Environmental Law

02/05/2019

Restoration of protected lakes under climate change: what legal measures are needed to help biodiversity adapt to the changing climate? The case of Lake IJssel, Netherlands

Throughout the world, lakes are facing deterioration due to intensive economic use. Climate change is exacerbating this situation. The only way forward is through implementing massive ecosystem restoration and connectivity policies, adjusted water management, and policies aimed at assisted colonization of endangered species. Current international and EU law do not explicitly require such policies to be developed and implemented, at least not in a legally binding way. In order to discover the legal prerequisites that facilitate the adoption and implementation of climate change adaptation measures for lakes, it would be good to have a look at some of the current best practices. One interesting example of such best practices is Lake IJssel (IJsselmeer) in the Netherlands, a protected lake under the Ramsar Convention and the EU’s Natura 2000 framework. In this blogpost, I will have a closer look at the adaptation policies in place for this lake with the aim to discover the legal conditions that have to be met for the adaptation policy to be effective. This case study is part of a bigger paper on this topic that was presented at an international conference at the University of Tehran on 14 April 2019, available here.

The creation of Lake IJssel

Lake IJssel (IJsselmeer) only became an inland fresh water lake in 1932, when the former Southern Sea (Zuiderzee) was closed off from the North Sea through the construction of a dam, called the Closure Dam (Afsluitdijk).^[1] Originally, this was a sea arm, part of the estuary of the IJssel and Vecht rivers consisting mainly of marshes and shallow salt and brackish tidal waters. The sea arm was closed off from the North Sea in order to end regular floods that were occurring in the area and to create new agricultural lands to improve food security. After the construction of the dam, parts of the new lake area were reclaimed and converted into land. This land was not only used for agriculture, but also for new cities in order to reduce population pressures in the nearby Amsterdam urban area. The remaining water area became a series of interconnected inland lakes, all of which are now protected areas under both the Ramsar Convention and the EU Wild Birds and Habitats Directives.^[2] Lake IJssel also became the Netherlands’ most important fresh water reservoir for drinking water and agricultural irrigation. It is the biggest fresh water area in northwestern Europe.

Lake IJssel’s poor conservation status exacerbated by climate change

Many of the species and habitat types for which this lake has been designated under the EU Wild Birds and Habitats Directives are not in a favourable conservation status, as required by these important EU biodiversity instruments.^[3] There are several reasons for this. First, and foremost, the transition from this area from a coastal marshland area into an artificial fresh water lake had severe consequences for the naturally occurring ecosystems. A new natural equilibrium has not been reached yet. The water of the lake has excessive quantities of sediments and is increasingly low on nutrients and marshes are disappearing. Over-fishing and increasing pressure by recreation, combined with active human manipulation of water levels to allow for intensive farming and urbanization have turned the lake basically into a big tub with muddy, empty water. The number of fish and other water organisms have declined tremendously, as has the number of birds. Climate change is exacerbating this already poor situation through:^[4] increasing water temperatures (leading to reduced oxygen levels and increased harmful algae blooms), increasing intrusion of alien invasive species (such as the quagga mussel, which affects natural algae and native mussel populations, as well as power and water treatment infrastructure), increasing peaks both in low water levels caused by droughts and high water levels caused by increased precipitation and increased river water run-off, bigger impact of several chemicals, such as phosphates from agricultural run-off in case of high water situations, and chloride from upstream salt mines in France in case of low water levels in summer, bigger impacts from recreation due to longer recreation seasons, increased flood risks due to accelerated sea level rise, which will make it increasingly difficult to flow off river water into the (higher) North Sea.

