Too big to trial? Lessons from the Urgenda case

Too big to trial? Lessons from the Urgenda case Abstract Is climate change too big to trial? Is tort law adjudication capable of dealing with a huge public interest like climate change? The answer to these questions is dependent on at least three different issues, namely (i) the possible interpretations of the relevant rules and concepts of tort law, (ii) the possible legitimations of tort law liability, and (iii) the public law questions involved (the constitutional position of the court included). Using the Dutch landmark case of Urgenda Foundation v State of the Netherlands, the author researches the issues involved. The conclusion is that climate change liability stretches the possibilities of tort law adjudication to the max and even beyond, depending on one’s readiness to adjust it to societal problems like climate change. I. Introduction In the spring of 2015, the District Court of The Hague issued a ruling that had a tremendous impact across the globe.1 In the case of Urgenda Foundation v State of the Netherlands, the Court issued an injunction against the Dutch government to reduce the emission of greenhouse gases (GHGs) by 25 per cent before 2020 compared to 1990, while the government policy aimed at a reduction of (not more than) 17 per cent.2 This implied a substantive effort of the government to reduce the emission of GHGs. Perhaps even more surprising than this decision—taken only six months before the United Nations (UN) Conference on Climate Change in Paris in November–December 2015—was the reasoning of the Court. After allowing standing to Urgenda as the plaintiff, the Court reasoned its way through the key concepts of tort law to motivate its decision that the State had violated its duty of care towards its citizens. In doing so, the Court used international and European obligations to construct wrongfulness under national tort law, on the one hand, and displayed all available scientific knowledge to substantiate that wrongfulness, on the other. In fact, the Court used tort law to contribute to the solution of one of the most urgent problems mankind is facing today: climate change. The question whether the Court was right in doing so entails many aspects, one of which will be dealt with in this article. The problem addressed here is the question whether tort law adjudication is a fit and proper means for dealing with a global problem like climate change. For a start, there are signs to the contrary. The Urgenda ruling was the first judicial decision acknowledging a claim for climate change liability. There had been attempts before in the USA, but they had all failed.3 Two striking differences can be observed between the Urgenda ruling and its failing predecessors. The first is that the Urgenda ruling was a case of organized citizens against the State, while, in the USA, the States and others had filed claims against polluting corporations. So here, for the first time, the State was the defendant, not the plaintiff. In addition, the plaintiffs in the Urgenda case did not claim compensation for damages but, rather, an injunction for the defendant to adjust its climate policy. Again, for the first time, the prevention of future harm was at stake, not the compensation of harm already done. Despite these differences, climate change liability seemed to be a far cry.4 The reason for this, of course, is the nature of climate change itself. Climate change is a global common problem that is neither caused by the Netherlands alone nor can be solved by the Netherlands alone. The mitigation of climate change, on the other hand, is both non-excludable (meaning it is difficult to exclude any individual or institution from the shared global benefits of emissions reduction undertaken by any local actor) and non-rival (meaning they may be enjoyed by any number of individuals or institutions at the same time, without reducing the extent of the benefit any one of them receives).5 What does this imply for a lawsuit such as the Urgenda case? My claim is that the courts in the Urgenda case—both the District Court and more recently the Appellate Court—are not just dealing with two opposing interpretative views on the facts and the law but also with two conflicting paradigms of tort law adjudication. Roughly speaking, the one claims that tort law adjudication is a fit and proper means for dealing with global common problems like climate change (the position of Urgenda, of course), while the other denies this (the State). The key question is whether climate change is too big to trial. This is not just a matter of scale since it involves different conceptions of tort law adjudication. What is at stake here is whether tort law adjudication is capable of dealing with huge public interests like climate change or whether it stops short since it essentially only addresses individual interests (or mass claims, for that matter).6 What divides both paradigms is a difference in view on at least three issues, namely (i) the possible interpretations of the relevant rules and concepts of tort law; (ii) the possible legitimations of tort law liability; and (iii) the public law questions involved (the constitutional position of the court included). In this article, I will research these issues respectively. First, I will deal with some notorious tort law issues (the issues of standing, wrongfulness, and the problem of the many hands) (section II). Next, I will turn to private law legitimations (regarding adjudication, paradigms of tort law, and the principles of justice) (section III). And, finally, I will close with the public law dimension of the issues involved (the separation of powers, the principle of consistent interpretation, and the public dimension of tort law adjudication) (section IV). My conclusion will be that climate change liability stretches the possibilities of tort law adjudication to the max and even beyond, depending on one’s readiness to adjust it to societal problems like climate change. However, I will resist the claim that it is impossible for tort law adjudication to deal with climate change (section V). Tort law adjudication is responsive enough to facilitate climate change liability, if we are prepared to reconsider some of its key doctrines. At the end of the day, it all depends on one’s views—political or otherwise—on the purpose of tort law adjudication in society at large. Furthermore, it is my conviction that this readiness is to a high extent decisive for the future of tort law adjudication. Will tort law adjudication remain what it essentially has been: a legal system and practice for the compensation of damage individuals inflict upon each other (even large numbers of individuals)? Or will it play a role in addressing public interests, even on a global scale, that transcend the realm of individual or even mass harm and restoration? The Urgenda case is a test case because, among many other reasons, it confronts us with this dilemma. II. Tort law issues Over and all, there are three main tort law issues involved in the question whether climate change is too big to trial—namely, the issues of standing, wrongfulness, and causation. I will address them respectively. 1. Standing, but for whom? The question of standing is, under Dutch law, a question of representation.7 Who is authorized to represent the interests at stake? Article 305a, book 3, of the Dutch Civil Code contains a provision for a class action of a foundation or association representing (according to its bylaws) the same interests of other persons. This provision is meant to be used for both private and public interest litigation, offering interest groups access to the court, thus creating a countervailing litigating power against powerful repeat players. As far as standing concerns, tort law adjudication is, under Dutch law, not an individual concern anymore. It allows for both class actions and public interest litigation as well as the combination of the two. In this case, however, Urgenda claimed access on the ground of Article 2 of its bylaws, which reads that its purpose is ‘to stimulate and speed up transition processes to a sustainable society, to start in the Netherlands’. For interpretative purposes, Urgenda quoted the Brundtland report that ‘sustainable development is development that meets the need of the present without compromising the ability of future generations to meet their own ends’.8 In line with the claim that sustainability has an international as well as an intergenerational dimension, the District Court allowed Urgenda standing for the representation of people abroad and (even) people yet unborn. Standing for future generations was unprecedented in Dutch law.9 For the State, this was all too vague and far-fetched. It held the position that the phrase ‘to start in the Netherlands’ implies a restriction to Dutch inhabitants. This implies that the claims of Urgenda are non-admissible in so far as they extend to foreigners and future generations (here and abroad). Therefore, the question is: is it too far-fetched to allow such an unlimited collection of people to start a tort suit? At first sight, there is indeed something awkward in this. Since climate change is caused—or at least aggravated—by the emission of GHGs, we are all involved in many ways. Individual citizens, corporations, and public bodies are both emitting GHGs as well as suffering from their consequences. So we are all wrongdoers as well as victims. Who, then, is Urgenda actually representing? Or, better, who is excluded? If I am a Dutch citizen, who is actually representing me in this trial: Urgenda, the State, or perhaps both? Am I suing myself then? These questions lead to paradoxes. A good starting point might be to recognize that if and when a foundation like Urgenda is allowed to represent a public interest like sustainability, the collection of people benefitting from it is necessarily unlimited. This is a consequence of the very nature of the problem of climate change, which is, as we have seen, both excludable and non-rivalry. The interest involved is therefore likewise common or public and, thus, indivisible. Any attempt to limit the collection of people benefitting from it will be idle. What remains is the following dilemma: either we accept the representation of a public interest like this (and stop asking paradoxical questions), or we do not (in which case they will always be bothering us because new cases of public interest litigation will arise).10 This is exactly what divides the two paradigms involved. 