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Urgenda's big climate win - What does it mean for Australia?

16 October, 2018

In an historic community win against climate change, the Hague Court of Appeal has upheld a landmark ruling ordering the Dutch Government to cut the country's greenhouse gas emissions by at least 25 percent by 2020, from benchmark 1990 levels.

What does it mean for climate litigation in Australia?

In 2013 Dutch citizen action group Urgenda commenced a civil action against the Dutch Government arguing it had breached its legal duty of care to citizens by not taking appropriate steps to significantly mitigate greenhouse gas emissions and prevent damage from the effects of climate change.

The decision of the District Court of the Hague was handed down in June 2015, agreeing with Urgenda. The Court found that the Dutch Government’s plan to reduce emissions by 17% by 2020 was not enough to be able to combat the foreseeable effects of climate change related damage on the low lying country. This, the Court found was a failure of the Government’s duty to safeguard the protection and the improvement of the living environment. The Hague ruled the government must cut its greenhouse gas emissions by at least 25% by the end of 2020 (compared to 1990 levels).

EDO Qld was fortunate to host Urgenda’s climate litigation leader Marjan Minnesma in July 2016 in a forum to help explaining how community groups could help use the law to tackle climate change. Read our 2016 background here.

Appeal decision

The Dutch Government appealed the District Court decision on 29 legal grounds, including grounds such as:

  • Urgenda’s desire to protect the interests of ‘future generations ad infinitum’ in the Netherlands and across the world was too broad and lacked specificity;
  • That the Court misinterpreted and/or wrongly considered the significance of international climate science reports;
  • That reducing Dutch emissions will not result in reduced EU emissions; and
  • That additional burdens on reducing emissions would create an even playing field for Dutch companies.

However, the Court found that:

“These arguments are not such that they warrant the absence of more ambitious, real actions. The Court, too, acknowledges that this is a global problem and that the State cannot solve this problem on its own. However, this does not release the State from its obligation to take measures in its territory, within its capabilities, which in concert with the efforts of other states provide protection from the hazards of dangerous climate change.”1

The Court similarly found the State’s argument that making significant changes by 2020 was not enough lead time unconvincing, saying

“Insofar as the State wanted to assert that the remaining available time (until end-2020) is very short, this argument is rejected. Not only is the judgment (declared provisionally enforceable) over three years old, but the foregoing has shown that the State has known about the severity of the climate problem for a long time and that up to 2011 the State had focused its policy on a reduction of 30%”2

EDO Qld CEO Jo Bragg said it welcomed the appeal decision as it forced government to do its job and protect citizens and future generations from the impacts of climate change.

“The decision clearly shows that citizens can have a major role in requiring governments to introduce measures to reduce greenhouse gas emissions to mitigate dangerous effects of climate change in their countries,” she said.

“Cases like this show how powerful the law can be when it comes to building a positive, sustainable future,” she said.

“While the legal regime is different in Australia compared to the Netherlands, over the last decade, EDO Qld has run major cases under our unique laws helping the community object to fossil fuel expansion to keep our climate safe,” she said.

The Urgenda appeal decision was handed down the day after a sobering report from the UN's Intergovernmental Panel on Climate Change found we have just 12 years to make significant changes to ensure we keep global warming below 1.5°C.

The report found that if temperatures rise above 2°C that sea levels might rise by 2.5 to 3 meters by the end of the century.

A 2015 CSIRO study found that 85% of Australia and its industry live within 50kms of the coast. A 2018 Australian Senate committee report found that Australia’s risk exposure to climate affected residential, commercial and industrial buildings was $5.7 trillion.3

What is the legal position in Australia?

A number of differences in the Australian legal context would make it difficult to exactly replicate the Urgenda case here, including:

  • the Netherlands has a civil law system where the majority of its laws are written, whereas Australia has a common law system with a more prevalent role for judicial decisions;
  • Unlike in the Netherlands, the Australian Constitution does not create a duty on our government to safeguard, protect and improve the living environment;
  • The Netherlands has a codified tortious duty which was ‘filled in’ by international treaties and European Union Guidelines;
  • The Netherlands has an established jurisprudence on a tort of hazardous negligence4 and more developed principles of partial causation;5
  • Prominent cases in Australia have declined to uphold negligence torts against governments;6
  • Australia has not incorporated human rights into its domestic legal system.

However there may be scope for other legal actions against government that fit within our particular legal context.7

The court's acceptance of the latest climate science is also encouraging.

What does strategic climate litigation look like in Australia?

Apart from the different legal systems Australia also has a very different emissions profile to the Netherlands.

Not only does Australia have almost twice the domestic emissions of the Netherlands (530 million tonnes of million tonnes per annum [mtpa] of carbon dioxide-equivalent [CO2e]8 compared with 196 mtpa in Netherlands), Australia’s fossil fuel exports embody more than around 1 billion tonnes of emissions including approximately 800 mtpa CO2e from the 382 mtpa of exported coal once burnt.  More than 400 mtpa CO2e is released into the atmosphere each year from our thermal coal exports alone.

In comparison coal mining ceased in the Netherlands more than 40 years ago.

The additional 8% reduction in domestic emissions targets achieved by the Urgenda case translates into about 16 mtpa CO2e in the Netherlands and a similar reduction would translate to about 40 mtpa CO2e in Australia’s domestic emissions.  In contrast any one of six proposed coal mines in the Galilee basin would contribute more than 60 mtpa CO2e to the atmosphere once burnt.  If the Galilee Basin was opened up, the five most advanced projects would contribute, once burnt, more than 400 mtpa CO2e to the atmosphere.

With these numbers in mind it is not surprising the climate litigation in Australia has focused on the assessment of emissions from new export coal mines rather than domestic emissions targets.

For example, EDO Qld has successfully represented clients in litigation, which has established that exported emissions are a legally relevant (possibly mandatory) consideration in assessing new coal mines in Queensland.9  Historically Courts have tended to accepted ‘the drug dealer defence’ that if Australia doesn’t supply the coal it will come from somewhere else, but that depends on the facts of each case in a rapidly changing market.

EDO Qld will also continue to actively advocate for tangible and meaningful climate change measures, including undertaking law reform activities to work towards introducing a Climate Change Act for Queensland.

References

1 ECLI:NL:GHDHA:2018:2591 at [62].

2 Ibid at [66].

3 Environment and Communications References Committee, June 2018, Current and future impacts of climate change on housing, buildings and infrastructure—Report, p17.

4 For example, the “Kelderluik” ruling of the Supreme Court (HR 5 November 1965, ECLI:NL:HR:1965:AB7079, NJ 1966, 136)

5 See for example the Potash Mine decision, Kalimijnen, Dutch Supreme Court, 23 September 1988, NJ 1989, 743

6 For example, Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54, (2002) 211 CLR 540

7 See, for example, Tim Baxter, “Urgenda-Style Climate Litigation Has Promise in Australia” (2017) 32 Australian Environment Review 70.

8 Australian Government, Quarterly Update of Australia’s National Greenhouse Gas Inventory: March 2018

9 Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242

Environmental Defenders Office Queensland (EDO Qld) gives a strong legal voice to the environment when needed most.