Legal requirement to restore the degraded Lake IJssel

Lake IJssel was designated as a wetland of international importance under the Ramsar Convention in 2002 and as protected area under the EU Wild Birds and Habitats Directives’ Natura 2000 network in 2010. The EU Directives contain much stricter legal obligations than the Ramsar Convention and have much more legal force through the fact that EU legislation is directly binding under domestic law of the EU Member States and through an enforcement mechanism through the Court of Justice of the EU. As a consequence, the Ramsar Convention has lost much of its relevance for those areas that have also been designated under the EU’s Natura 2000 network (which is the case for all Ramsar sites in the Netherlands).^[5]

For areas designated under the EU Wild Birds and Habitats Directives, conservation goals need to be set, aimed at the specific habitat types and species for which these areas have been designated. As most of the habitat types and species for which the Lake IJssel has been designated under the Natura 2000 network are not in a favourable conservation status, many conservation goals aim at increased populations or at increased acreage for certain habitat types. The latter can only be achieved through restoration, hence restoration is a legal requirement for Lake IJssel. In order to comply with this requirement, the management plans for the lake have adopted a wide range of restoration actions, some of which focus on the climate change related measures discussed in this paper (ecosystem restoration and connectivity, adjusted management, assisted colonization). These will be discussed below. It should be noted that the management plans for Lake IJssel do not just focus on nature conservation, but on all relevant environmental issues. A range of legal frameworks apply to the lake, partly stemming from the EU, such as on water quality and flood management, partly from domestic level, such as on polluted water soils and spatial planning. Furthermore, all of these plans are part of a broader development policy for the Lake IJssel area, called ‘Agenda Lake IJssel area 2050’, covering not just nature conservation, but also water safety, (drinking) water supply, water quality, fisheries, sustainable energy, infrastructure and transport, sand  extraction, landscape conservation, culture, recreation and tourism.^[6]

Restoration plans for Lake IJssel

The first phase of the plans, which runs from 2017 until 2023, primarily aims at stopping the decline in quality and quantity of habitat types and species. To achieve that, the current plan has five main goals: improvement of marshes on the edges of the lake for breeding reed birds, creation of new sandy breeding areas for water birds that breed on sandy beaches, improvement of availability of food for birds, improvement and enlargement of certain habitat types, and more space and tranquility for birds.^[7]

Most, if not all of these goals align with the climate change related adaptation measures that are generally considered important, such as restoration and connectivity, and adjusted management. It is remarkable, though, that climate change is not mentioned a lot in the various documents detailing the restoration requirements for Lake IJssel. I assume that this is because of the already poor conservation status that requires urgent action even without climate change.

The following table lists some of the restoration measures that contribute to climate change adaptation for the lake (despite the fact that they were not specifically proposed with that focus).^[8]

Assisted colonization is not specifically addressed in the management plans. Yet, to some extend, this measure is relevant, although not connected to climate change. In the 1980s the Eurasian otter became extinct in the Netherlands, mostly due to water pollution in the previous decades. The species, however, was reintroduced and now is back in a viable population in the Lake IJssel area. Furthermore, some of the restoration measures do aim to facilitate the natural relocation of species that were not present in the area before. The latter is particularly true for the white tailed eagle that has colonized the area and has been breeding here since 2006. The artificial fish migration river mentioned above helps salmon and other migratory fish to recolonize the lake and the rivers feeding the river. The assisted relocation of soil disturbing fish species from another part of the area to the lake is considered with the aim to improve the quality of the water soil.

Enabling factors for the restoration plans for Lake IJssel

In this section, I will deal with some important enabling factors that determine the success of the plans sketched above: the available financial budget, the role of the various authorities and other stakeholders involved, and the the role of the general public.

Financial budget: The measures discussed above, go at a cost. It is, therefore, important to adopt a multi annual budget. Otherwise, the risk exists that the plans are not executed, or that implementation stops mid-way. In the restoration plans for the Lake IJssel, implementation costs for each of the measures proposed has been included. The estimated budget consists of two elements: costs for construction or establishment of the restoration measures (once off costs), and costs for the first ten years of maintenance of the restoration measures. The total amount of once off implementation costs is between 630 and 1,060 million euro plus between 41 and 89 million euro for maintenance costs for the first ten years.^[9]