2. Wrongfulness, but how? The question of wrongfulness has turned into a debate on the notion of the ‘reflex effect’ of the international commitments of the State on the open norms of tort law. The reasoning of the District Court was as follows: on the one hand, the State has committed itself on many international stages to a substantive reduction of GHGs (the UN climate system, the ‘no harm’ principle of international public law, the measures and agreements of the European Union (EU), and Article 21 of the Dutch Constitution). On the other hand, under Dutch constitutional law, these commitments are not enforceable by Dutch citizens if they are not self-executing (according to Article 93 of the Dutch Constitution). It is accepted Dutch case law, however, that the State is presumed to want to comply with its international obligations. Therefore, a norm of national origin (written or unwritten) may not be interpreted or applied in such a manner as to result in an infringement of an international norm by the State, unless no other interpretation or application is available.11 This principle of consistent interpretation has the consequence that a court, in interpreting national tort law, must take into account these international and European commitments. What the Court does, in essence, is to construct the unwritten duty of care of the State towards its citizens in the light of its international commitments. This is innovative, to be sure, but so is the whole transformation of the national legal system into a multilayered one. Of course, the State strongly objected. In the appeal trial, it claimed that this reflex effect is not a sufficient ground for the interpretation or construction of an unwritten duty of care. The State’s international commitments do not only lack direct effect, so it claimed, but they are also insufficiently specified to interpret them as self-executing. What is more, that would violate the State’s discretion to the extent that it would cause a chilling effect on its future policy on the international stage.12 I doubt whether the Appellate Court will be impressed by this objection. However, the State had a point, emphasizing that the Court, in attributing such a strong impact to this reflex effect of transnational law, in fact was attibuting something like a direct effect to its norms, while they lack direct effect under the Dutch Constitution. In doing this, the Court blurred the whole distinction between international norms with and without direct effect, which was at odds with Article 93 of the Dutch Constitution. This objection, however, is no more than an indication that there is something wrong here, but it does not address the roots of this wrong. If we want to dig deeper, we have to address the question of the meaning and the extent of the principle of consistent interpretation. On the one hand, it seems unlikely that this principle justifies such a strong reflex effect as the Court presupposed since that would blur the constitutional distinction between norms with and without direct effect (Article 93 of the Constitution). On the other hand, we cannot leave it at that since that would prevent any interaction between the transnational and the national legal systems. The different legal systems in play have to be distinguished, but they cannot be separated. What then does the principle of consistent interpretation really entail? Since this is a public law question, I will address it in section IV.2. For now, we may conclude that there seems to be more constitutional law in this case than even the State imagined.13 3. Many hands, and now? Another key issue is the problem of the many hands: global warming is caused by many actors and can only be solved in a joint effort. The State pleaded that the contribution of the Netherlands in the worldwide emission of GHGs is no more than ‘a drop in the ocean’ (in 2014, no more than 0.35 per cent of the global emission). In fact, a reduction of the emission of GHGs with 25 per cent as ordered by the Court would reduce the average global warming by approximately 0.000.045 degrees Celsius. Besides, a reduction of the emission of GHGs by the Netherlands will most probably result in more emissions from other European countries (because of internal agreements, the so-called ‘waterbed effect’), the movement of large polluters to continents with less strict requirements (‘carbon leakage’), and a disturbance of the level playing field for Dutch corporations. In legal language, this amounts to the State’s defence that the ‘but for test’ of causation fails; the Dutch share in the worldwide emission of GHGs is simply too small to matter. For the same reason, proportional liability is excluded since, according to established case law, proportional liability requires that the contribution of the tortfeasor is not too small (or too big).14 The State claimed that the Court, in appealing to the precedent of the French salt mines in which they were held liable for their share in the total amount of salt dumped in the river Rhine (which was about 20 per cent), had misunderstood the ratio decidendi of that case.15 The French salt mines did contribute with a substantive share in the total amount of salt, while the State hardly contributes to the worldwide emission of GHGs. However, the problems appear to run deeper. In the first place, the analogy with the case of the French salt mines indeed fails, but for a different reason. That case was about the compensation for damages and the possibility of a proportional share in the total amount of damages. The Urgenda case, however, is not about the compensation for damages but, rather, about an injunction to adjust the Dutch share in the worldwide emission of GHGs. Proportional liability for future damage seems far less evident than for damages that have already occurred. The reason is that the burden of prevention may take many unexpected twists and turns; it may be compensated, renegotiated, redistributed, replaced, and even disappear completely (if others do more than their fair share). This is what the whole debate on the waterbed effect, the carbon leakage, and the negotiations for the Paris Agreement is all about. Nothing is certain if we discuss the future. However, it would be quite unsatisfactory if this would exempt the State from its share in the global emission of GHGs (however small) since it applies to every country in the game (the big fishes included). At the end of the day, every contributor would be exempted, and no one would be accountable for the dangerous temperature rise of two degrees Celsius or more that would result. So here is our dilemma: either we stick to our usual concepts and doctrines (and every player in the game will escape responsibility), or we will indeed turn to some form of proportional liability (and we will have to reconsider our concepts and doctrines as a result). A starting point could be the observation that the problem of the many hands is in essence an issue of the fair distribution of the burdens of prevention and not just a factual matter of each one’s relative share in the worldwide emission of GHGs. The Court stretched the notion of proportional liability beyond its interpretation in Dutch law, for the only reason that proportionality seems an adequate standard for a fair distribution to start with. Of course, other considerations may enter the debate, such as the historical development of the relative contributions. Third World countries have a backlog, but, unfortunately, they are catching up swiftly. In the context of an international treaty, this is a key issue, but, for a court, it is too fine-grained. So, in the end, the Court was perhaps not that wrong in embracing proportionality, not as a test for causation or liability under Dutch law but, rather, as a standard for a fair distribution of the burdens of prevention of future harm. 4. Summary Summarizing the tort law issues, we have found that climate change seems to be too big to trial in tort law only if we stick to the usual interpretations of the available concepts, rules, and doctrines. If we keep on asking who is represented by whom, standing remains an issue. If we keep on drawing sharp distinctions between the legal systems in play, we fail to provide for a concise normative framework. And as long as we hold on to our view that the problem of the many hands is a question of causation, we will not succeed in solving that problem. In dealing with climate change, tort law needs nothing less than a shift of paradigm. In any case, tort law adjudication must learn how to deal with the representation of global public interests, the interface between the transnational and the national legal systems, and the fair distribution of the burdens of precautionary measures. This brings us to the issue of the possible legitimations of tort law liability for global warming. III. Private law legitimations The question whether climate change is too big to trial has led us to some tort law issues, all concerning the ‘how’ of the applicable law. Now we turn to the legitimations, all concerning the ‘why’ of these applications. Again, there are diverging paradigms to be distinguished, and, again, there are three issues involved—namely, the different conceptions of civil adjudication (procedural law), of private (tort) law (substantive law), and of justice (the principles on the background). 1. Civil adjudication: litigation or more? As far as civil adjudication is involved, there are two paradigms to be distinguished, which have been named the ‘problem-solving conception’ and the ‘public life conception’ of civil adjudication respectively.16 In the problem-solving conception, the civil court is just there to litigate between opposing parties, roughly in the same manner an arbitration committee would do the job. This perspective on civil adjudication is dominant in neo-liberal policy-making, comparing adjudication with other mechanisms for conflict resolution. In the public life conception, however, civil adjudication is claimed to have added value for society beyond the litigation of this specific conflict. In litigating conflicts, civil courts enforce established norms, develop new ones, offer legal protection, review public policies, and, thus, maintain the rule of law. Civil adjudication therefore has an inherently public dimension, which is lacking in the problem-solving conception.17 In fact, civil adjudication is part of the way a political community governs itself and, thus, part of the political decision-making process (where ‘political’ is used in the broad sense of self-governance). Of course, there are different responsibilities here. The grand design of society and the formation of policy belong to the political domain, but the review and even the correction of policy in the light of established rights and interests is a judicial responsibility.18 The legitimation of the Urgenda ruling is to be found in this public life conception of civil adjudication. In this case, the Court was not just litigating between opposing private parties, as the State would have wanted it. First, the Court clearly offered legal protection to citizens against a government that infringed their right to be protected against a dangerous temperature rise occuring. As such, the Court placed itself in a position to review the government’s policy on the emission of GHGs. Civil adjudication is there, among many other things, to serve legal protection. Next, the Court was clearly conscious of its role in the process of law development. The Urgenda ruling displays the construction of a new norm on the ground of international obligations and EU regulation and their reflex effect on the open norms of national tort law. Finally, the Court took a stand towards the risks and dangers of climate change as one of the major challenges society is facing today. Again, this exceeds the usual purpose of private law litigation considerably and can only be legitimized in a framework that takes the public role of civil adjudication seriously. The Court therefore appears to be embracing the public life conception of civil adjudication. 