouse gas emissions from agriculture. As indicated in the blog on the Paris Agreement and agriculture, the agricultural sector is responsible for almost 25% of anthropogenic GHG emissions, both through CO2 emissions caused by deforestation and peatland drainage, and through methane (NH4) emitted by livestock and rice cultivation, as well as through nitrous oxide (N2O) emissions caused by the use of synthetic fertilizers and the application of manure on soils and pasture. There is a dark cloud hanging over this because emissions are expected to rise over the coming years and decades because of an expected sharp rise in food demand. The Australian Climate Change Authority, in a 2014 climate change policy review for that country, for example, reports that the agricultural sector is expecting a doubling of demand for agrifood commodities in emerging economies in Asia, particularly China and India. It is expected that Australia is in a good position to meet this increased demand, as a consequence of which Australia’s production of agrifood is expected to increase by 77% in 2050 (from 2007 level). The Climate Change Authority in its  report is pessimistic about what that means for climate change. Because of the strong economic incentives of the global food market, increasing emissions are inevitable: the expected production growth is likely to offset emission reductions achieved through the introduction of climate smart agriculture practices and technologies.

Photo by Flickr user Oli.

Photo by Flickr user Oli.

Doing nothing, however, is no option, as this will lead to an even bigger rise in emissions. And what is more: the agricultural sector has the potential to store large quantities of carbon in soils and vegetation. Domestic regulators, however, have been reluctant to address agricultural emissions, partly because of regulatory difficulties. It is, for example, difficult to measure emissions at the individual farm level since a variety of factors determine the amount of emissions (such as the diet of individual animals, soil composition, weather systems of individual regions, the way in which fertilizer is applied, etc.). In addition to emissions, removals are relevant as well since crops and other vegetation absorb CO2 from the air, and lots of carbon is stored in soils (more carbon is stored in soils than what is present in vegetation and the atmosphere). Soil carbon may be released, or remains there, or is increased, depending on how you manage the land.

A growing number of countries is setting up regulatory schemes aimed at reducing emissions from agriculture, mostly in the form of an offsets scheme linked to emissions trading. Under these schemes, industries and energy producers can buy credits generated by agriculture, and use these partly to comply with their obligation to hand in allowances equal to their emissions. This is the case in California, Quebec, Alberta, and Ontario. Under the California ETS, two types of agricultural offset projects are accepted, both aimed at reducing methane emissions: biogas systems in dairy cattle and swine farms, and rice cultivation projects. In Alberta, agricultural offsets include a wide range of projects: nitrous oxide emission reductions, biofuel production and usage, waste biomass projects, conservation cropping, several types of projects concerning beef production, projects aimed at reducing emissions from dairy cattle and biogas production.

The country with the longest experience in this area, however, is Australia. Despite the country’s much criticized poor overall climate policy, Australia adopted a Carbon Farming Initiative (CFI) as early as 2011, which spurred farmers into action and, therefore, potentially provides the rest of the world with a model to reduce emissions from agriculture. In 2011, the CFI originally was set up as an offset scheme under its ETS. Since the repeal of the ETS in 2015 (just before trading was set to start), the initiative, now called Emissions Reduction Fund (ERF) functions on its own and is enjoying rapidly increasing attention from farmers.

Instead of having to rely on the (unreliable) international carbon market, under the ERF farmers can offer the credits that they generated to the government through reversed auctions. Farmers can obtain credits for both emission avoidance projects and sequestration projects and offer these credits to the government. The government buys up credits from projects that achieved the biggest emissions cuts against the lowest costs. Agricultural emission avoidance projects mostly focus on methane emissions reductions: methane capture and combustion from livestock manure and methane emissions reduction through manipulation of digestive processes of livestock. A third important emission avoidance project for the agricultural sector is the application of urease or nitrification inhibitors aimed at reducing fertilizer and manure emissions. Sequestration projects are for example projects aimed at sequestering carbon in soils in grazing systems, on farm revegetation, rangeland or wetland restoration, the application of biochar to the soil, and the establishment of permanent plantings on farmland.

Since 2011, an enormous amount of expertise has been built up in Australia, and a very elaborate and effective regulatory system has been developed that on the one hand seems to ensure a high level of environmental integrity, while on the other hand not overburdening farmers with costly administrative obligations. The Australian scheme, therefore, is an interesting example for the rest of the world, particularly for the EU, that has yet to tackle emissions from agriculture. A government funded, project based system of emissions reductions seems to fit well in the EU’s Common Agricultural Policy.