The role of the various authorities and other stakeholders involved: The governance structure of Netherlands can be characterized as a decentralized unitary state. This means that central government involves the provinces, municipalities and water districts in the formulation and execution of its policies.^[10] Hence, consensus building is considered to be of vital importance and the Netherlands has a long tradition of always looking for consensus among all those involved. This tradition dates back to early coastal defense and land reclamation activities around 1200, so even predating the establishment of the Dutch State: such activities were only possible with the collaboration of everyone, and, thus through balancing everyone’s interests. This has led to the enactment of laws that have a subtle, and somewhat complex, system of joint decision-making on such topics as water management, nature conservation, and spatial planning. As a consequence, many government bodies are involved in the implementation of the restoration plans for Lake IJssel, as follows. Central government is responsible for coastal and flood defenses that are of national importance (i.e., all coastal defense systems and flood defense systems of the main rivers), as well as for complying with EU-law requirements (vis-à-vis the European Commission). Provincial governments are responsible for nature conservation, and for coordinating water management and spatial planning. Water district boards are responsible for water management (in a broad sense, including water related nature conservation), and municipal governments are responsible for local spatial planning. As the Lake IJssel area is located within four provinces, has 32 municipalities and six water districts, and since five central government ministries are involved in the broader development plans of the area, intensive collaboration among all of these actors is in order. Such collaboration is coordinated by the Minister of Infrastructure and Water. Also involved in this process are non-governmental stakeholders, such as (agri-) businesses and environmental NGOs. Environmental NGOs actually play an important role, as several NGOs own property within the protected areas.

The role of the general public: Local residents, businesses and NGOs are also involved through the regular administrative procedures that need to be followed with all government decision-making (at all levels) and that require effective public participation and access to justice. Hence, there are public hearings and other forms of public participation, and all interested parties have the right to go to court. Thanks to the intensive collaborative decision-making processes aimed at reaching consensus (as sketched above), there, generally, is broad support for the plans once they are adopted. Nevertheless, every administrative decision that is taken to implement the restoration plans, can end up in court. Often, court cases focus on the question whether a certain decision is in compliance with EU law, for example with the EU Wild Birds and Habitats Directives.

Assessment of the Lake IJssel restoration plans

The restoration measures included in the first management plan for Lake IJssel are important first steps to bring the ecological quality of the lake back to an acceptable level. Species and habitat types that are in a favourable conservation status are much more resilient to climate change than species and habitat types that are in a poor condition. The measures aimed at increased connectivity, such as the creation of a fish migration river and of new islands in the lake for the sake of nature are spectacular and have fascinating results even within the first few years after these measures were taken. It is also clear, however, that much more is needed to make the area completely resilient to climate change. Especially those measures aimed at restricting harmful human activities still need to be taken. So far, only some preliminary measures aimed at regulating commercial fishing and recreation were adopted. More restrictions, especially for commercial fishing are considered necessary, which requires redistribution of existing fish permits and closing of certain parts of the lake for fishing. More drastic limitations on shipping and agriculture will follow from restoring natural water levels. Creating more connections with the sea, between the various parts of the lake area, and with the rivers feeding the lake, would also greatly enhance the resilience of the area, but is considered to be risky from a water safety perspective. The current approach of setting small steps towards a gradual more natural ecosystem seems effective for now, but we have to wait and see whether this approach will still work when tough decisions need to be taken that are costly and will have clear negative economic side effects.

09/10/2018

Urgenda Climate Change Judgment Survives Appeal in the Netherlands

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.

12/03/2016

New predator sniffs out the Netherlands: golden jackal adds another chapter to its mysterious range expansion

In February 2016, Dutch researchers discovered unique footage captured by some of the automatic wildlife cameras – ‘camera traps’ – they had installed in the woods to study deer behaviour. Experts abroad confirmed the initial hunch that the animal in the pictures is a golden jackal (Canis aureus). Golden jackals are canids that howl like wolves but are as omnivorous as foxes, and in size are in between the latter two. The golden jackal is sometimes called the European coyote – and the coyote itself sometimes dubbed the American jackal. The ‘Dutch’ jackal was caught on camera in the extensive woodlands of the Veluwe area, which is part of the European Union’s protected area network Natura 2000.

Photo by Miha Krofel.