2. Civil (tort) law: deontic, functional, or something else? The nature of civil law in general—and tort law in particular—is in dispute as well. Roughly speaking, we can (again) distinguish two paradigms. The so-called ‘deontic paradigm’ rests on the conviction that private law is a system and a practice in its own right. Private law is a unique combination of its conceptual structure, the private relations regulated, and the way they are regulated by rules and principles.19 To understand its sui generis character, we have to research its key concepts like contract and tort in terms of the mutual rights and obligations of the parties involved in the light of the notion of corrective justice (compare section III.3). The traditional purpose of tort law is the compensation of harm done and perhaps an element of satisfaction of the victim.20 This deontic paradigm is challenged by the ‘functional paradigm’ that takes private law to be part of its social context and the role or function it plays in that context. Law and economics, for example, sees private law as a system and a practice to enhance social welfare and to reduce social costs. Private law is therefore not an end in itself; it is an instrument to achieve some pre-established end like the reduction of the costs of accidents. From this perspective, tort law serves some societal purpose, like deterrence or risk regulation.21 Its study is not just doctrinal in nature but also requires empirical research, as in other social sciences. Neither of these paradigms legitimizes the Urgenda ruling since the one stops short, while the other justifies too much. Let us start with the deontic paradigm. From this perspective, the liability of the State cannot be justified by any compensatory scheme within the framework of the principle of corrective justice.22 The Court ruled that the State cannot escape liability by appealing to its small share in the global emission of GHGs (the problem of the many hands). It argued that the State’s fair share is substantiated by the commitments the Netherlands has undertaken on the transnational stage, on the one hand, and the relatively high proportion of emissions per capita of the Dutch population, on the other. Whatever the merits of these standards, they are applications of the principle of distributive justice and a far cry from the regular patterns of legitimation of tort liability that stick to the principle of corrective justice.23 Therefore, the traditional pattern within the deontic paradigm of tort law stops short.24 The functional paradigm, on the other hand, justifies too much. From this perspective, the Urgenda ruling is just another mechanism for deterrence or risk regulation. But there is something wrong with this argument. Although tort law adjudication may have implicit consequences for risk regulation, it was never designed for that purpose, while, on the other hand, risk regulation might be better served by other means (like public law).25 The functional approach simply justifies too much, while the deontic approach stops short. It seems we need a third position that covers the middle ground between the deontic and the functional paradigms. We will come back to this issue in sections III.3 and IV.3. 3. The principles of justice: separate or mixed? We already touched upon the principles of corrective and distributive justice, which have deep roots.26 Both principles apply in a situation where justice and equality are at stake. What is common between both principles is that they both tie people together according to a notion of equality. Unjust is the situation in which one person has too much or too little in relation to somebody else. Each principle construes equality differently, however: corrective justice construes equality as the restoration of an equilibrium that existed before an infringement, while distributive justice construes equality as the equal distribution of goods or burdens according to a standard of proportionality. The principle of corrective justice requires restoration if a wrongful action of somebody harms someone else. What the wrongdoer has done and what the victim has suffered, are the active and the passive side of the same injustice. For that reason, the principle of corrective justice requires equivalence between the harm inflicted and the restoration to be executed. Corrective justice is therefore not just the ground of liability, but it also specifies its limits.27 The principle of distributive justice, on the other hand, requires a fair distribution of goods or burdens between the members of a community. In particular, it requires a distribution according to a fair and objective standard of equality. For that reason, it applies particularly in larger communities and not in bilateral relations. The principles of corrective and distributive justice are traditionally reserved for different domains of law. According to the deontic paradigm—the most traditional view—private law is the exclusive domain of corrective justice, while distributive justice applies exclusively in public law. This implies that, in private law, considerations of a fair distribution are simply not allowed. The problem with this view, however, is that this does not fit the practice of private law. In some legal systems (for example, the Dutch one), it is left to the discretion of the court to mitigate the amount of damages on the grounds of the relative wealth of the parties involved (Article 109, book 6, of the Civil Code). The court is therefore authorized to take consideration of distributive justice. The Urgenda case provides another example in which the Court relies not only on considerations of corrective justice but also on reasons of distributive justice. With regard to the proportional liability of the State, it appealed to the Annex I status of the Netherlands in the 1992 UN Framework Convention on Climate Change and the fact that the emission per capita is relatively high. As we have already mentioned, these are applications of the principle of distributive justice (see section III.2), here not applied in the relation between individuals but, rather, in the relations between States. This illustrates that the principle of distributive justice is an active principle in tort law adjudication, whether we like it or not. What is more, the Urgenda case illustrates that considerations of distributive justice behave like a cuckold in the nest; once we let them in, they tend to squeeze out other considerations. As we have seen, the deontic paradigm of private law with its exclusive role for corrective justice justifies too little, while the functional paradigm that allows for distributive justice justifies too much. As we have noted, we need an intermediate position that provides for an acceptable mix of the principles of corrective and distributive justice.28 Although this is a rather complicated philosophical debate, I want to suggest a starting point.29 The deontic paradigm is correct in pointing out that the principle of corrective justice justifies liability in tort law, both in the procedural sense that it ties the wrongdoer and the victim together in a bilateral legal relationship as well in the substantive sense that it justifies a right to compensation with a corresponding duty. But that is not the end of the story. The principle of distributive justice does play a role in tort law; in fact, it plays a double role. First, the debate on distributive justice helps in specifying the substance of corrective justice. The principle of corrective justice requires restoration, but it does not answer the obvious question: restoration of what?30 We usually take it for granted that the victim needs to be restored in his or her financial position because we take it for granted that compensation is about the transfer of money. This is not evident, however, if we take non-compensatory damages into account.31 Besides, money is not an end in itself—as both Aristotle and Amartya Sen have emphasized32—it is a means to an end, for example, a better quality of life. From the debate about distributive justice, we may learn that it is not wealth, but capabilities, that constitute the substance of justice.33 The other role played by the principle of distributive justice is that, although it does not provide for the ground of liability in tort law, it may provide for reasons for its limitation. In limiting the wrongdoer’s duty to compensate the victim’s damage, all kinds of distributive considerations may—and in fact do—play a justifying role in a court’s reasoning. 4. Summary Summarizing the private law’s legitimations, we have found that climate change is too big to trial only if we hold on to our usual legitimation patterns. If tort law adjudication is only about litigation (and nothing more), if tort law is just a system and practice in its own right (serving no other purpose), and if corrective justice is the only justifying principle (leaving distributive justice to public law), then tort law adjudication has no business with climate change liability. However, if we are willing to take a broader perspective, we might see more opportunities. This broader perspective includes, among many other things, a public life conception of civil adjudication, an intermediate position between a deontic and a functional paradigm on tort law, and a mixed theory on the principles of corrective and distributive justice. From this perspective, a civil court has a responsibility for the maintenance of tort law, tort law has a societal purpose outside itself, and the principles of corrective and distributive justice can only in combination bring justice to society. In other words, private tort law adjudication has a public function, which is phrased by some as ‘the public life of private law’.34 IV. Reflections on public law Finally, we have some public law questions to address. We have seen that both some of the tort law issues and some of the private law legitimations refer to public law. First, the principal defence of the State is that the debate on climate change belongs in Parliament and not in a court of law (the appeal to the separation of powers). Next, there is the still the question regarding the meaning and extent of the principle of consistent interpretation (see section II.2). Does it justify such a specific instruction as to reduce the emission of GHGs by 25 per cent in 2020 in comparison with 1990? Finally, we elaborate on the public dimension of tort law adjudication. 1. The separation of powers: judicial trespass or not? The principal defence of the State was that an injunction like the Court had issued constituted a violation of the doctrine of the separation of powers (‘trias politica’). The central idea, of course, was that this doctrine specifies a certain division of labour between politics and the judiciary and that the Court in the Urgenda ruling trespassed on the political domain.35 The Court reviewed such a highly sensitive topic for governmental policy as the emission of GHGs and even gave an injunction to the government to adapt its democratically established policy. In doing this, the Court made decisions that are essentially of a political nature and, therefore, ought to be taken by the legislator or the government but, in any case, not by the judiciary. The Court, however, explicitly rejected this defence in an exceptional reflection on its own constitutional position. In short, it recognized its subordinate position with regard to the regulation of principal societal issues, while, at the same time, stressing its judicial responsibility to offer legal protection when asked, even if the defendant is the State. This system of legal protection is guaranteed by law and, therefore, democratically legitimized. Urgenda’s claims did not reach outside the judicial domain since they did not ask for an order to legislate (which is prohibited under Dutch case law).36 Furthermore, the requested injunction may be executed by different means, which is left to the discretion of the State. For these reasons, the Court saw no violation of any constitutional principle or rule if it ordered the State to adjust its climate policy. Although this is a subtle enough reasoning, it clearly did not convince the State. In the appeal trial, it elaborated on this defence by reminding the Appeal Court that in the meantime a draft law on the emission of GHGs had been proposed, that the Court in first instance seemed to have forgotten that the interests of third parties were involved (like electricity companies), that the Court had neglected that this all required a balance of the financial, political, and environmental interests involved, and that the Court’s injunction entailed de facto an order to legislate (which is not allowed) since the State cannot comply without additional legislation. What strikes me in the arguments of the State, however, is that they focused on the relation between the national legislator and the national judiciary, while ignoring that the transnational dimension of this case is relevant for the doctrine of the separation of powers as well. If we take into account that the stage for the Urgenda case is the multilayered legal system that the Dutch legal system in effect has become, we cannot restrict ourselves to the national institutions, but we have to take the transnational institutions into account as well. The doctrine of the separation of powers is—in its core—not a