With eyes on COP24 in Poland, a Dutch success story offers inspiration

A lawsuit in the Netherlands shows ‘people power’ has the ability to change climate policy for the better.

By: /
December 7, 2018
A snowstorm, called the 'Lake-effect snow', a rare natural phenomena, arrives at the island of Schiermonnikoog, the Netherlands, February 27, 2018. REUTERS/Cris Toala Olivares

In April 2015, a motley crew of nearly 900, including Dutch DJ Gregor Salto, entrepreneurs and a national weatherman, sued the Dutch government. 

Their claim? The state had endangered them by failing to curb greenhouse gas emissions. A couple of months later, in an unprecedented ruling, a district court ordered the federal government to cut the nation’s emissions by 25 percent below 1990 levels by 2020.  

The Dutch state appealed the verdict — and, just recently in October, lost. Three years after the initial blow, the second-highest court has pushed the government into a very tight corner, as its deadline to cut emissions has now shrunk from five years to two. 

The Netherlands is “still stuck at a 13 percent reduction of 1990 levels. The state is simply not meeting the ambitious targets it’s set for itself, nationally and in Paris,” says Dennis van Berkel, legal counsel for Urgenda, the environmental group that led the court case. 

As a last resort, the state has filed its appeal to the Dutch supreme court. But climate minister Eric Wiebes says the appeal is a matter of principle, to protest judicial interference — he has already reserved half a billion euros extra to comply with the court order.

Even though it remains to be seen whether the Netherlands will achieve its 25 percent reduction target, at this month’s United Nations climate conference, COP24, the Urgenda case is being regarded as one way to enforce climate action.

COP24 began early this week in Poland and runs until December 14. The focus is on addressing shortcomings in the Paris Agreement by agreeing to a more specific rulebook. Dire UN climate reports are pressuring states to lift the reduction targets even higher — but despite the Paris Agreement, political will is still scarce. 

And that scarcity is fuelling a remarkable trend to watch — the power of the law to affect change — as was underscored at Wednesday’s widely attended event on climate litigation, held on the periphery of COP24. The Urgenda case, discussed at the event, has sparked a wave of lawsuits worldwide filed by worried citizens determined to hold their governments to account.

Canada following suit

The Netherlands isn’t alone in failing to walk the environmental talk. This kind of political behaviour has strong echoes in other countries, including Canada. 

The Canadian federal government “has done the absolute low end of its ambitious climate targets,” says Meinhard Doelle, an environmental law professor at Dalhousie University. A recent UN report even reprimanded Canada for being nowhere near its greenhouse gas emission goal of 385 million tonnes of carbon emissions. In 2016, emissions were almost twice that. 

So last week, Canadians, too, took to the courts.

Catherine Gauthier, who says she was inspired by the Urgenda case, filed an application to sue the Canadian government (with her youth group, “ENvironnement JEUnesse”) on similar grounds. The lawsuit was filed on behalf of all young people in Quebec under the age of 36, claiming the government harmed their human rights to life and a clean environment. 

“Quebec is the best place to start, it’s the only province with a charter that includes the right to a clean environment and biodiversity,” says Gauthier.

Similar cases are pending in Switzerland, Pakistan, Belgium, New Zealand, Ireland, Norway, Germany and Colombia. In the US, a group of 21 young people has been trying to bring a case to trial since 2015, but they’ve faced a tsunami of attempts by the federal government to block the lawsuit.

A rare success

So what lessons might be learned from the Netherlands, where people power, via the courts, overtook incremental politics?

The Netherlands — like Canada — is one of the world’s top-10 emitters per capita, and has dangled at the bottom of all European sustainability rankings. The strained transition to renewables is telling: with just six percent of its energy derived from sustainable sources, it ranked 27th out of 28 EU countries two years ago.

In 2017, the Dutch government announced its intent to become “the greenest government ever.” The UK pledged the exact same thing in 2010 and has made impressive progress, reaching cuts of 43 percent of 1990 levels last year.

This summer, the Dutch government revealed a climate policy proposal that, if it becomes law, will “codify the most stringent targets for greenhouse gas reductions of any country in the world.” Seven political parties, representing a majority in parliament, tabled a bill that aims for a 49 percent reduction in emissions of 1990 levels by 2030 and 95 percent by 2050. But while the bill spells out the “what” — reduction targets — it doesn’t mention how to get there.