Whereas it cannot be ruled out entirely that the jackal was released by humans or escaped from captivity, there is nothing to indicate this. The assumption, therefore, is that the animal walked into the country by itself. Indeed, the sighting concerned – however spectacular – it did not come as a complete surprise. Biologists have been documenting an impressive expansion of the golden jackal’s range in the last few decades, northward and westward from its traditional distribution in the southeast of Europe. The drivers of this expansion are not yet fully understood. Jackals have already been spotted as far north as the Baltic states and even Finland, as far west as Switzerland, and as far northwest as Denmark. Different sightings in the west of Germany in 2015 suggested it was a matter of time before the first jackal would be spotted in the low countries as well.

The recent camera trap images constitute the first confirmed record of a golden jackal in the Netherlands ever. Although it cannot be ruled out that jackals inhabited the Netherlands (very) long ago, there is no evidence to indicate they did. This makes the jackal’s visit different from the lone wolf (Canis lupus) that made a brief but exciting trip through the Netherlands last year. As discussed in a previous blog, wolves were part of the native fauna of the Netherlands until they were exterminated in the 19^th century. The expected colonization of the Dutch countryside by wolves is therefore a proper comeback.

Given that the Netherlands constitute apparent terra incognita for golden jackals, the question arises how the species’ arrival should be appraised, and what government policy regarding the species would be most appropriate. This question has been faced in quite a few countries where jackals turned up beyond the species’ known historic range in recent years. In particular the question whether such animals are to be considered as an ‘alien species’ – whether invasive or not – has been a source of confusion. Such confusion is unnecessary. Widely accepted definitions agreed under international legal instruments (e.g., Convention on Biological Diversity, Bern Convention on the Conservation of European Wildlife and Natural Habitats) make it quite clear that the term ‘alien species’ only encompasses creatures originating from introductions outside their regular range by man. Jackals that have arrived on their own feet should thus not be regarded as such, and are not subject to international commitments concerning the control or eradication of invasive alien species.

The legal status of the golden jackal in the national legislation of the many countries where jackals have been recorded varies considerably. However, current international legal obligations limit the freedom of countries to decide how they wish to deal with golden jackals, including recently arriving ones. In general terms, the Bern Convention requires European states to keep jackal populations out of danger. Moreover, in EU member states like the Netherlands, the Habitats Directive imposes distinct limitations on national policy and management options regarding the golden jackal, including in scenarios where jackals are spreading to areas without historic records of their presence. The species is listed as a ‘species of Community interest’ in Annex V of the Directive. As the jackals venture across the EU, the corresponding legal regime travels along with them. For EU member states, this entails that any killing of golden jackals must be compatible with the maintenance or achievement of a favourable conservation status. To ensure this, the species must be systematically monitored. National policies preventing golden jackals from settling down and aiming for the species’ eradication are incompatible with obligations under EU law.

 Meanwhile, we can take comfort from the notion that our camera-trapped jackal is probably still out there somewhere, trotting along, sniffing for edibles and eventually a mate to settle down with, and blissfully unaware of the legal issues it is raising.

– – – x – – –

For more detailed discussion of the golden jackal’s European range expansion and the associated legal issues, see:

A. Trouwborst, M. Krofel & J.D.C. Linnell. 2015. Legal Implications of Range Expansions in a Terrestrial Carnivore: The Case of the Golden Jackal (Canis aureus) in Europe. 24 Biodiversity and Conservation 2593-2610

25/06/2015

Spectacular judgment by Dutch Court in climate change case

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

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 24^th, 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.   

14/05/2014

Wolves on Dutch doorstep: European law and the return of a controversial carnivore

In April 2014 automatic wildlife cameras in two German areas just across the Dutch border caught pictures showing an animal with all the looks of a wolf (Canis lupus). DNA found in wolf-like scat from the area is being analyzed to know for sure. If in future the presence of this or another wolf can be reliably established on the Dutch side of the border this would be quite an event, as the last fully confirmed sighting of a wild wolf in the Netherlands dates back to 1845. The words ‘fully confirmed’ are justified because that animal was shot dead. Whereas wolves used to occupy most of Europe, they gradually disappeared from their former ranges, chiefly because of a lack of human tolerance for their presence. The species hung on in the east of the continent, and in isolated populations in Spain and Italy. In most European countries, wolves remained only in (fairy) tales.