division of labour between two national institutions; it is about the balance of power between all of the relevant institutions, the transnational ones included. Since the emission of GHGs has become a topic of policy-making both on a European and a global scale, and because this did not result in a substantive agreement before the climate conference in Paris, the Court may have felt itself justified to step in. This might be considered to constitute a validation of the doctrine of the separation of powers, rather than a violation.37 In other words, the doctrine of the separation of powers is not an argument against the Urgenda ruling; it is an argument in favour of it. Taking into account the transnational dimension turns the whole argument upside down. The question whether a civil court is legitimized to intervene in this case is a complex one, encompassing many different aspects, such as: what have the political institutions done so far (legislative activity); whose interests are involved (third parties); what kind of interests are involved (financial, political, and environmental); who is in the best position to weigh these interests (political or judicial institutions); and what are the foreseeable (legal, social) consequences of an injunction? Again, there are two major paradigms in play. According to the traditional one, climate change is a sensitive political issue, which entails that the judiciary should show restraint. By ordering the State to adjust its climate policy, the Court has trespassed the political domain and lost sight of the limitations of its responsibility. This kind of judicial action could invoke the response: ‘The extra man on the field: Hey! Wasn’t that the umpire?’38 But there is an alternative view, as we have seen, according to which a court may step in if all political institutions fail. Where the regulation of societal problems fails, the judiciary may step in, as we have seen in many other cases (compare the civil rights for Afro-Americans in the USA). Does climate change liability not belong to this same category? Jennifer Kilinsky quotes Martin Luther King Jr in this context, claiming urgency for equal rights for US citizens in the 1960s of the last century: ‘In this unfolding conundrum of life and history there is such a thing as being too late.’39 2. The principle of consistent interpretation: maximalist or minimalist? As we have seen, the specific duty of care to prevent a dangerous temperature rise of at least two degrees Celsius rests on multiple transnational commitments as well as the open norms of national tort law. The reflex effect of the first on the last is the result of the principle of consistent interpretation, which holds that a norm of national law may not be interpreted or applied in such a manner as to result in a violation of an international commitment by the State, unless there is no other interpretation or application available. The ratio of this principle is that the State is presumed to want to comply with its international commitments (see section II.2). The question here, however, is whether this principle justifies the construction of a norm with such specificity as the Court has formulated. In other words, even if we accept this principle, does it justify the decision the Court has based on it? There seem to be two interpretations of this principle at play, which might be called a maximalist and a minimalist interpretation. The maximalist interpretation is that the principle entails a duty for a court to optimize coherence within our multilayered legal system. The minimalist interpretation, on the other hand, is that the principle entails (nothing more than) a duty for a court to avoid contradiction. Clearly, the Court has interpreted the principle in the maximalist fashion, creating coherence between the commitments the State has undertaken at the transnational stage, on the one hand, and the duty of care under national law towards its citizens, on the other. That is why it finds itself justified to hold the State responsible for the violation of a norm with such specificity as to reduce the emission of GHGs with 25 per cent in 2020 compared to 1990. If the Court would have restricted itself to the minimalist interpretation of the principle, it would have justified more alternatives for the interpretation of the State’s duty of care towards its citizens. In any case, it would not have resulted in a norm with the specificity as the one constructed. In fact, there are more than one emission pathways—that is, there are different ways to avoid a dangerous temperature rise of more than two degrees Celsius. So there appears to be a gap in the reasoning of the Court when it ordered the State to follow this specific pathway of a reduction of the emission of GHGs with 25 per cent. To my mind, the debate should be about the meaning and the extent of the principle of consistent interpretation.40 If I am right about this, it means that the civil law question of the wrongfulness of the climate policy of the State is in essence a constitutional question about the relation between the different layers of our legal system and about the role of the courts in establishing that relation. 3. The public dimension of tort law adjudication: a public life for private law? As we have seen, tort law adjudication has an inherently public dimension, phrased by some as ‘the public life of private law’.41 This public dimension is often misunderstood, especially in this context of dealing with risks for health, safety, and environment. Under the influence of law and economics—the functional paradigm referred to in section III.2—tort law adjudication is often pictured as just another system and practice for risk regulation. From this perspective, it is generally regarded as an ineffective and inefficient mechanism for dealing with societal risks. Judges are incompetent decision-makers, trials are inappropriate procedures for gathering all of the evidence, and tort law is conceptually inadequate for dealing with large-scale societal risks. The problem with this view is that it reduces tort law adjudication to just another means of regulation, next to public law regulation. Of course, tort law adjudication was never designed for this purpose, as is explained by the deontic paradigm in section III.2. Historically, tort law adjudication has been understood to ‘provide a private law forum for the airing of grievances, the declaration of norms, and the redress of wrongs’.42 Until today, it has served this purpose, even in the context of claims concerning large-scale societal issues and public interests. Of course, this is not to deny that tort law adjudication has an inherently public dimension, but it is not to be defined in terms of deterrence, risk spreading, or risk regulation. Tort law adjudication provides the institutions, the language, and the procedures to come to terms with societal problems, as far as they result in substantial harm inflicted by someone’s wrongdoing to somebody else. In litigating tort cases, civil courts enable individuals to seek redress for the harm that is inflicted upon them. In doing so, courts serve many public functions, such as the enforcement of norms, the development of new ones, the redress of wrongs, the articulation of responsibilities, the deliverance of an authoritative title to be executed, the restoration between the parties of a balance disturbed, and, possibly, the prevention of a conflict to escalate. Thus, courts not only exert public authority, they also interact with other branches of government, such as the legislator. Their functioning is part and parcel of the way a political community governs itself. As such, courts are legitimized to provide for the legal protection of citizens, even against the (political) actions of other authorities if needed. Judicial review within a system of checks and balances is another public function of tort law adjudication. It contributes to the public dimension of private (tort) law adjudication, which is far more subtle than just deterrence and risk spreading. This is not to say that the Urgenda ruling is beyond criticism or free from flaws, as we have already seen. However, it does justify the conclusion that the Urgenda ruling deserves criticism from the right perspective—that is, in the light of the many subtle public functions that tort law adjudication serves. V. Conclusions Is climate change too big to trial? What can we learn from the Urgenda ruling in this respect? Discussion of the tort law issues involved has brought to light that diverging interpretations are feasible. If we stick to the usual interpretations of the rules and doctrines involved, climate change liability is too far a cry, but if we are ready for a shift of paradigm, climate change liability comes within arm’s reach. Such a shift of paradigm presupposes, in any case, solutions for the representation of global public interests in local courts, the interface between the transnational and the national legal systems, and the fair distribution of the burdens of precaution. Switching from these tort law issues to private law’s legitimations, we found that this picture is repeated. Holding on to the usual legitimations keeps climate change liability out of sight, but, again, a broader perspective is possible. Such a perspective includes, among other things, an understanding of the public role of civil adjudication, a theory on tort law bridging the gap between the deontic and the functional paradigm, and a mixed theory on the principles of corrective and distributive justice. Finally, we have addressed the most important public law questions. Again, it has turned out that a broader interpretation of the doctrines involved—the separation of powers in a transnational context and the principle of consistent interpretation between the national and the transnational legal systems—makes climate change liability feasible. For this result, we need not distort the nature of tort law adjudication, as we know it. It is not necessary to reduce it to another mechanism for risk regulation or to an awkward branch of public law. The reason is that tort law adjudication, in many ways, transcends itself. First, as we have seen, civil litigation is not just about conflict resolution between individuals; it has an inherently public dimension. In trying to make sense of that public dimension, we must remain faithful to the nature and structure of civil adjudication, on the one hand, while leaving room for its societal functions, on the other hand. Urgenda makes us aware that we have to reconsider the public life of civil adjudication. Next, substantive tort law is not just there to right wrongs (as the deontic paradigm claims), nor is it just an instrument for societal change (as the functional paradigm holds). It seems we have to look for middle ground between both opposites here, since the one stops short in legitimizing a ruling like Urgenda, while the other justifies too much. What we need is a careful analysis of the public life of private (tort) law adjudication: what it has been, what it has become, and what we want it to be. What role is it to play in our society and what position—both constitutionally and politically—is involved for our civil courts? Finally, I think that any credible answer to these questions will need a mixed theory of corrective and distributive justice. We cannot do without the principle of corrective justice without reducing tort law adjudication into another instrument for public risk regulation—that is, without denying the very core of tort law. However, we need the principle of distributive justice as well if a fair distribution of the burdens by courts is to be within the reach of tort law adjudication. At the end of the day, Urgenda is, among many other things, about the fair distribution of the burdens of precaution, not between Urgenda and the State of the Netherlands but, rather, between the Netherlands and the rest of the world. Footnotes 1 Arthur Neslen, ‘Dutch Government Ordered to Cut Carbon Emissions in Landmark Ruling’, Guardian (London, 24 June 2015), https://www.theguardian.com/environment/2015/jun/24/dutch-government-ordered-cut-carbon-emissions-landmark-ruling (accessed 24 April 2018). 