So a parallel process on the “how” emerged while the bill was in preparation. In February, the government — realizing it couldn’t limit air pollution alone — invited more than 100 parties, including companies and unions, for four months of talks to define an action plan to reach the emission reduction of 49 percent by 2030.

Wiebes designed five thematic “tables” — break-out sessions for sectors responsible for the biggest sources of pollution, including the “electricity sector” and “industries.” The government sent the invited parties out with no more than a piece of paper outlining their reduction assignment and a deadline: Christmas.

But an agreement on a reduction assignment plan won’t be reached by the end of the year.

The most radical cuts must come from the “industries” table, responsible for 40 percent of all Dutch emissions. Negotiations, however, stalled when a national carbon tax proposal was tabled during the talks. A bloc of steel and oil-driven companies, including Tata Steel and Shell, dismissed it as threat to a level playing field, insiders told Dutch news outlet De Groene Amsterdammer. 

It’s a deadlock that has left many experts sceptical about whether change is around the corner. “We haven’t seen any big changes in 30 years. A true green transition takes enormous political courage,” says Klaas van Egmond, professor of earth sciences at Utrecht University.

The stalemate might be broken as the companies’ position is receiving pushback; a recent study by the Netherlands’ Central Bank showed that a national carbon price of 50 euros a tonne wouldn’t affect the economy as a whole. The study said eight billion euros of projected profits could be invested in green tech, compensating companies for their losses, and be returned to people — for example by lowering income taxes. 

One reason that national carbon taxes are only now being discussed in the Netherlands is that the European version of cap and trade, started in 2005, was supposed to curb industrial emissions. But the 2008 financial crisis turned the cap and trade scheme into a political plaything, as states handed out free emission rights abundantly to help companies survive. 

As a result, the European emission price per tonne was stuck at five euros until last year, when a reform lifted it to 25 euros. “Still way too low,” says Van Egmond, “and the system’s too complicated and unpredictable, because speculation steers the price rather than supply and demand.”

“If Canada succeeds with its carbon tax, it’s got a serious shot at reversing its own tradition of climate-damaging policies. If it doesn’t, Canada, too, might be facing future court orders to speed up its efforts.”

Breaking a cycle

With a progressive carbon price scheme of CAD$50 a tonne by 2022 starting early next year, Canada’s federal government is ahead of the Dutch.

And while provinces are trying to extract Trudeau’s maximum political price with loud opposition and lawsuits, most experts think Ottawa will have its way. “They have jurisdiction in environmental issues,” says Maximilian Kniewasser, program director at Pembina Institute in Vancouver, working on the green transition. 

In the Netherlands, meanwhile, the Urgenda case has provoked a parallel debate on short-term impact to meet the 2020 deadline imposed by the court.

At the centre of the political fight are five coal plants that are responsible for 14 percent of all emissions. Tom van der Lee, a Green Party MP, is proposing to close the oldest two by 2019. “It’s doable, and the only way to meet the court order,” he says, though experts warn against a rash phase-out. 

“It’s madness to close them at once. We don’t have enough green alternatives, so we’d have to rely more heavily on gas,” says Van Egmond.

And the word “gas” strikes a nerve nowadays. The Dutch suffer from what’s ironically been called a “gas hangover;” they’ve exhausted 80 percent of the largest European gas fields right below their feet, making up five percent of Dutch GDP. And regular earthquakes caused by the drillings have left thousands of houses damaged and have prompted public outrage.

So the gas tap is being turned off, but nothing short of a revolution will be needed to transform existing infrastructure to have carbon neutral buildings; today, 90 percent of the Dutch still depend on it.

It’s this catch-22 situation and the state’s failed attempts to break the vicious fossil cycle that have fed broad scepticism and united Dutch citizens to sue their leaders in 2015.

If Canada succeeds with its carbon tax, it’s got a serious shot at reversing its own tradition of climate-damaging policies. If it doesn’t, Canada, too, might be facing future court orders to speed up its efforts. 

On October 30, the UN gave impetus to broader application of the Urgenda case by changing its interpretation of the human right to life to include a clean environment. 

Who’s got a duty to protect it? The state. Some 172 of them, including Canada and the US, committed to the human rights treaty in question.

While the conference in Poland will boast of political target-talks, don’t stop there to see what’s really affecting climate policies — a rising movement of people power popping up throughout the world.