Saturday 6 August 2016

NGO Milieudefensie starts tort proceedings against Dutch State for bad policy on air quality

New tort case against Dutch State   
1 August 2016, the Dutch environmental NGO Milieudefensie initiated tort proceedings against the Dutch State because the Dutch State’s air quality policy would be insufficient. The Dutch State does not reach EU’s norms on air quality, let alone the even more stringent international norms formulated by the World Health Organization. Hard science reveals the causal link between air pollution and earlier deaths of people. The rights to health and to life are fundamental human rights. And, according to Milieudefensie, it is easy to improve air quality by taking some simple measures – for instance, by lowering the maximum speed limit on highways. In short, the Dutch State unnecessarily endangers the lives of its citizens and therefore violates its duty of care not to create a dangerous situation (“gevaarzetting”). The Dutch private law Court should therefore order the State to change its air quality policy, says Milieudefensie.

Echo of Urgenda case?          
This case reminds us of the Urgenda case decided somewhat more than a year ago. In the Urgenda case, the Court of First Instance in The Hague ordered the Dutch State to increase its CO2 reduction standards to mitigate climate change. It did so on the same tort-basis as invoked by Milieudefensie: the State did not reach its duty of care not to create a dangerous situation, leading to foreseeable damage, while such can relatively easily be prevented. The Court thereby gave effect to international and European climate agreements, reasoning that these shape the tort-based duty of care – even though these agreements are otherwise not directly applicable in the Dutch courtrooms.

Trias Politica concerns           
The Urgenda case led to a lot of controversy. Many commentators found the decision unacceptable in light of the trias politica ideal. This ideal (also known as the separation of powers doctrine) dictates that whereas the legislature may create the law, the judiciary should only apply the law. By ordering the State to change its climate change policy, the Court in Urgenda would have exceeded its discretion and entered the the other branches of government's realm of powers. Based on this argument, the Dutch State has filed an appeal in the Urgenda case.

The Milieudefensie case immediately met the same critique in popular media.[1] Apart from the question whether the critique is just with respect to the Urgenda case, it is certainly doubtful that it is with respect to this new case. That is, the European directive 2008/50/EC, invoked by Milieudefensie, is part and parcel of positive law in the Netherlands. By holding the Dutch State to its obligations flowing from this directive, the Court would do no more than applying existing law – even though this law has been made by the EU legislature rather than the Dutch legislature.

A substantive private law duty of care         
Still it remains to be seen whether the Court will follow Milieudefensie’s suggestion, to use this directive to give substance to the duty of care of the Dutch State, a duty that follows from Dutch tort law. And even more passionate is the question whether it will use the legally non-binding WHO guidelines as well, and to what extent it will rely on the fundamental rights invoked by Milieudefensie. To do so would fit the ongoing trend of the constitutionalization of private law in Europe. On the other hand, it is very well possible that the Dutch Court of Appeal will quash the Urgenda decision invoked as a precedent by Milieudefensie, which would lower Milieudefensie’s chances to success.

But even if the Urgenda decision remains intact – thus the possibility to color duties of care with non-binding or non-directly applicable international and European law – even then it is not sure that the Court in the Milieudefensie case will order the State to change its policy like it did in the Urgenda case. That is, in Dutch tort law there has to be a serious amount of damage to establish a tort. In Urgenda, there was consensus between the parties about the hazardous and serious consequences of climate change. Milieudefensie claims that people on average can live 9-13 months longer if air quality in the Netherlands is properly improved. Because this statement is based on scientific information issued by a governmental agency of the Netherlands, it is unlikely that the Dutch State will contradict it in courtroom. However, whether these statistics will also be considered tortuous ‘damage’ is not necessarily evident, given that policy – especially policy related to traffic situations – involves the acceptance of statistical chances to more or earlier deaths of people.

PhD research Laura Burgers
The subject of my PhD research is the democratic legitimacy of judicial law-making in European private law, with environmental liability as a case-study. In this project, I use political philosophy on deliberative democracy as a normative framework to assess the democratic legitimacy of judicial decisions on environmental liability in European private law.  In another blogpost, I will reveal more about this normative framework.

[1] Albert van der Wijk ‘Verontrustende trend’ Volkskrant 3 August 2016; ‘Milieudefensie gelooft niet in democratie’ De Telegraaf 3 August 2016

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