2Urgenda Foundation v State of the Netherlands, Court of the Hague, 24 June 2015, ECLI:NL:RBDH:2015:7196 (in English) or Rechtbank Den Haag, 24 June 2015, ECLI:NL:RBDH:2015:7145 (in Dutch). 3 See California v. General Motors Corporation, et al., C06-05755 MJJ (N.D. Cal. 2007), and Native Village of Kivalina v. ExxonMobil Corporation, et al., 696 F 3d 849 at 11657 (9th Cir. 2012), neither of which was decided on its merits. More important were Massachusetts et al. v. EPA et al., 549 U.S. 497 (2 April 2007), and American Electric Power Company, et al., v. Connecticut et al., 564 U.S. 410 (20 June 2011). For an overview see David Markell and J. Ruhl, ‘An Empirical Survey of Climate Change Litigation in the United States’, 40 (2010) Envtl. L. Rep., 10644, and Elena Kosolapova, ‘Liability for Climate Change-related Damage in Domestic Courts: Claims for Compensation in the USA’, in Michael Faure and Marjan Peeters (eds), Climate Change Liability (Cheltenham/Northampton, Edward Elgar Publishing. 2011), pp. 189–205. 4 See Marc Loth, ‘Climate Change Liability after All: a Dutch Landmark Case’, 21 (2016) Tilburg Law Review, Journal of International and European Law, 5. 5 Statement of the grounds of appeal of the State, www.urgenda.nl (accessed 23 August 2017), p. 29. 6 Statement of the grounds of appeal of the State (n 5) p. 150. 7 Not a question of the political nature of the issues involved, like in the Anglo-American ‘political question doctrine’. 8Report of the World Commission on Environment and Development: Our Common Future (UN, 1987; Brundtland report), p. 41. 9 The only precedent familiar to me is the case of the Supreme Court of the Philippines: Minors Oposa v. Factoran, 224 S.C.R.A. 792 (S.C. July 1993). 10 Since the political question-doctrine does not hold in Dutch law, the political nature of the questions involved is not relevant here. Of course it is relevant in the context of the position of the court, especially with regard to the political institutions (see under section IV.1). 11 See the following Dutch Supreme Court cases: HR 15 April 1994, NJ 1994, 608 (Valkenhorst), HR April 1994, NJ 1994, 704 (Agfa/Schoolderman), HR 30 January 2004, NJ 2008, 536 (KLC/Vliegers), HR 11 June 1993, AB 1994, 10 (Roosendaal-methode). 12 Statement of the grounds of appeal of the State (n 5) pp. 108–23. 13 Not just the doctrine of the separation of powers, but also this issue of the principle of consistent interpretation. 14 HR 31 March 2006, RvdW 2006/328 (Nefalit/Karamus), HR 21 December 2010, NJ 2010/251 (Fortis/Bourgonje). 15 HR 23 September 1988, ECL:NL:HR:1988:AD5713 (French salt mines). 16 David Luban, ‘Settlements and the Erosion of the Public Realm’, 83 (1995) Geo. L.J., 2619. 17 Douglas Kysar, ‘The Public Life of Private Law: Tort Law as a Risk Regulation Mechanism’, (2017) Yale Law School, Public Law Research Paper No. 607, https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=3006237 (accessed 11 October 2017). 18 Again, subject to all the restrictions already mentioned, deciding case by case, ex post facto, on the ground of the concepts and doctrines of tort law. 19 Ernest Weinrib, Corrective Justice (Oxford, Oxford University Press, 2012), p. 311. 20 For an overview of the traditional legitimations, see Walter van Gerven, Jeremy Lever, and Pierre Larouche, Cases, Materials and Text on National, Supranational and International Tort Law (Oxford, Hart Publishing, 2000). 21 See for example Peter van den Berg, Rechtvaardigheid en privaatrecht (Deventer, Gouda Quint, 2000). See also Michael Faure, ‘The Complementary Roles of Liability, Regulation and Insurance in Safety Management: Theory and Practice’, (2014) Journal of Risk Research, 689. 22 Aristotle, Nicomachean Ethics (Cambridge, Hackett Publishing, 2000), Book V, par. 2, no. 12, and par. 4 and 5. There are different versions of the Aristotelian version of corrective justice, however: compare Ernest Weinrib, Corrective Justice (Oxford, Oxford University Press, 2012) and Ernest Weinrib, The Idea of Private Law (Oxford, Oxford University Press, 2012; revised edition), with Jules Coleman, Risks and Wrongs (Oxford, Oxford University Press, 1992) and Jules Coleman, The Practice of Principle: In Defense of a Pragmatist Approach to Legal Theory (Oxford, Oxford University Press, 2001). See also Richard Wright, who compares ‘Weinrib’s explicit formalism’ with ‘Coleman’s de facto formalism’, see Richard Wright, ‘Substantive Corrective Justice’, 77 (1992) Iowa Law Review, 625. 23 Because the decision of the Court on the fair share of the Dutch State rests not just on an attempt to right wrongs committed (as justified by the principle of corrective justice), but on a notion of the distribution of the burdens of precaution between States (as justified by ideas on distributive justice). 24 The same goes for the argument of satisfaction, for reasons already mentioned. Whose suffering is recognized by this ruling, and who does penance? If everybody is a victim as well as a perpetrator of excessive GHG-emissions, then no one in particular is (see section II.1). 25 See Herman Cousy, ‘Risks and Uncertainties in the Law of Tort’, in Helmut Koziol and Barbara Steiniger (eds), Tort & Insurance Law (Wien/New York, Springer Verlag, 2008). 26 Aristotle (n 22) Book V, section 2, nr. 12, par. 4 and 5. 27 For this reason, punitive damages fall outside the scope of the principle of corrective justice. See Ernest Weinrib, Corrective Justice (Oxford, Oxford University Press, 2012), and Ernest Weinrib, The Idea of Private Law (Oxford, Oxford University Press, 2012; revised edition). See also Jules Coleman, Risks and Wrongs (Oxford, Oxford University Press, 1992), Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford, Oxford University Press, 2001). 28 William Lucy, Philosophy of Private Law (Oxford, Oxford University Press, 2007), p. 266. 29 I have developed this line of reasoning elsewhere. See Marc Loth, Rechtvaardige aansprakelijkheid; over herstel van autonomie, beginselen in het aansprakelijkheidsrecht, en de ‘maatmens benadeelde’ (Deventer, Wolters Kluwer, 2015; Preadvies VASR). 30 Lucy takes the view that corrective justice is, in this sense, ‘empty’, and that as soon as this principle has substantive consequences in tort law, they rest on considerations of distributive justice as well. See Lucy (n 28) pp. 268–326. 31 Ibid., pp. 308–13. 32 Aristotle (n 22) Book 1, par. 5; Amartya Sen, The Idea of Justice (London, Penguin, 2009) p. 225. 33 Sen (n 32); Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge, Cambridge University Press, 2009), pp. 225–53. 34 Kysar (n 17). 35 Roel Schutgens, ‘Urgenda en de trias: enkele staatsrechtelijke aantekeningen bij het geruchtmakend klimaatvonnis van de Haagse rechter’, 33 (2015) NJB, 2270. 36 HR 21 March 2003, ECLI:NL:HR2003:AE8462 (Waterpakt). 37 Marc Loth, ‘The Civil Court as Risk Regulator: The Issue of its Legitimacy’, (2018) European Journal of Risk Regulation, accepted and to be published. 38 Mary Ann Glendon, A Nation under Lawyers: How the Crisis in the Legal Profession is Transforming American Society (Cambridge, Harvard University Press, 1994), pp. 152–77. 39 Jennifer Kilinsky, ‘International Climate Change Liability: A Myth or a Reality?’, 18 (2009) Journal of Transnational Law & Policy, pp. 378–81. 40 See Roel de Lange, ‘Conforme interpretatie en rechterlijke rechtsvorming’, in Aernout Nieuwenhuis and Jan-Herman Reesetmann (eds), Met recht en rede (Amsterdam 2005; liber amicorum Joost de Reede), pp. 77–85. 41 Kysar (n 17). 42 Kysar (n 17) p. 2. © The Author(s) (2018). Published by Oxford University Press on behalf of Unidroit. All rights reserved. For permissions, please email journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Uniform Law Review/Revue De Droit Uniforme Oxford University Press

Too big to trial? Lessons from the Urgenda case

Uniform Law Review/Revue De Droit Uniforme , Volume Advance Article (2) – Apr 30, 2018

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Abstract

Abstract Is climate change too big to trial? Is tort law adjudication capable of dealing with a huge public interest like climate change? The answer to these questions is dependent on at least three different issues, namely (i) the possible interpretations of the relevant rules and concepts of tort law, (ii) the possible legitimations of tort law liability, and (iii) the public law questions involved (the constitutional position of the court included). Using the Dutch landmark case of Urgenda Foundation v State of the Netherlands, the author researches the issues involved. The conclusion is that climate change liability stretches the possibilities of tort law adjudication to the max and even beyond, depending on one’s readiness to adjust it to societal problems like climate change. I. Introduction In the spring of 2015, the District Court of The Hague issued a ruling that had a tremendous impact across the globe.1 In the case of Urgenda Foundation v State of the Netherlands, the Court issued an injunction against the Dutch government to reduce the emission of greenhouse gases (GHGs) by 25 per cent before 2020 compared to 1990, while the government policy aimed at a reduction of (not more than) 17 per cent.2 This implied a substantive effort of the government to reduce the emission of GHGs. Perhaps even more surprising than this decision—taken only six months before the United Nations (UN) Conference on Climate Change in Paris in November–December 2015—was the reasoning of the Court. After allowing standing to Urgenda as the plaintiff, the Court reasoned its way through the key concepts of tort law to motivate its decision that the State had violated its duty of care towards its citizens. In doing so, the Court used international and European obligations to construct wrongfulness under national tort law, on the one hand, and displayed all available scientific knowledge to substantiate that wrongfulness, on the other. In fact, the Court used tort law to contribute to the solution of one of the most urgent problems mankind is facing today: climate change. The question whether the Court was right in doing so entails many aspects, one of which will be dealt with in this article. The problem addressed here is the question whether tort law adjudication is a fit and proper means for dealing with a global problem like climate change. For a start, there are signs to the contrary. The Urgenda ruling was the first judicial decision acknowledging a claim for climate change liability. There had been attempts before in the USA, but they had all failed.3 Two striking differences can be observed between the Urgenda ruling and its failing predecessors. The first is that the Urgenda ruling was a case of organized citizens against the State, while, in the USA, the States and others had filed claims against polluting corporations. So here, for the first time, the State was the defendant, not the plaintiff. In addition, the plaintiffs in the Urgenda case did not claim compensation for damages but, rather, an injunction for the defendant to adjust its climate policy. Again, for the first time, the prevention of future harm was at stake, not the compensation of harm already done. Despite these differences, climate change liability seemed to be a far cry.4 The reason for this, of course, is the nature of climate change itself. Climate change is a global common problem that is neither caused by the Netherlands alone nor can be solved by the Netherlands alone. The mitigation of climate change, on the other hand, is both non-excludable (meaning it is difficult to exclude any individual or institution from the shared global benefits of emissions reduction undertaken by any local actor) and non-rival (meaning they may be enjoyed by any number of individuals or institutions at the same time, without reducing the extent of the benefit any