Canis lupus in the Lüneburg Heath wildlife park, Germany (source: Wikimedia, user Quartl)

But things are changing. Recent decades have seen a steep increase of wolves across Europe, both in terms of their numbers and the places where they occur. For instance, France and Germany – both wolf-less for many years – are now home to swiftly expanding wolf populations. These follow spontaneous re-colonizations in, respectively, Italy and Poland. Wolves travel impressive distances and the establishment of new packs has been steadily progressing westwards. The last few years have even yielded reliable records of the first wolves reappearing in Belgium and Denmark. The scene thus appears set for a natural return of wolves, whether from the German or French population or both, to the Netherlands. This would be a milestone indeed, as Holland is probably the last place on people’s minds when thinking of wolves. Already in 2011, and again in 2013, several tentative wolf sightings occurred in the east of the Netherlands, and in the spring of 2013 a wolf was camera-trapped just across the border in Germany, in the same area where one of this year’s wolf pictures was taken.

All of this is good news from a biodiversity conservation perspective, for at least two reasons. First, most big predator species worldwide are threatened and in decline. Second, large carnivores are of crucial importance for the proper functioning of ecosystems. Both aspects were emphasized in a recent review article on large carnivores in the journal Science. At the same time, the European wolf comeback comes with significant challenges that must be met in order to prolong the success story. In particular, conflict between humans and wolves has been a consistent theme throughout history. Wolves were exterminated for a reason! Such conflicts spring, among other things, from livestock depredation, human safety concerns and competition for the same prey with hunters. The animals tend to stir up controversy particularly when they reappear in regions and countries from which they disappeared long ago, and where people are no longer used, or willing, to live alongside them. Finding examples of such conflicts is easy, as the media tend to be eager to cover them – sometimes a little too eager, it seems. The Netherlands is a case in point as well, as the mere possibility of wolves returning to the country has been giving rise to significant debate in recent years, both in the media and in Parliament.

So why raise all of this in a law blog? To begin with, law played its part in the wolves’ demise. A representative example is the 19th century Dutch hunting act, ‘Jagt- en visscherijwet 1814’, which set a bounty to be collected for every dead wolf: 30 guilders (approximately 500 present day euros) for a female, 25 (~400 euro) for a male, and 15 (~250 euro) for each young wolf. Conversely, legal protection is often mentioned as one of the factors enabling the comeback of wolves since the 1970s, along with land use changes and increases in forest cover and wild prey populations. At the same time, law is of the essence for ensuring that the wolf’s recolonization of its former habitat takes place as smoothly as possible, particularly by minimizing and resolving human-wolf conflicts. Finally, in view of the fact that almost all current European wolf populations extend across more than one country, a particularly prominent role is reserved for international cooperation. Two significant legal instruments in this regard are the 1979 Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention) and the 1992 EU Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora (Habitats Directive). Both instruments contain important obligations regarding the protection of wolves and their habitat. Moreover, specific guidance for the application of these obligations to wolves and other large carnivores has been developed within the framework of both instruments by a dedicated group of experts called the Large Carnivore Initiative for Europe (LCIE).

Returning to the Netherlands, the Dutch government recently announced it will list the wolf as a strictly protected species under Dutch law, motivating this decision with reference to the Netherlands’ obligations under the Habitats Directive. Other steps undertaken by the Dutch authorities to prepare themselves and society at large for the wolf’s expected comeback include a fact-finding study, opinion poll, assessment of experiences in other countries and workshops involving all stakeholders ranging from conservationists to sheep farmers. The authorities also commissioned a legal study to assess the viability of various policy options regarding the management of wolves should they return to the Dutch landscape, and answer other legal questions raised by this anticipated return. Some examples are the following:

• What is the (inter)national legal status of wolves returning to the Netherlands?
• What can be done about wolves preying on livestock?
• Is a zoning policy of ‘go and no-go areas’ for wolves a legally viable option?
• At what stage of re-colonization are protected areas to be designated for wolves?
• What is the position of wolf-dog hybrids and of measures to counter hybridization?
• What role is reserved for transboundary cooperation?

