Imminent Peril: the Evidentiary Basis of Our Appeal Case and the Urgenda Decision

The decision by the Hague Court of Appeal, upheld by the Supreme Court of the Netherlands in its judgment released on January 13, 2020, addresses two points that are of special interest to our case.

Firstly, it sets out the analytical approach taken by the Dutch court to determine whether “a real and imminent threat” exists in the context of the available evidence about climate change and global emissions. A real and imminent threat is the relevant test under the applicable provisions of the European Convention on Human Rights to determine whether the Netherlands government was legally obliged to implement more stringent carbon reduction policies to avoid dangerous levels of atmospheric warming. The expression “a real and imminent threat” is the English term adopted in the available English language translation of the judgment.

Secondly, the Dutch court sets out in detail the evidentiary basis of its ruling on that issue. The judgment, as I explain in this essay, is founded on a series of scientific findings cited in the judgment about the atmospheric carbon concentration level, its past and current rate of increase, the significance of the 450 parts per million (ppm) level, and the irreversibility of accumulating levels of carbon dioxide in the atmosphere. It identifies other crucial elements of the evidence that determine the unforgiving timelines we face to avoid, or limit, catastrophic heating of the earth. The framework of evidentiary material presented in the Dutch case is almost identical to that which we have relied on in our case.

In important respects the Dutch case is different from ours. It is not a case of criminal liability or “excuse” (and therefore has no direct analogy with the common law defence of necessity in our case). It concerns a claim that the Dutch government has breached a duty of care it owes to its own citizens to achieve certain levels of emissions reductions by 2020, which the claimants say are essential in order to avoid the threat of grave, irrevocable climate change. The Dutch case turns specifically on Articles 2 and 8 of the European Convention on Human Rights (ECHR).

But in both the Dutch case and in our appeal, a common issue arises: given the evidence about the current state of global emissions and the available time left to avoid the increase in the earth’s average surface temperature exceeding the 1.5°C and 2°C limits recognized as dangerous, should the court make a finding that “a real and imminent threat” now exists? In the Dutch case, the court agreed that an imminent threat does exist. It ruled that the government of the Netherlands has a positive duty to implement additional emissions reductions forthwith to meet specified targets by 2020.

The focus of the inquiry in both cases is on how much more time remains to avoid an irrevocable commitment to warming that will exceed both 1.5°C and 2°C  (assuming that keeping within either of those limits is still possible) and how deep the reductions in global emissions would have to be to stay within those limits.

The discussion in this paper is focused on the 20-page decision by the Hague Court of Appeal. It is however also rewarding to read both the earlier trial decision, released in 2015, because of the explanatory clarity and detail of its analysis of the scientific evidence (the trial decision is 58-pages), and also the final decision by the Supreme Court of the Netherlands on January 13, 2020. Links to all three decisions are as follows: