The role of the sustainability principle in climate change litigation

The ruling of a Hague court issued in June 2016 in the Urgenda case has meant a real earthquake, not only from a political perspective but also from the legal one. By considering that the Dutch State negligently failed to do... [ view full abstract ]

The ruling of a Hague court issued in June 2016 in the Urgenda case has meant a real earthquake, not only from a political perspective but also from the legal one. By considering that the Dutch State negligently failed to do enough to achieve the internationally agreed goals in order to fight climate change, this ruling has automatically become a leading case of comparative environmental case law and a template for similar lawsuits brought in other countries (such as the Klimaatzaak case in Belgium, the claim filed by Greenpeace Norge and Natur og Ungdom in Norway, or the one of a Pakistani lawyer before the Lahore court, among others). Interestingly enough, one of the basis on which several of these claims are grounded is the principle of sustainability (or sustainable development). Indeed, sustainable development is one of the very cornerstones on which the claimant's activity (namely the Urgenda foundation) is based, according to its bylaws. The paper exposes the meaning and scope of that principle in the context of environmental liability litigation in general and climate change litigation in particular. Taking the Dutch ruling a starting point, the paper inquires to what extent sustainability may or should induce or provoke changes in the present environmental liability law. Bearing in mind that the Dutch state has appealed the lower court decision, it is explored whether, and to what extent, tort liability may be established for having failed to keep up to the sustainable development principle and how this idea may have an impact on the practical application of the existing liability regimes. In particular, and taking into account that other environmental organizations are considering the possibility of filing suits against the states on similar grounds in other countries, it is questioned whether the Urgenda claim will eventually succeed and whether other it can be relied upon abroad. It is submitted that the outcome of the case is plagued with difficulties and that courts in other countries may not be as willing to tread into the political debate behind the claim. 

Key words: climate change, litigation, tort law, liability, sustainable development