The whole process culminated in the development of a blueprint for a national Wolf Plan [PDF], which was commissioned by the Ministry of Economic Affairs (the national authority currently dealing with wildlife conservation). The blueprint, which was finalized in October 2013, is the result of a participatory process involving national and provincial governmental bodies, protected area managers, NGOs, livestock farmers’ organizations, hunting associations and academics from various disciplines. The document sets out guidelines regarding information and communication, monitoring and research and the prevention and compensation of damages to livestock. It also includes a discussion of the applicable legislative framework for wolves, including the species’ generic protection through various prohibitions, the designation of protected areas and transboundary cooperation with neighboring states. The recent express designation of the wolf as a strictly protected species under Dutch law was one of the actions recommended in the blueprint, but it remains to be seen to what degree its other components will be transformed into actual government policy. At any rate, a feature that stands out is the proactive manner in which the entire process has been conducted, in the absence thus far of the protagonist species itself. The Dutch experience to date appears to affirm the intuitive notion that it is easiest to reach a level of agreement amongst stakeholders with conflicting views on wolves before the animals themselves arrive on the scene.

As just concisely illustrated, large carnivores like wolves not only constitute one of the hottest topics in the area of European wildlife conservation and management today, but also a rich topic for legal analysis. This post has done little more than introducing the topic and scratching the surface, and Canis lupus and other big predators like bears and lynx may well be revisited in future pieces.

– Arie Trouwborst

Selected further reading:

• LCIE website
• IUCN European Newsletter on large carnivores
• European Commission’s webpages on large carnivores
• Law journal article on large carnivores and European law

Tilburg Law School’s Kees Bastmeijer and Arie Trouwborst are the principal authors of the legal study mentioned above, and also assisted in the drafting of the Wolf Plan blueprint. They authored various scientific journal articles on legal issues concerning large carnivore conservation and management. Arie Trouwborst is a member of the Large Carnivore Initiative for Europe.

