The National and EU Targets for Reduction of Greenhouse Gas Emissions Infringe the ECHR: The Judicial Review of General Policy Objectives Hoge Raad (Netherlands Supreme Court) 20 December 2019, Urgenda v The State of the Netherlands

After summarizing the judgment, we first locate the Urgenda judgment within the landscape of some of the most important recent climate case law in various countries, so as to show how uniquely far the Dutch court went by providing the remedy of a court order setting a minimum emission reduction target that as such may be considered politically desirable, but was not a binding obligation under public international law, and which replaced the one set by government and parliament; that target was moreover to be achieved within a specified time limit. Secondly, we discuss how this apparent success comes with a price in terms of constitutional democracy. In this context, we describe the political background to the lowering of emission targets, and subsequently the Court’s arguments about politics having to remain within the bounds of the law, about climate science, and the argument of exceptionality.
The third set of comments addresses the EU law aspect, since this judgment can be read as effectively striking down the EU's climate targets underlying and incorporated into the so-called second EU Climate Package for infringing the ECJR. Under this heading, we first highlight the constitutional status of the ECHR in the Netherlands, under which it can in principle outweigh other treaty obligations, including EU law. Although the Hoge Raad is an unlikely candidate to – in effect – strike down EU law, this is what its Urgenda judgment amounts to. Finally, we make some concluding remarks based on these observations as to what the Hoge Raad, in our view, should have restricted itself to doing.