one of them receives).5 What does this imply for a lawsuit such as the Urgenda case? My claim is that the courts in the Urgenda case—both the District Court and more recently the Appellate Court—are not just dealing with two opposing interpretative views on the facts and the law but also with two conflicting paradigms of tort law adjudication. Roughly speaking, the one claims that tort law adjudication is a fit and proper means for dealing with global common problems like climate change (the position of Urgenda, of course), while the other denies this (the State). The key question is whether climate change is too big to trial. This is not just a matter of scale since it involves different conceptions of tort law adjudication. What is at stake here is whether tort law adjudication is capable of dealing with huge public interests like climate change or whether it stops short since it essentially only addresses individual interests (or mass claims, for that matter).6 What divides both paradigms is a difference in view on at least three issues, namely (i) the possible interpretations of the relevant rules and concepts of tort law; (ii) the possible legitimations of tort law liability; and (iii) the public law questions involved (the constitutional position of the court included). In this article, I will research these issues respectively. First, I will deal with some notorious tort law issues (the issues of standing, wrongfulness, and the problem of the many hands) (section II). Next, I will turn to private law legitimations (regarding adjudication, paradigms of tort law, and the principles of justice) (section III). And, finally, I will close with the public law dimension of the issues involved (the separation of powers, the principle of consistent interpretation, and the public dimension of tort law adjudication) (section IV). My conclusion will be that climate change liability stretches the possibilities of tort law adjudication to the max and even beyond, depending on one’s readiness to adjust it to societal problems like climate change. However, I will resist the claim that it is impossible for tort law adjudication to deal with climate change (section V). Tort law adjudication is responsive enough to facilitate climate change liability, if we are prepared to reconsider some of its key doctrines. At the end of the day, it all depends on one’s views—political or otherwise—on the purpose of tort law adjudication in society at large. Furthermore, it is my conviction that this readiness is to a high extent decisive for the future of tort law adjudication. Will tort law adjudication remain what it essentially has been: a legal system and practice for the compensation of damage individuals inflict upon each other (even large numbers of individuals)? Or will it play a role in addressing public interests, even on a global scale, that transcend the realm of individual or even mass harm and restoration? The Urgenda case is a test case because, among many other reasons, it confronts us with this dilemma. II. Tort law issues Over and all, there are three main tort law issues involved in the question whether climate change is too big to trial—namely, the issues of standing, wrongfulness, and causation. I will address them respectively. 1. Standing, but for whom? The question of standing is, under Dutch law, a question of representation.7 Who is authorized to represent the interests at stake? Article 305a, book 3, of the Dutch Civil Code contains a provision for a class action of a foundation or association representing (according to its bylaws) the same interests of other persons. This provision is meant to be used for both private and public interest litigation, offering interest groups access to the court, thus creating a countervailing litigating power against powerful repeat players. As far as standing concerns, tort law adjudication is, under Dutch law, not an individual concern anymore. It allows for both class actions and public interest litigation as well as the combination of the two. In this case, however, Urgenda claimed access on the ground of Article 2 of its bylaws, which reads that its purpose is ‘to stimulate and speed up transition processes to a sustainable society, to start in the Netherlands’. For interpretative purposes, Urgenda quoted the Brundtland report that ‘sustainable development is development that meets the need of the present without compromising the ability of future generations to meet their own ends’.8 In line with the claim that sustainability has an international as well as an intergenerational dimension, the District Court allowed Urgenda standing for the representation of people abroad and (even) people yet unborn. Standing for future generations was unprecedented in Dutch law.9 For the State, this was all too vague and far-fetched. It held the position that the phrase ‘to start in the Netherlands’ implies a restriction to Dutch inhabitants. This implies that the claims of Urgenda are non-admissible in so far as they extend to foreigners and future generations (here and abroad). Therefore, the question is: is it too far-fetched to allow such an unlimited collection of people to start a tort suit? At first sight, there is indeed something awkward in this. Since climate change is caused—or at least aggravated—by the emission of GHGs, we are all involved in many ways. Individual citizens, corporations, and public bodies are both emitting GHGs as well as suffering from their consequences. So we are all wrongdoers as well as victims. Who, then, is Urgenda actually representing? Or, better, who is excluded? If I am a Dutch citizen, who is actually representing me in this trial: Urgenda, the State, or perhaps both? Am I suing myself then? These questions lead to paradoxes. A good starting point might be to recognize that if and when a foundation like Urgenda is allowed to represent a public interest like sustainability, the collection of people benefitting from it is necessarily unlimited. This is a consequence of the very nature of the problem of climate change, which is, as we have seen, both excludable and non-rivalry. The interest involved is therefore likewise common or public and, thus, indivisible. Any attempt to limit the collection of people benefitting from it will be idle. What remains is the following dilemma: either we accept the representation of a public interest like this (and stop asking paradoxical questions), or we do not (in which case they will always be bothering us because new cases of public interest litigation will arise).10 This is exactly what divides the two paradigms involved. 2. Wrongfulness, but how? The question of wrongfulness has turned into a debate on the notion of the ‘reflex effect’ of the international commitments of the State on the open norms of tort law. The reasoning of the District Court was as follows: on the one hand, the State has committed itself on many international stages to a substantive reduction of GHGs (the UN climate system, the ‘no harm’ principle of international public law, the measures and agreements of the European Union (EU), and Article 21 of the Dutch Constitution). On the other hand, under Dutch constitutional law, these commitments are not enforceable by Dutch citizens if they are not self-executing (according to Article 93 of the Dutch Constitution). It is accepted Dutch case law, however, that the State is presumed to want to comply with its international obligations. Therefore, a norm of national origin (written or unwritten) may not be interpreted or applied in such a manner as to result in an infringement of an international norm by the State, unless no other interpretation or application is available.11 This principle of consistent interpretation has the consequence that a court, in interpreting national tort law, must take into account these international and European commitments. What the Court does, in essence, is to construct the unwritten duty of care of the State towards its citizens in the light of its international commitments. This is innovative, to be sure, but so is the whole transformation of the national legal system into a multilayered one. Of course, the State strongly objected. In the appeal trial, it claimed that this reflex effect is not a sufficient ground for the interpretation or construction of an unwritten duty of care. The State’s international commitments do not only lack direct effect, so it claimed, but they are also insufficiently specified to interpret them as self-executing. What is more, that would violate the State’s discretion to the extent that it would cause a chilling effect on its future policy on the international stage.12 I doubt whether the Appellate Court will be impressed by this objection. However, the State had a point, emphasizing that the Court, in attributing such a strong impact to this reflex effect of transnational law, in fact was attibuting something like a direct effect to its norms, while they lack direct effect under the Dutch Constitution. In doing this, the Court blurred the whole distinction between international norms with and without direct effect, which was at odds with Article 93 of the Dutch Constitution. This objection, however, is no more than an indication that there is something wrong here, but it does not address the roots of this wrong. If we want to dig deeper, we have to address the question of the meaning and the extent of the principle of consistent interpretation. On the one hand, it seems unlikely that this principle justifies such a strong reflex effect as the Court presupposed since that would blur the constitutional distinction between norms with and without direct effect (Article 93 of the Constitution). On the other hand, we cannot leave it at that since that would prevent any interaction between the transnational and the national legal systems. The different legal systems in play have to be distinguished, but they cannot be separated. What then does the principle of consistent interpretation really entail? Since this is a public law question, I will address it in section IV.2. For now, we may conclude that there seems to be more constitutional law in this case than even the State imagined.13 3. Many hands, and now? Another key issue is the problem of the many hands: global warming is caused by many actors and can only be solved in a joint effort. The State pleaded that the contribution of the Netherlands in the worldwide emission of GHGs is no more than ‘a drop in the ocean’ (in 2014, no more than 0.35 per cent of the global emission). In fact, a reduction of the emission of GHGs with 25 per cent as ordered by the Court would reduce the average global warming by approximately 0.000.045 degrees Celsius. Besides, a reduction of the emission of GHGs by the Netherlands will most probably result in more emissions from other European countries (because of internal agreements, the so-called ‘waterbed effect’), the movement of large polluters to continents with less strict requirements (‘carbon leakage’), and a disturbance of the level playing field for Dutch corporations. In legal language, this amounts to the State’s defence that the ‘but for test’ of causation fails; the Dutch share in the worldwide emission of GHGs is simply too small to matter. For the same reason, proportional liability is excluded since, according to established case law, proportional liability requires that the contribution of the tortfeasor is not too small (or too big).14 The State claimed that the Court, in appealing to the precedent of the French salt mines in which they were held liable for their share in the total amount of salt dumped in the river Rhine (which was about 20 per cent), had misunderstood the ratio decidendi of that case.15 The French salt mines did contribute with a substantive share in the total amount of salt, while the State hardly contributes to the worldwide emission of GHGs. However, the problems appear to run deeper. In the first place, the analogy with the case of the French salt mines indeed fails, but for a different reason. That