In May 2016, the results from the latest auction were released. After three auctions a total of 309 carbon abatement contracts have been awarded by the Australian government to deliver more than 143 million tonnes of CO2 equivalent abatement, earning the project proponents a total of A$1.7 billion (about € 1 billion). The vast majority of abatement is by vegetation projects, which often are on farmland (but not always). Carbon farming has grown into an important new income stream for farmers in Australia. In a country prone to droughts, floods and bush fires, the scheme, therefore, not only helps to reduce emissions from agriculture, it also assists in diversification of agricultural practices and leads to a more resilient sector.

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This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 655565.

EU


25/06/2015

Spectacular judgment by Dutch Court in climate change case

By Jonathan Verschuuren (TLS)

Court orders State to achieve reduction target of 25% in 2020

Palace of Justice, The Hague (photo by Flickr user Elvin)

Palace of Justice, The Hague (photo by Flickr user Elvin)

In an unprecedented and unexpected decision, a Dutch court found that the Netherlands government has acted negligently and therefore unlawfully towards Urgenda by implementing a policy aimed at achieving a reduction for 2020 of less than 25% compared to the year 1990. The court had to overcome many obstacles to reach this decision, such as the obstacle of causation (from a global perspective, the Netherlands has a relatively small contribution to climate change, so how can the Dutch State by liable for climate change damage suffered by individual Dutch citizens?) and the obstacle of the principle of separation of powers, which does not allow courts to move into politics (setting mitigation targets is usually considered to be a policy matter, of which courts should remain clear). In other countries, particularly the United States, where many climate change suits have been decided or are ongoing, these two obstacles present the main reason why most climate change cases went nowhere, so far…

In its decision of June 24th, 2015, which was rightfully translated in English as international interest in the judgment will be massive, the Court orders the State to limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, so that this volume will have reduced by at least 25% at the end of 2020 compared to the level of the year 1990. How did the Court reach this decision, and, more importantly, how did it overcome the two obstacles mentioned above?

The case was initiated by Urgenda, a foundation that was established in 2008 with the aim to stimulate and accelerate the transition processes to a more sustainable society, beginning in the Netherlands, by, among other things, legal action. More than 800 individual citizens joined the suit, so the case was lodged by Urgenda acting on its own behalf as well as in its capacity as representative of these individuals. Under Dutch tort law, NGOs are allowed to initiate public interest cases (see extensively Berthy van den Broek, Liesbeth Enneking, Public Interest Litigation in the Netherlands. A Multidimensional Take on the Promotion of Environmental Interests by Private Parties through the Courts, 2014 Utrecht Law Review 10:3). On standing, the Court not only finds that Urgenda is allowed to represent current generations, but also future generations, because the foundation is aimed at achieving a sustainable development (see judgment under 4.6-4.8). This makes this case a landmark case for the debate on intergenerational equity as well.

The question that the court had to address is whether the State acts unlawfully by “only” pursuing the reduction targets that were imposed upon the Netherlands by EU-law for 2020: a 21% reduction for sectors covered by the EU Emissions Trading Scheme (basically large industry and power stations), and a 16% reduction for non-EU ETS sectors (such as transport and agriculture). Under Dutch tort law, there are two ways in which unlawful action or inaction can be established: actions contrary to legal norms, or actions that are not contrary to written legal norms, but that are considered to be violating the standard of due care. First, the Court finds that the state did not breach its legal obligations under a range of legal instruments, such as the UNFCCC, Kyoto Protocol, various EU climate change instruments, the European Convention of Human Rights, etc.

Then, however, the Court tests whether the State fulfilled its duty of care towards its citizens. This is where the case becomes really interesting, because in order to establish what exactly, in this case, this duty of care entails, the Court relies on a large number of binding and non-binding rules and principles (such as the precautionary principle and the principle of ‘fairness’), policy statements, and even ‘scientific consensus’, to determine what can be expected of the State. The Court then finds: ‘Due to the severity of the consequences of climate change and the great risk of hazardous climate change occurring – without mitigating measures – the court concludes that the State has a duty of care to take mitigation measures. The circumstance that the Dutch contribution to the present global greenhouse gas emissions is currently small does not affect this. (…) It is an established fact that with the current emission reduction policy (…) the State does not meet the standard which according to the latest scientific knowledge and in the international climate policy is required for Annex I countries to meet the 2°C target.’

How did the Court overcome the two obstacles mentioned above: causation and separation of powers?

