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Earlier this week, a court in The Hague ordered the Dutch government to reduce its greenhouse gas emissions by at least 25 percent by 2020. In a stunning verdict, the court found that the State’s existing policy, which looked to cut emissions by 14 to 17 percent, was unlawful. In view of the Netherlands’ position as a developed country, the State was obligated to ‘do more to avert the imminent danger caused by climate change’.

The claim was brought by the Urgenda Foundation, a non-profit which agitates on issues surrounding climate change and sustainability. The decision has been hailed as a ‘landmark‘, which ‘could trigger similar cases all around the world‘.

But does this decision have any significance for Australia?

Urgenda drew on several different sources of law in making its argument that the State was legally obligated to do more on climate change.

First, article 21 of the Dutch Constitution obliges the State ‘to keep the country habitable and to protect and improve the environment’.

Second, according to the ‘no harm’ principle of international law, States have a responsibility to ensure that activities within their jurisdiction do not cause damage to the environment of other States.

Third, the European Convention of Human Rights imposes a range of human rights obligations on member States. For example, the right to life is protected under article 2 of the Convention. The European Court of Human Rights has held that, in certain circumstances, article 2 imposes a positive obligation on States to take steps to protect the lives of those within their jurisdiction.

However, the court held that none of these sources of law vindicated Urgenda’s argument. The State had a discretion as to how it discharged its obligation under the Dutch Constitution. The ‘no harm’ principle only created obligations between States, and therefore could not be relied on by Urgenda at the domestic level. Finally, as Urgenda was not a natural person, it could not bring an action for the violation of its physical integrity or privacy (within the meaning of the European Convention).

Instead, the court’s decision was grounded in the law of torts. The general basis for a claim in tort is contained in Book 6 Article 162 of the Dutch Civil Code: ‘A person who commits a tortious act against another which is attributable to him, must repair the damage suffered by the other in consequence thereof.’ A ‘tortious act’ is defined as ‘the violation of a right and an act or omission breaching a duty imposed by law or a rule of unwritten law pertaining to proper social conduct.’

The State owed Urgenda, as a member of Dutch society, a duty under the unwritten law to exercise due care in formulating its climate policy.

First, based on current levels of global emissions, the court held that it was ‘very probable that within several decades dangerous climate change will occur with irreversible consequences for man and the environment’. This risk had been foreseeable since the early 1990s.

Second, the State had the power to control the national level of emissions, and had expressly assumed responsibility for doing so by becoming a signatory to the UN Climate Change Convention and the Kyoto Protocol. On this basis, the fact that the State did not itself emit greenhouse gases was held to be irrelevant.

Third, the costs of adopting a more radical mitigation strategy were not unacceptably onerous. Until 2010, the Dutch government had been committed to a higher emissions reduction target. The scientific evidence before the court also indicated that it was ‘more cost-effective to take adequate action than to postpone measures in order to prevent hazardous climate change’.

Echoing similar arguments that have been made in Australia, the State claimed that a more stringent domestic approach would result in only a negligible reduction in global emissions. The court also rejected this submission. The State still owed a duty of care to third parties, and Dutch national emissions (although proportionately small) still contributed to climate change. Interestingly, the court specifically noted that the Netherlands, as a developed country and one of the world’s highest per capita emitters, had an obligation to take the lead in mitigating climate change.

Having established that the State had a duty of care to take mitigation measures, the court found that a reduction target of 25 percent on 1990 levels by 2020 was required to discharge this duty. A 25 percent reduction was the ‘absolute minimum’ required of industrialised countries to avoid hazardous climate change. By establishing a target of less than 25 percent, the State had ‘acted negligently and therefore unlawfully towards Urgenda’. The court held that this judgement did not stray from the judicial into the political domain. Urgenda’s claim had political consequences, but it essentially concerned legal protection of its rights and interests.

This decision is the high-water mark of government accountability for climate change. Grounded as it is in tort law, however, it has little legal application in Australia. There are significant differences between tort law in civil and common law countries. As Gummow, Hayne and Heydon JJ noted in Kirkland-Veenstra, ‘[t]he common law has been described as “individualistic”, the civil law as “more socially impregnated”‘.

This distinction is particularly stark in cases like the present, where a public authority is said to be liable for some failure to act. The fact that a public authority has knowledge of a risk of harm and power to avert it does not alone give rise to a duty of care at common law. Moreover, the High Court has been very reluctant to hold public authorities liable for political decisions, made on the basis of competing economic and social interests. In the leading case, Graham Barclay Oysters, the High Court refused to hold the New South Wales government liable to consumers who ate oysters contaminated with hepatitis A. The government had decided to let the oyster industry regulate itself. The contamination might have been avoided if the government had instead exercised greater control. But Chief Justice Gleeson held that this claim took ‘the debate into the area of political judgment’. The government’s failure to act was not susceptible to curial review against a standard of reasonableness. Similar concerns would arise in any action against the Australian government for a failure to take action on climate change.

An Australian plaintiff is also likely to run into difficulties in demonstrating causation. Assuming that climate change is already causing damage to some Australians, it will be difficult to demonstrate that, but for the government’s failure to take more decisive measures, that damage would not have been suffered. This causal uncertainty strikes at two levels. First, while climate change increases the frequency of extreme weather events, it is difficult to determine conclusively whether any particular event is caused by climate change. Second, Australia’s omissions constitute only a small proportion of omissions worldwide. Would a court be able to determine on the balance of probabilities whether a particular event would have occurred but for Australia’s omissions?

The Dutch court answered the question of causation by reference to notions of fairness and differentiated responsibilities. It effectively found that the Netherlands could not shirk its responsibility as a global citizen and a developed nation, given that its omissions increased the risk of hazardous climate change. While this reasoning rings true from a moral and political perspective, it falls short of establishing causation for legal purposes.

The Dutch court’s judgment should inspire all Australians concerned about the political intransigence surrounding climate policy in this country. For these reasons, however, any equivalent legal challenge in Australia is unlikely to succeed.

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