Tort-Law based Environmental Litigation: a Victory or a Warning?

“The Appeal Court confirms the judgment of the The Hague Tribunal of 24 June 2015.” With these words on 9 October 2018 – the day before sustainability day – the The Hague Appeal Court closed the second, and probably not last, chapter in the renown Urgenda case (ecli:nl:ghdha:2018:2591). The Dutch State must reduce its greenhouse gas emissions to a greater extent than envisaged under its current plans. It does not bear further explanation that this judgment was welcomed as a success by the Urgenda association, other environmental associations, environmentalists and concerned citizens alike. The first commentaries of Dutch scholars have already appeared on national newspapers and internet sites, with commentaries in legal journals following soon. Lucas Bergkamp, Marcel Crok, Jaap Hanekamp & Roel Pieterma, and Ludwig Krämer have been entrusted with the task to open an in depth discussion on this judgment in the next volume of this journal. Acordingly, I would like to make immediately clear that I do not want to judge the Urgenda ruling from a substantive perspective. As for most land mark cases, it can surely be both praised and criticized. In this opinion, I want to underline a personal concern that I have with the use of tort law to protect the environment which emerges when we place the Urgenda case in a broader perspective. The words of Marleen van Rijswick during her keynote at the 6th eelf Conference in Como, Italy (available at eelf.info), keep echoing in my mind. She rightly warned the audience that the Urgenda case is actually a symptom of problem, not a solution. It highlights the failure of the Dutch State to take climate change seriously. After hearing these words, my mind immediately made