On causation, the Court uses earlier case law on joint liability: the fact that one actor’s contribution to damage is minor, does not allow courts to reject liability. On the contrary, this actor can, under certain circumstances, be hold liable for the entire damage by those who suffer the damage. It is then up to the targeted tortfeasor to reclaim part of these costs from the other tortfeasors. After having referred to this jurisprudence, the Court states: ‘The fact that the amount of the Dutch emissions is small compared to other countries does not affect the obligation to take precautionary measures in view of the State’s obligation to exercise care. After all, it has been established that any anthropogenic greenhouse gas emission, no matter how minor, contributes to an increase of CO2 levels in the atmosphere and therefore to hazardous climate change.’ Interestingly, the Court follows the principle of common-but-differentiated responsibilities that is one of the main principles of the UNFCCC to argue that it is only fair that the Netherlands takes a proactive approach when it comes to mitigation: ‘Here too, the court takes into account that in view of a fair distribution the Netherlands, like the other Annex I countries, has taken the lead in taking mitigation measures and has therefore committed to a more than proportionate contribution to reduction. Moreover, it is beyond dispute that the Dutch per capita emissions are one of the highest in the world.’ The Court then concludes:

From the above considerations (…) it follows that a sufficient causal link can be assumed to exist between the Dutch greenhouse gas emissions, global climate change and the effects (now and in the future) on the Dutch living climate. The fact that the current Dutch greenhouse gas emissions are limited on a global scale does not alter the fact that these emission contribute to climate change. The court has taken into consideration in this respect as well that the Dutch greenhouse emissions have contributed to climate change and by their nature will also continue to contribute to climate change.

The Court spends a good deal of considerations on the separation of powers. It apparently is very conscious of the fact that it is encroaching upon the realm of policy-making.  The government defended its policy by stating that it is working towards remaining within the 2 degrees limit. To achieve this, bigger emission cuts would be required in 2030. It was a policy decision, backed up by a majority in Parliament, to stall emission cuts a bit (also with a view to the economic crisis), and to speed up emission reductions later. According to the government, this is a legitimate political decision that should not be reviewed by courts.

The Court, however, takes a firm position in the separation of powers debate: ‘It is worthwhile noting that a judge, although not elected and therefore has no democratic legitimacy, has democratic legitimacy in another – but vital – respect. His authority and ensuing “power” are based on democratically established legislation, whether national or international, which has assigned him the task of settling legal disputes. This task also extends to cases in which citizens, individually or collectively, have turned against government authorities. The task of providing legal protection from government authorities, such as the State, pre-eminently belong to the domain of a judge. This task is also enshrined in legislation.’ According to the Court, this is exactly what the claim asks of them: provide legal protection against negligence on the part of the State. The Court acknowledges that by granting judicial review in this case, it will moving into the policy arena: ‘This does not mean that allowing one or more components of the claim can also have political consequences and in that respect can affect political decision-making. However, this is inherent in the role of the court with respect to government authorities in a state under the rule of law. The possibility – and in this case even certainty – that the issue is also and mainly the subject of political decision-making is no reason for curbing the judge in his task and authority to settle disputes. Whether or not there is a “political support base” for the outcome is not relevant in the court’s decision-making process.’

This is a firm statement indeed! The Court does acknowledge that there has to remain room for political decision-making, hence they only set the minimum reduction target of 25% reduction, without imposing the measures that need to be taken to achieve this target, nor preventing (future) decision-makers to go beyond this target. Why 25%? The court bases this decision upon scientific data, but also upon previous policy statements by Dutch authorities and upon the statement in court that a 25% emission cut in itself would not be entirely impossible to achieve. The Court rejects the policy decision to stall the reduction speed until 2030, by arguing that this approach ‘will cause a cumulation effect, which will result in higher levels of CO2 in the atmosphere in comparison to a more even procentual or linear decrease of emissions starting today. A higher reduction target for 2020 (40%, 30% or 25%) will cause lower total, cumulated greenhouse gas emissions across a longer period of time in comparison with the target of less than 20% chosen by the State. The court agrees with Urgenda that by choosing this reduction path, even though it is also aimed at realising the 2°C target, will in fact make significant contributions to the risk of hazardous climate change and can therefore not be deemed as a sufficient and acceptable alternative to the scientifically proven and acknowledged higher reduction path of 25-40% in 2020.’

There are many very important elements in this judgement that warrant further discussion and research. It is clear that the Dutch Court provided a break-through in climate change litigation, at least in the Netherlands. We have to wait and see whether this approach is copied by courts in other countries, and, first, whether this spectacular decision survives appeal. The Dutch government did not yet indicate whether it will appeal the judgement. It currently ‘studies’ the decision.

 

Update: Subsequent to the writing of this blogpost, the government of the Netherlands indeed appealed the Urgenda case. On 9 October 2018, the Higher Court in The Hague rejected all objections by the State. An explanation of this second sensational judgment is available here.   


30/05/2011

Cycling in Sydney

By Jonathan Verschuuren (TLS)

Cycling to work in Sydney is only recommended if you get a real kick out of danger and don’t really mind whether you arrive in one piece or not. Basically it involves dicing with death. In an attempt to reduce greenhouse gas emissions and relieve the pressure on Sydney’s overloaded traffic infrastructure, the government is trying to encourage people to take up cycling. Policy papers are being drawn up, short sections of cycle paths are being constructed here and there, and they have even produced a very nice plan of the city which shows the location of all those little pieces of cycle path. Many companies have installed showers for employees who cycle to work and want to shower and change before starting work, because cyclists here generally use racing bikes and wear cycling gear.

