Freerk Vermeulen, a partner in our Litigation & Arbitration practice, head of our Supreme Court practice, and lead counsel on NautaDutilh's Urgenda team, was recently interviewed about climate change litigation by both the International Bar Association (IBA) and the UK's leading law journal, The Lawyer.
In these interviews, Freerk discusses the Dutch Supreme Court's ruling in the Urgenda case, in which Höcker and NautaDutilh represented the environmental NGO Urgenda. The ruling of 20 December 2019 set a historic precedent, finding that the Dutch government has a duty under the European Convention on Human Rights to reduce greenhouse gas emissions.
In the IBA interview Climate litigation: European rulings set legal precedents for government accountability Freerk notes that both the Court of Appeal and the Supreme Court have acknowledged that governments should be able to convincingly show that their policy is and will remain in line with the Paris Agreement.
In The Lawyer interview, Freerk states that the heart of the Urgenda ruling is the government's duty of care to its current and future citizens. In rendering its decision, the Dutch Supreme Court, he adds, was fully aware of the novelty of basing climate litigation on human rights. The international dimension of the case, he says, was due to the effort-sharing norms embodied in the European Convention on Human Rights, which led the Supreme Court to hold that even though the Dutch government is responsible for only 0.5% of global CO² emissions, it should take action based on its proportional contribution to the global issue. “In the past, a lot of climate litigation actually failed because of this type of causality argument, and that's why the Supreme Court has been very principled to tell the government that it should take measures in accordance with its contribution to the global phenomenon".
Freerk predicts that the growing attention to climate change means that if governments fail to take robust measures in the coming years, CEOs and corporate boards are likely to be taken rapidly to the legal level. Financial institutions, banks and insurers could also be targeted, and organisations such as central banks will increasingly demand robust policies on climate change, which could result in further litigation.
Freerk adds, “The assessment of potential risks relating to climate change should remain at the top of the board’s agenda. As businesses are trying to weather the storm caused by the COVID19 pandemic, this may pose enormous challenges but may also generate opportunities to be ahead of the curve and develop robust sustainable business models. We are keen to discuss these challenges and opportunities with our clients."