case was about the compensation for damages and the possibility of a proportional share in the total amount of damages. The Urgenda case, however, is not about the compensation for damages but, rather, about an injunction to adjust the Dutch share in the worldwide emission of GHGs. Proportional liability for future damage seems far less evident than for damages that have already occurred. The reason is that the burden of prevention may take many unexpected twists and turns; it may be compensated, renegotiated, redistributed, replaced, and even disappear completely (if others do more than their fair share). This is what the whole debate on the waterbed effect, the carbon leakage, and the negotiations for the Paris Agreement is all about. Nothing is certain if we discuss the future. However, it would be quite unsatisfactory if this would exempt the State from its share in the global emission of GHGs (however small) since it applies to every country in the game (the big fishes included). At the end of the day, every contributor would be exempted, and no one would be accountable for the dangerous temperature rise of two degrees Celsius or more that would result. So here is our dilemma: either we stick to our usual concepts and doctrines (and every player in the game will escape responsibility), or we will indeed turn to some form of proportional liability (and we will have to reconsider our concepts and doctrines as a result). A starting point could be the observation that the problem of the many hands is in essence an issue of the fair distribution of the burdens of prevention and not just a factual matter of each one’s relative share in the worldwide emission of GHGs. The Court stretched the notion of proportional liability beyond its interpretation in Dutch law, for the only reason that proportionality seems an adequate standard for a fair distribution to start with. Of course, other considerations may enter the debate, such as the historical development of the relative contributions. Third World countries have a backlog, but, unfortunately, they are catching up swiftly. In the context of an international treaty, this is a key issue, but, for a court, it is too fine-grained. So, in the end, the Court was perhaps not that wrong in embracing proportionality, not as a test for causation or liability under Dutch law but, rather, as a standard for a fair distribution of the burdens of prevention of future harm. 4. Summary Summarizing the tort law issues, we have found that climate change seems to be too big to trial in tort law only if we stick to the usual interpretations of the available concepts, rules, and doctrines. If we keep on asking who is represented by whom, standing remains an issue. If we keep on drawing sharp distinctions between the legal systems in play, we fail to provide for a concise normative framework. And as long as we hold on to our view that the problem of the many hands is a question of causation, we will not succeed in solving that problem. In dealing with climate change, tort law needs nothing less than a shift of paradigm. In any case, tort law adjudication must learn how to deal with the representation of global public interests, the interface between the transnational and the national legal systems, and the fair distribution of the burdens of precautionary measures. This brings us to the issue of the possible legitimations of tort law liability for global warming. III. Private law legitimations The question whether climate change is too big to trial has led us to some tort law issues, all concerning the ‘how’ of the applicable law. Now we turn to the legitimations, all concerning the ‘why’ of these applications. Again, there are diverging paradigms to be distinguished, and, again, there are three issues involved—namely, the different conceptions of civil adjudication (procedural law), of private (tort) law (substantive law), and of justice (the principles on the background). 1. Civil adjudication: litigation or more? As far as civil adjudication is involved, there are two paradigms to be distinguished, which have been named the ‘problem-solving conception’ and the ‘public life conception’ of civil adjudication respectively.16 In the problem-solving conception, the civil court is just there to litigate between opposing parties, roughly in the same manner an arbitration committee would do the job. This perspective on civil adjudication is dominant in neo-liberal policy-making, comparing adjudication with other mechanisms for conflict resolution. In the public life conception, however, civil adjudication is claimed to have added value for society beyond the litigation of this specific conflict. In litigating conflicts, civil courts enforce established norms, develop new ones, offer legal protection, review public policies, and, thus, maintain the rule of law. Civil adjudication therefore has an inherently public dimension, which is lacking in the problem-solving conception.17 In fact, civil adjudication is part of the way a political community governs itself and, thus, part of the political decision-making process (where ‘political’ is used in the broad sense of self-governance). Of course, there are different responsibilities here. The grand design of society and the formation of policy belong to the political domain, but the review and even the correction of policy in the light of established rights and interests is a judicial responsibility.18 The legitimation of the Urgenda ruling is to be found in this public life conception of civil adjudication. In this case, the Court was not just litigating between opposing private parties, as the State would have wanted it. First, the Court clearly offered legal protection to citizens against a government that infringed their right to be protected against a dangerous temperature rise occuring. As such, the Court placed itself in a position to review the government’s policy on the emission of GHGs. Civil adjudication is there, among many other things, to serve legal protection. Next, the Court was clearly conscious of its role in the process of law development. The Urgenda ruling displays the construction of a new norm on the ground of international obligations and EU regulation and their reflex effect on the open norms of national tort law. Finally, the Court took a stand towards the risks and dangers of climate change as one of the major challenges society is facing today. Again, this exceeds the usual purpose of private law litigation considerably and can only be legitimized in a framework that takes the public role of civil adjudication seriously. The Court therefore appears to be embracing the public life conception of civil adjudication. 2. Civil (tort) law: deontic, functional, or something else? The nature of civil law in general—and tort law in particular—is in dispute as well. Roughly speaking, we can (again) distinguish two paradigms. The so-called ‘deontic paradigm’ rests on the conviction that private law is a system and a practice in its own right. Private law is a unique combination of its conceptual structure, the private relations regulated, and the way they are regulated by rules and principles.19 To understand its sui generis character, we have to research its key concepts like contract and tort in terms of the mutual rights and obligations of the parties involved in the light of the notion of corrective justice (compare section III.3). The traditional purpose of tort law is the compensation of harm done and perhaps an element of satisfaction of the victim.20 This deontic paradigm is challenged by the ‘functional paradigm’ that takes private law to be part of its social context and the role or function it plays in that context. Law and economics, for example, sees private law as a system and a practice to enhance social welfare and to reduce social costs. Private law is therefore not an end in itself; it is an instrument to achieve some pre-established end like the reduction of the costs of accidents. From this perspective, tort law serves some societal purpose, like deterrence or risk regulation.21 Its study is not just doctrinal in nature but also requires empirical research, as in other social sciences. Neither of these paradigms legitimizes the Urgenda ruling since the one stops short, while the other justifies too much. Let us start with the deontic paradigm. From this perspective, the liability of the State cannot be justified by any compensatory scheme within the framework of the principle of corrective justice.22 The Court ruled that the State cannot escape liability by appealing to its small share in the global emission of GHGs (the problem of the many hands). It argued that the State’s fair share is substantiated by the commitments the Netherlands has undertaken on the transnational stage, on the one hand, and the relatively high proportion of emissions per capita of the Dutch population, on the other. Whatever the merits of these standards, they are applications of the principle of distributive justice and a far cry from the regular patterns of legitimation of tort liability that stick to the principle of corrective justice.23 Therefore, the traditional pattern within the deontic paradigm of tort law stops short.24 The functional paradigm, on the other hand, justifies too much. From this perspective, the Urgenda ruling is just another mechanism for deterrence or risk regulation. But there is something wrong with this argument. Although tort law adjudication may have implicit consequences for risk regulation, it was never designed for that purpose, while, on the other hand, risk regulation might be better served by other means (like public law).25 The functional approach simply justifies too much, while the deontic approach stops short. It seems we need a third position that covers the middle ground between the deontic and the functional paradigms. We will come back to this issue in sections III.3 and IV.3. 3. The principles of justice: separate or mixed? We already touched upon the principles of corrective and distributive justice, which have deep roots.26 Both principles apply in a situation where justice and equality are at stake. What is common between both principles is that they both tie people together according to a notion of equality. Unjust is the situation in which one person has too much or too little in relation to somebody else. Each principle construes equality differently, however: corrective justice construes equality as the restoration of an equilibrium that existed before an infringement, while distributive justice construes equality as the equal distribution of goods or burdens according to a standard of proportionality. The principle of corrective justice requires restoration if a wrongful action of somebody harms someone else. What the wrongdoer has done and what the victim has suffered, are the active and the passive side of the same injustice. For that reason, the principle of corrective justice requires equivalence between the harm inflicted and the restoration to be executed. Corrective justice is therefore not just the ground of liability, but it also specifies its limits.27 The principle of distributive justice, on the other hand, requires a fair distribution of goods or burdens between the members of a community. In particular, it requires a distribution according to a fair and objective standard of equality. For that reason, it applies particularly in larger communities and not in bilateral relations. The principles of corrective and distributive justice are traditionally reserved for different domains of law. According to the deontic paradigm—the most traditional view—private law is the exclusive domain of corrective justice, while distributive justice applies exclusively in public law. This implies that, in private law, considerations of a fair distribution are simply not allowed. The problem with this view, however, is that this does not fit the practice of private law. In some legal systems (for example, the Dutch one), it is left to the discretion of the court