The United States legal system has been struggling with how to address climate change. Faced with inadequate regulatory incentives1 and a lack of available tort claims,2 plaintiffs in the United States and across the globe have employed a creative new tactic: suing their governments for failing to take sufficient measures to reduce greenhouse gas emissions. These cases raise separation of powers questions about a court’s ability to order a government to reduce emissions. In other words, does climate change present a nonjusticiable political question? The U.S. District Court for the District of Oregon recently answered no in Juliana v. United States,3 but the Ninth Circuit is hearing an interlocutory appeal under pressure from the Supreme Court.4 Given the case’s rocky procedural history, the fate of the district court’s holding is anything but certain.5 Plaintiffs may find comfort by looking abroad, however. Recently, in State of the Netherlands v. Urgenda Foundation,6 the Hague Court of Appeal upheld an order issued by the Hague District Court requiring the Dutch government to reduce its greenhouse gas emissions by at least 25%, relative to 1990 levels, by the end of 2020.7 Urgenda’s separation of powers analysis parallels the political question inquiry U.S. courts are grappling with in cases like Juliana, and may provide an administrable framework for U.S. courts regarding the justiciability of climate change.
The Urgenda decision arrived on the heels of international scientific and political recognition that climate change is an urgent issue. In 2007, the Intergovernmental Panel on Climate Change (IPCC) released its Fourth Assessment Report. The report concluded that by 2020, greenhouse gas emissions from developed countries, including the Netherlands, must be 25–40% lower than they were in 1990 to achieve a greater-than-50% chance of avoiding dangerous and irreversible global warming (warming of more than 2°C).8 The IPCC’s 2014 Fifth Assessment Report stated that these reductions would have a 66% chance of keeping warming below 2°C.9 Global climate conferences have produced international agreements to reduce greenhouse gas emissions,10 and the European Union has committed to emissions reductions of 20% by 2020, 40% by 2030, and 80–95% by 2050, each relative to 1990.11 Until 2011, the Netherlands maintained a reduction target of 30% for 2020, but the State later adjusted this target to align with the European Union’s 20% reduction target.12 Urgenda Foundation (Urgenda), a citizens’ platform focused on preventing climate change,13 sued the Dutch government on behalf of itself and 886 individuals,14 contending that this lowered target violated provisions of the Dutch Constitution, the European Convention on Human Rights (ECHR), and the government’s duty of care under the Dutch Civil Code.15
The Hague District Court rejected Urgenda’s claims brought under the Dutch Constitution16 and the ECHR,17 but agreed with Urgenda that the government had violated its duty of care under the Dutch Civil Code.18 Relying primarily upon IPCC reports, the court found that anything short of a 25–40% reduction in Dutch greenhouse gas emissions by the end of 2020 would be insufficient “to prevent dangerous climate change,”19 in breach of the State’s duty of care.20 The court therefore ordered the State to reduce its greenhouse gas emissions by at least 25% relative to 1990 levels by the end of 2020.21
The Hague Court of Appeal22 upheld the judgment on the grounds that the State had violated Articles 2 and 8 of the ECHR.23 Overruling the district court on the jurisdictional issue, the appellate court held that the “victim” requirement of Article 34 of the ECHR restricts admissibility only to the European Court of Human Rights; it had no bearing on Urgenda’s access to Dutch courts.24 The court found that the right to life in Article 2 and the right to private life, family life, home, and correspondence in Article 8 placed a positive duty of care on the government to protect against environmental situations that would adversely affect those rights.25 Because climate change poses a known, real, and imminent threat of loss of life and disruption of family life to Dutch citizens,26 and because “at least a 25–40% reduction of CO2 emissions as of 2020 is required to prevent dangerous climate change,”27 the court agreed that the State must reduce emissions by at least 25% by the end of 2020 to satisfy its duty of care.28
Both courts rejected arguments by the State that the order to reduce emissions violated the trias politica — the Dutch system of separation of powers.29 The appellate court first addressed the State’s argument that policy decisions regarding the significant financial and other sacrifices required to reduce greenhouse gas emissions should be left solely to the democratically elected government.30 The court reasoned that the State’s violation of human rights demanded that protective measures be taken and that the open-ended nature of the order left the government sufficient discretion to make policy choices as to how to comply.31 The court then considered the State’s argument that the order constituted an “order to create legislation” that the court could not impose on the government.32 The court disagreed, emphasizing the State’s complete discretion as to the methods of compliance and the content of any legislation.33 Finally, the court rejected the State’s argument that the trias politica prevented the court from imposing an order on the State, pointing to the judicial obligation to apply human rights provisions.34
Urgenda provides a framework for U.S. courts to adjudicate rights-based climate cases brought against the government without violating separation of powers principles. While the specific constitutional structures of the Netherlands and the United States are different, the principles articulated in Urgenda are transferable at a high level of generality to the U.S. political question doctrine, which is “essentially a function of the separation of powers.”35 In the United States, public attention is focused on Juliana v. United States, in which youth plaintiffs sought declaratory and injunctive relief against various executive actors, alleging that the defen-dants’ failure to adequately address climate change violated the plaintiffs’ due process, equal protection, Ninth Amendment, and public trust rights.36 Despite the Oregon district court’s ruling that the claims were justiciable under the political question doctrine,37 the matter is far from settled.38 The Dutch courts’ separation of powers reasoning in Urgenda may provide a pathway for U.S. courts to conclude that constitutional climate change cases do not raise nonjusticiable political questions.39
In the United States, a case is nonjusticiable under the political question doctrine if one of six “formulations” set out in Baker v. Carr40 is “inextricable” from the case.41 Political question analysis in the climate context has focused primarily on the first three formulations42: “[(1)] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [(2)] a lack of judicially discoverable and manageable standards for resolving it; [and (3)] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.”43 Urgenda illustrates why cases like Juliana avoid all three of these formulations: the first, because the subject matter is not exclusively the concern of another branch and the requested relief leaves the political branches sufficient policymaking discretion; the second, because determining whether federal action violates constitutional rights is standard practice for the judiciary; the third, because deciding the case does not require making policy determinations regarding the “best” level of emissions or who should bear the cost of emissions reductions.
