Canadians who are concerned about courts sticking their noses into public policy might raise an eyebrow after a recent ruling in the Netherlands, where the government was legally required to increase its efforts to curb climate change.

In an unprecedented ruling, a sustainability organization – the Urgenda Foundation – and 900 citizens of the Netherlands took the Dutch government to court for climate inaction – and won.

The case

The Urgenda decision is the first time a court has legally required the state to make better efforts to combat climate change. The Netherlands was on track to achieve a 17 per cent reduction by 2020 from 1990 levels, but the plaintiffs argued the goals were insufficient. The Hague District Court agreed the Dutch government has a legal obligation to protect its people against climate change, which threatens the low-lying country with sea level rise-related flooding. The court ordered the Dutch government to cut its emissions by 25 per cent by 2025.

The plaintiff wanted the Dutch government to achieve 25-40 per cent reduction below 1990 levels by 2020 as recommended by the Intergovernmental Panel on Climate Change (IPCC) to prevent a temperature increase of more than 2 C.

The plaintiff claimed the Dutch government is acting illegally by not doing its share to prevent climate change, having signed the United Nations Framework Convention on Climate Change and the Cancun agreement in 2010.

The court ruling

The court ruled, “that in view of the latest scientific and technical knowledge, it is the most efficient to mitigate and it is more cost-effective to take adequate action than to postpone measures in order to prevent hazardous climate change. The court is therefore of the opinion that the state has a duty of care to mitigate as quickly and as much as possible.”

The court also concluded that “It is not evident that state doesn’t have the financial means to achieve the higher reduction measures,” and that “a stricter climate policy will affect business competitiveness.” It also found that “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.”

Though the case was a domestic one, the ruling can be expected to cause ripples around the world. Organizations in Belgium and Norway are arming themselves to launch similar cases with the same basic argument on state responsibility for climate action.

What it all means for Canada

Canada is not expected to meet its emission targets of 17 per cent below 2005 levels by 2020, which were set during the Copenhagen Accord of 2009. The federal government recently announced its 30 per cent reduction by 2030 target with few details on how it will be achieved.

Urgenda used a lot of international reports to strengthen its case, such as IPCC and the Oslo principles, which lay down the legal obligations of states around the world to achieve reductions in GHG emissions. As similar cases are brought forward in different countries, the probability of a Canadian organization mounting a similar challenge increases.

It might only be a matter of time before we see the climate change debate in the Canadian court room.

Turning up the heat on climate change

It is not clear, however, how a climate change court case would fare in Canada.

Using the legal system to force action on environmental protection is not a novel idea. It has been gaining momentum for several years. But success has been sparse. A lot of courts would not deem holding the government accountable for inadequate targets an acceptable legislative problem. It would be argued that this falls under the realm of the legislature and regulatory bodies to regulate emissions and meet targets. Moreover, environment is not specified in the Canadian Constitution and so, it is unlikely that the Dutch case can be replicated in Canadian courts.

Ecojustice, a national environmental law charity, and Friends of the Earth filed a lawsuit in 2009 against the Harper government, arguing that it is breaking the law by not complying with the Kyoto Protocol. The Supreme Court of Canada refused to hear the application, stating that the Kyoto Act was a “non-justiciable political question.”

While there can be numerous legal hooks as well as pitfalls for climate change claims, experts have been stating that “at some point, the chances of success are moved from the realm of law to the realm of judicial courage.”

Judicial activism in Canada has been a matter of concern for years, as critics question the courts’ exercise of power. The Harper government has time and again spoken against how Canadian judges have abandoned acceptable judicial restraint. If the courts wade in on climate policy, politically it would cause a major stir.

One of the impacts of this decision on Canada, however, will be increasing international pressure on the climate change file. Canada has been under attack globally to take greater action on climate change – especially with the China-U.S. climate agreement of this year.

With the Urgenda decision highlighting the responsibility of developed countries to take the lead on climate change and with two-thirds of Canadians believing that the federal government is not doing enough to combat climate change, this ruling is bound to spark similar causes of action. That, in turn, will increase pressure on the Canadian government to take serious action to meet its targets and revamp its climate policy.

By Shafak Sajid, policy analyst