Should Courts Decide Climate Policies? A Critical Perspective on the Urgenda Verdict

Climate litigation has become a trend in recent years. In one form such litigation organized citizens seek to require governments to set more ambitious CO2-abatement goals. In the Dutch Urgenda case, which is held to be a landmark case, the plaintiffs prevailed, forcing the Dutch government to change its climate policies. Using Urgenda as illustration, this article provides reasons for being skeptical of such climate litigation. One central reason for skepticism is the courts’ lack of democratic legitimacy, but this article focuses on another reason, namely that court litigation cannot be trusted as a mechanism for making good climate decisions. This functional reason for skepticism is well illustrated in the Urgenda case, where the courts framed the policy question in a manner that made it conducive to court adjudication, but where this framing was untenable. The Supreme Court referred to a scientific and political consensus about the need for more ambitious abatement and inferred that the Dutch State’s greater obligations then followed from human rights principles and the precautionary principle. However, this framing was invalid, as there is no clear scientific or political consensus about the required degree of abatement and as neither human rights nor precautionary principles provide a coherent framework for weighing costs and benefits of alternative climate policies. In the absence of this framing, the Court would have had to consider the theories that seek to weigh costs and benefits of more abatement, and such consideration of alternative theories cannot reliably be conducted through the mechanisms of legal adjudication. For one thing, courts are in civil trials restricted to considering the evidence that litigants bring forth. Notably, in Urgenda, the Dutch government could not be expected to dispute facts or theories to which it was politically committed. Moreover, the theories weighing costs and benefits are inherently complex, and judges cannot be expected to be able to choose between them. For instance, choosing between different theoretical prescriptions requires an understanding of the very intricate question of the proper rate of discounting over time.