While Urgenda cannot speak to specific constitutional provisions, its reasoning suggests how U.S. courts might conclude that neither deciding whether the plaintiffs’ constitutional rights have been violated nor issuing a remedy would infringe upon another branch’s constitutional commitments. There is no doubt that the power to legislate lies with Congress and the power to regulate pursuant to legislative authority lies with the Executive.44 However, ensuring that those powers are exercised in a constitutional manner is “a function ultimately the responsibility of [the courts],”45 just as adjudicating the Netherlands’ violation of human rights falls to the Dutch courts.46 The U.S. Constitution does not absolve courts of this duty in climate cases; it “does not mention environmental policy, atmospheric emissions, or global warming,”47 let alone commit these issues to another branch.
Similarly, judicial scrutiny of the government’s approach to climate change would not interfere with the Executive’s constitutionally committed control over foreign policy. Although climate change is “sometimes the subject of international agreements,”48 Juliana concerns only domestic emissions.49 This leaves the argument that an order to reduce U.S. emissions would undermine the Executive’s constitutional role of negotiating international climate treaties.50 However, the district court in Urgenda reasoned that the Dutch government may not disregard constitutional rights in order to strengthen its bargaining position for international negotiations.51 Analogously, the U.S. political branches may not violate constitutional rights under authority of a treaty;52 a fortiori, they may not do so in order to negotiate a treaty.
Neither would the Juliana plaintiffs’ requested remedies impinge upon issues constitutionally committed to another branch. Declaratory relief would not entail any judgment beyond deciding the merits of the case, which falls squarely within the federal judiciary’s role of deciding constitutional questions. While injunctive relief would require executive agencies to take action (plaintiffs sought an order “directing defen-dants to develop a plan to reduce CO2 emissions”53), granting such relief is well within a court’s capacity.54 Furthermore, this would not be the first time a court has ordered the Executive to act on constitutional grounds.55 Crucially, the order would not “direct[] any individual agency to take any particular action.”56 Like in Urgenda, compliance with the order may not require any regulatory action and, even if regulation would be necessary, the order would “in no way prescribe[] the content of such [regulation].”57 Because the agencies would retain complete discretion as to how to reduce emissions to a level consistent with the plaintiffs’ constitutional rights, Juliana avoids judicial encroachment on executive regulatory power while fulfilling courts’ obligation to decide cases and grant appropriate judicial relief.58
Urgenda similarly provides reasoning for U.S. courts to apply when assessing the second Baker formulation. In particular, Urgenda emphasizes the courts’ role in protecting rights and offers a model for judicial management of scientifically complex cases. U.S. jurisprudence has established clear tests for evaluating constitutional rights claims,59 and the scientific complexity of climate change does not alleviate the courts’ obligation to protect constitutional rights.60 In fact, Urgenda provides a fairly straightforward method for dealing with scientific complexity: Trust the scientists! The Dutch courts’ use of IPCC reports to determine what level of emissions reductions would be required to protect plaintiffs’ rights demonstrates how scientific evidence can assist courts in constructing judicially discoverable and manageable standards for complex issues.61
Finally, by ordering the minimum emissions reductions consistent with plaintiffs’ human rights and leaving it to the political branches to decide how to get there, Urgenda demonstrates how Juliana avoids the third Baker formulation. Concerns raised in climate change tort litigation over what constitutes an unreasonable amount of greenhouse gas emissions62 and who should be held responsible63 are inapposite in climate suits brought against the federal government on constitutional grounds.64 The Dutch courts limited their order to only the bare minimum of the 25–40% reduction required “to prevent dangerous climate change”65 and did not consider whether a higher standard would be more appropriate. Similarly, the plaintiffs in Juliana “do not ask [the c]ourt to pinpoint the ‘best’ emissions level; they ask [the c]ourt to determine what emissions level would be sufficient to redress their injuries.”66 The court therefore avoids weighing the costs of emissions against the benefits of emissions-producing activity to determine what is “reasonable.”67 Neither does Juliana require the court to identify a scheme for who should be held responsible for climate change. Because the agencies would retain complete discretion as to how to implement the order — which oil and gas leases to discontinue, which polluters to regulate, and so on — the court need not determine which actors should bear the cost of global warming.
Climate change plaintiffs face a multitude of obstacles at each stage of the litigation process, not the least of which is getting into court. Fitting a problem as unique and complex as climate change into existing legal structures is a challenge that will take time, creativity, and significant trial and error. While navigating this process must appear a daunting task to any court, U.S. courts may find solace and reaffirmation in the analogous reasoning of their Dutch counterparts in Urgenda.