But it’s a risky undertaking. Those stretches of cycle path begin and end abruptly. When you do come across one, you’ll be happy that you can cycle safely for a while, but then when you suddenly reach the end of that particular stretch of cycle path, you’ll have to work out how to cross five busy lanes of traffic so you can continue your journey on the correct side of the road. Many roads in the city center are full to capacity. There is limited space, with as many lanes of traffic are squeezed in as possible. Basically, there’s no room for cyclists, and if you decide simply to ‘make room’, the best you can expect is to be hooted at by irritated motorists. In the worst case, car drivers will simply take back the space that you are occupying and run you off the road. Motorists tend to get angry with cyclists, which is understandable to some extent when you see how cyclists behave on the road. They are mostly tough young guys (think: broad-shouldered, tattooed Australian surfers). They use the footpath to avoid queues of traffic, cycle diagonally over intersections, ride straight through red stoplights – basically, they ignore all the rules of the road. And even the more cautious cyclists – and I count myself among them – often choose to cycle on the footpath. That is not allowed either, but in reality the police tolerate it because they understand that it is safer than cycling on the road.

Sydney still has a long way to go before cycling becomes as easy and as normal as it is in the Netherlands. But there is one similarity: on the very first day I used my bike here, it got stolen…


02/05/2011

Historic swing

By Jonathan Verschuuren (TLS)

28 March, 2011

Elections were held last Saturday for the parliament of New South Wales, the state where one third of the Australian population live (and of this third, more than half live in Sydney). These elections are crucial because the vast majority of policy issues, including environmental policy, are decided at the state level. We watched TV every night, astonished at the political ads that consisted of little more than insinuations and slurs. “What else does he have to answer for?” and other sentences along these lines. And hardly any information at all about the policy intentions of the ad’s sponsor.

The elections resulted in a historic loss for the incumbent Labor government. Never before in the history of Australia did so many districts switch their electoral preference (of the 50 Labor seats in the 93-seat parliament, there are now only 17 left). Labor had been in power here for 16 consecutive years. Until today. Wiped out, mainly through a series of internal disputes and scandals, including bribery scandals involving major projects. For many voters, the Labor coalition had become symbolic for deals in which project developers filled their pockets and for the unabated rise in the cost of living for ordinary people.

Opinion polls have shown that the climate tax proposed by the prime minister (also Labor) at the federal level, which I wrote about previously, played a crucial role in Labor’s monumental defeat in New South Wales. The coalition of the Liberal Party and National Party used this convenient little ‘present’ to underscore Labor’s role in the tenacious inflationary trends plaguing the country. High energy prices, layoffs, a real campaign of fear mongering on the climate tax issue. There were some who voiced dissent, of course, basing their opinions on lessons learned from experiences in Europe. They pointed out the number of jobs created in Germany because of the government’s commitment to renewable energy. However, this small voice of reason was drowned out completely by the bombastic rhetoric used by politicians down under.


02/05/2011

Climate tax about-face

By Jonathan Verschuuren (TLS)

10 March, 2011

The news this past week in Australia has been dominated by the government’s plans to introduce a climate tax. The proposal has provoked something of a storm. Politics and the media here in Australia are rather more polarized and populist compared to the Netherlands. Scenes that you might expect from Fox News are part and parcel of Australian TV’s daily offering. Opposition leader Tony Abbott is milking all the drama he can out of the situation, even in parliament. He says he will fight the carbon tax every minute of every day of every month of his political life. The Prime Minister, Julia Gillard, has been called a liar by a TV journalist; he came up with a nickname for her that I’m sure he thinks is really funny: “Juliar Gillard”.

What’s going on? The Labor government of Australia wants to assign a monetary value to greenhouse gas emissions as a financial incentive to reduce emissions of these compounds. A system of emissions trading was chosen for this purpose. We’ve been using a similar system in the EU since 2005. Businesses must see to it that they have enough emission trading rights. If they have a surplus of rights due to the introduction of energy-efficiency measures, for example, then they can sell them. Companies can also earn tradable rights by investing in clean energy in other countries (e.g. by financing a hydroelectric plant in a developing country). This makes reducing greenhouse gas emissions interesting from a financial point of view. Emissions trading systems like these are very complex, however, and it takes time to get them set up. This is why it has been decided to introduce a fixed price for CO2 emissions until 2015, and to let the market determine the price thereafter. The system will initially function as a fixed fee, or tax. All this has been proposed even though Gillard promised in her election campaign last year that she would tackle climate change, but not through fiscal means…

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