06/09/2013

Shale gas debate finally kicks off in the Netherlands

Fifteen years after the first economical shale fracture in the United States, the debate on shale gas extraction has finally reached full speed after the publication, in August 2013, of a research report by three consultancy firms lead by Witteveen + Bos, on the potential risks and consequences of shale gas and coal seam gas extraction in the Netherlands. In the report for the Dutch government, the researchers reviewed the existing literature on the impact of shale gas extraction and “translated” the findings to the Dutch situation. Most of the information on the impact of shale gas extraction is from experiences in the US and the UK. The comprehensive report focuses on all possible consequences, such as water use, underground impact on the soil, methane emissions and the impact on the carbon footprint, pollution of the environment (including groundwater) by fracturing fluid and flowback water, noise and light pollution from installations, flaring, safety issues, earthquakes and subsidence. Generally, the report concludes that most if not all of these risks can be managed by setting strict permit conditions. Unlike in the US, the Dutch shale gas reserves are at great depth, well below ground water aquifers, and, also unlike in the US, in the Netherlands there already exists an extensive regulatory system that sets strict rules. Flowback water, for instance, cannot be stored in open basins, but has to be stored in closed tanks that are stored on watertight floors as a consequence of EU waste water law. Although the report looks sufficiently overarching and detailed, it also gained criticism. It was for instance criticized for its selected use of sources. Professor Jan Rotmans, in the Dutch newspaper Trouw (29 August 2013) stated that the report heavily relied on data coming from the industry (75% of the data used is from industry related sources), rather than on data from more independent sources. In addition, the lack of data is usually interpreted in a ‘positive’ way, i.e., concluding that a certain impact is not problematic, while in fact we do not know because of lacking data. Applying the precautionary principle would have led to the opposite conclusion in such a situation! Unfortunately, the Minister decided to grant the research project to a consortium of three private companies, one of which is Fugro, which states on its website: ‘Fugro’s activities (…) are primarily aimed at the: oil and gas industry, construction industry, mining sector’. On such a sensitive issue, it would have been better for the Minister to grant the project to a consortium of universities rather than of private businesses with ties to the shale gas industry, or at least have a university team lead the consortium. Another problematic feature of the report is that it does not focus on specific local conditions. This is a bit strange because a) the government selected the three locations on which exploratory drillings are to take place long ago (2010), and b) the report argues that local zoning requirements are needed to protect specific sites, such as Natura 2000 sites (protected areas under the EU’s nature conservation laws) and groundwater protection areas (in use for drinking water supply), and probably also (although not specifically mentioned in the report) other types of protected areas, such as water storage areas, silence areas, and national parks. The report also suggests to protect buffer zones around such protected areas, without detailing how big these have to be. Given the fact that populated areas probably have to be avoided as well, it would have been interesting to test what drilling options remain. By leaving a lot of issues to the local level, authorities resisting shale gas extraction have an immense opportunity to block drilling, even in case the national authorities granted concessions. We already see developments going into this direction: a majority of politicians of the province of Noord-Brabant in which two of the designated exploration locations are located, have announced to prohibit shale gas exploration in their province in the Provincial Environment Ordinance. It is clear from the report that shale gas extraction is only acceptable under strict legal conditions. The report does, therefore, constantly refer to laws and regulations that are or should be in place to minimize the negative impact of fracking. A full assessment of current laws is lacking, though. Current Dutch mining legislation does not explicitly deal with fracking, simply because it predates the large scale use of this technology. An earlier EU investigation of existing environmental laws, by a consortium that, interestingly enough, also included Witteveen + Bos, found many gaps and shortcomings. It is unlikely that all of these do not exist in the Netherlands. The report, furthermore, relies on law in the books rather than on the law in action. Although there are supervising authorities, both on the implementation of mining legislation and environmental legislation, much depends on the way the various authorities involved deal with their decision-making and monitoring and enforcement powers. The debate will not be over for a while. This is a good thing. Before investing billions of euros into new infrastructure to extract fossil energy resources, it is worthwhile to rethink whether such investments perhaps are more appropriate in the dwindling Dutch renewable energy sector. According to the 2013 Renewable Energy Progress Report, the Netherlands is on a snail ride, moving from a 2,4% share in 2005, to a 3,8 share of renewable energy sources in the total energy consumption in 2010. Compare this to some of nearby countries, such as Germany (11%), France (13.5%), and Denmark (22.2%)… In 2012, the share went up to 4,7%. In this pace, it is highly unlikely that the Netherlands will meet its target for 2020 of 16%… Investing in shale gas extraction will not speed up this process.

02/06/2011

Coastal adaptation

Around the world, coastal defenses are an integral part of climate policy. The risk of flooding is increasing due to a number of factors – the rising sea level (which in the Netherlands is being exacerbated by subsidence), the increasing intensity of storms and rising water levels in rivers. The Dutch parliament is currently looking at proposals for a new Delta Law, which is designed to address these increasing dangers. This law, as well as the legislation that already exists, is among the most advanced in the world. But of course, that is because half of our country is susceptible to flooding, either from the sea or from rivers.

Unlike in the Netherlands, most of the coastal areas around the cities of southern and eastern Australia are in the hands of private landowners. These ‘ocean view properties’ are spectacular, and extremely expensive. That makes it difficult for the government to build coastal defenses. Many interesting legal cases are already underway in this area which will clarify how this aspect of climate law will be put into force in the future. Essentially, the law states that the authorities must create a coastal protection area where they can make provisions for the effects of climate change. This policy will determine whether projects in coastal areas are allowed to go ahead. But what should be done in cases where houses are under threat from the sea?

One of the most famous cases is that of a rich landowner in Byron Bay to the south of Brisbane. The government had decided not to defend a section of the coastal area against the increased risk of erosion, but rather to let nature take its course as a part of a wider plan that involved protecting other, more important areas. The owner of the land decided to take measures to protect the land from erosion himself by renewing the old coastal defenses. The government denied him permission to do this, for the same reason as it had decided not to do so itself. When it looked as if the dispute would be settled in favor of the landowner, the government decided to renew the coastal defenses after all. However, it is clear that this is only a temporary measure until the next storm comes along. There is no prospect of a definitive solution, not least because land owners are opposing the construction of new coastal defenses for the future. After all, this would mean their land would no longer be located directly on the coast, and so it would be worth considerably less…