to mitigate the amount of damages on the grounds of the relative wealth of the parties involved (Article 109, book 6, of the Civil Code). The court is therefore authorized to take consideration of distributive justice. The Urgenda case provides another example in which the Court relies not only on considerations of corrective justice but also on reasons of distributive justice. With regard to the proportional liability of the State, it appealed to the Annex I status of the Netherlands in the 1992 UN Framework Convention on Climate Change and the fact that the emission per capita is relatively high. As we have already mentioned, these are applications of the principle of distributive justice (see section III.2), here not applied in the relation between individuals but, rather, in the relations between States. This illustrates that the principle of distributive justice is an active principle in tort law adjudication, whether we like it or not. What is more, the Urgenda case illustrates that considerations of distributive justice behave like a cuckold in the nest; once we let them in, they tend to squeeze out other considerations. As we have seen, the deontic paradigm of private law with its exclusive role for corrective justice justifies too little, while the functional paradigm that allows for distributive justice justifies too much. As we have noted, we need an intermediate position that provides for an acceptable mix of the principles of corrective and distributive justice.28 Although this is a rather complicated philosophical debate, I want to suggest a starting point.29 The deontic paradigm is correct in pointing out that the principle of corrective justice justifies liability in tort law, both in the procedural sense that it ties the wrongdoer and the victim together in a bilateral legal relationship as well in the substantive sense that it justifies a right to compensation with a corresponding duty. But that is not the end of the story. The principle of distributive justice does play a role in tort law; in fact, it plays a double role. First, the debate on distributive justice helps in specifying the substance of corrective justice. The principle of corrective justice requires restoration, but it does not answer the obvious question: restoration of what?30 We usually take it for granted that the victim needs to be restored in his or her financial position because we take it for granted that compensation is about the transfer of money. This is not evident, however, if we take non-compensatory damages into account.31 Besides, money is not an end in itself—as both Aristotle and Amartya Sen have emphasized32—it is a means to an end, for example, a better quality of life. From the debate about distributive justice, we may learn that it is not wealth, but capabilities, that constitute the substance of justice.33 The other role played by the principle of distributive justice is that, although it does not provide for the ground of liability in tort law, it may provide for reasons for its limitation. In limiting the wrongdoer’s duty to compensate the victim’s damage, all kinds of distributive considerations may—and in fact do—play a justifying role in a court’s reasoning. 4. Summary Summarizing the private law’s legitimations, we have found that climate change is too big to trial only if we hold on to our usual legitimation patterns. If tort law adjudication is only about litigation (and nothing more), if tort law is just a system and practice in its own right (serving no other purpose), and if corrective justice is the only justifying principle (leaving distributive justice to public law), then tort law adjudication has no business with climate change liability. However, if we are willing to take a broader perspective, we might see more opportunities. This broader perspective includes, among many other things, a public life conception of civil adjudication, an intermediate position between a deontic and a functional paradigm on tort law, and a mixed theory on the principles of corrective and distributive justice. From this perspective, a civil court has a responsibility for the maintenance of tort law, tort law has a societal purpose outside itself, and the principles of corrective and distributive justice can only in combination bring justice to society. In other words, private tort law adjudication has a public function, which is phrased by some as ‘the public life of private law’.34 IV. Reflections on public law Finally, we have some public law questions to address. We have seen that both some of the tort law issues and some of the private law legitimations refer to public law. First, the principal defence of the State is that the debate on climate change belongs in Parliament and not in a court of law (the appeal to the separation of powers). Next, there is the still the question regarding the meaning and extent of the principle of consistent interpretation (see section II.2). Does it justify such a specific instruction as to reduce the emission of GHGs by 25 per cent in 2020 in comparison with 1990? Finally, we elaborate on the public dimension of tort law adjudication. 1. The separation of powers: judicial trespass or not? The principal defence of the State was that an injunction like the Court had issued constituted a violation of the doctrine of the separation of powers (‘trias politica’). The central idea, of course, was that this doctrine specifies a certain division of labour between politics and the judiciary and that the Court in the Urgenda ruling trespassed on the political domain.35 The Court reviewed such a highly sensitive topic for governmental policy as the emission of GHGs and even gave an injunction to the government to adapt its democratically established policy. In doing this, the Court made decisions that are essentially of a political nature and, therefore, ought to be taken by the legislator or the government but, in any case, not by the judiciary. The Court, however, explicitly rejected this defence in an exceptional reflection on its own constitutional position. In short, it recognized its subordinate position with regard to the regulation of principal societal issues, while, at the same time, stressing its judicial responsibility to offer legal protection when asked, even if the defendant is the State. This system of legal protection is guaranteed by law and, therefore, democratically legitimized. Urgenda’s claims did not reach outside the judicial domain since they did not ask for an order to legislate (which is prohibited under Dutch case law).36 Furthermore, the requested injunction may be executed by different means, which is left to the discretion of the State. For these reasons, the Court saw no violation of any constitutional principle or rule if it ordered the State to adjust its climate policy. Although this is a subtle enough reasoning, it clearly did not convince the State. In the appeal trial, it elaborated on this defence by reminding the Appeal Court that in the meantime a draft law on the emission of GHGs had been proposed, that the Court in first instance seemed to have forgotten that the interests of third parties were involved (like electricity companies), that the Court had neglected that this all required a balance of the financial, political, and environmental interests involved, and that the Court’s injunction entailed de facto an order to legislate (which is not allowed) since the State cannot comply without additional legislation. What strikes me in the arguments of the State, however, is that they focused on the relation between the national legislator and the national judiciary, while ignoring that the transnational dimension of this case is relevant for the doctrine of the separation of powers as well. If we take into account that the stage for the Urgenda case is the multilayered legal system that the Dutch legal system in effect has become, we cannot restrict ourselves to the national institutions, but we have to take the transnational institutions into account as well. The doctrine of the separation of powers is—in its core—not a division of labour between two national institutions; it is about the balance of power between all of the relevant institutions, the transnational ones included. Since the emission of GHGs has become a topic of policy-making both on a European and a global scale, and because this did not result in a substantive agreement before the climate conference in Paris, the Court may have felt itself justified to step in. This might be considered to constitute a validation of the doctrine of the separation of powers, rather than a violation.37 In other words, the doctrine of the separation of powers is not an argument against the Urgenda ruling; it is an argument in favour of it. Taking into account the transnational dimension turns the whole argument upside down. The question whether a civil court is legitimized to intervene in this case is a complex one, encompassing many different aspects, such as: what have the political institutions done so far (legislative activity); whose interests are involved (third parties); what kind of interests are involved (financial, political, and environmental); who is in the best position to weigh these interests (political or judicial institutions); and what are the foreseeable (legal, social) consequences of an injunction? Again, there are two major paradigms in play. According to the traditional one, climate change is a sensitive political issue, which entails that the judiciary should show restraint. By ordering the State to adjust its climate policy, the Court has trespassed the political domain and lost sight of the limitations of its responsibility. This kind of judicial action could invoke the response: ‘The extra man on the field: Hey! Wasn’t that the umpire?’38 But there is an alternative view, as we have seen, according to which a court may step in if all political institutions fail. Where the regulation of societal problems fails, the judiciary may step in, as we have seen in many other cases (compare the civil rights for Afro-Americans in the USA). Does climate change liability not belong to this same category? Jennifer Kilinsky quotes Martin Luther King Jr in this context, claiming urgency for equal rights for US citizens in the 1960s of the last century: ‘In this unfolding conundrum of life and history there is such a thing as being too late.’39 2. The principle of consistent interpretation: maximalist or minimalist? As we have seen, the specific duty of care to prevent a dangerous temperature rise of at least two degrees Celsius rests on multiple transnational commitments as well as the open norms of national tort law. The reflex effect of the first on the last is the result of the principle of consistent interpretation, which holds that a norm of national law may not be interpreted or applied in such a manner as to result in a violation of an international commitment by the State, unless there is no other interpretation or application available. The ratio of this principle is that the State is presumed to want to comply with its international commitments (see section II.2). The question here, however, is whether this principle justifies the construction of a norm with such specificity as the Court has formulated. In other words, even if we accept this principle, does it justify the decision the Court has based on it? There seem to be two interpretations of this principle at play, which might be called a maximalist and a minimalist interpretation. The maximalist interpretation is that the principle entails a duty for a court to optimize coherence within our multilayered legal system. The minimalist interpretation, on the other hand, is that the principle entails (nothing more than) a duty for a court to avoid contradiction. Clearly, the Court has interpreted the principle in the maximalist fashion, creating coherence between the commitments the State has undertaken at the transnational stage, on the one hand, and the duty of care under national law towards its citizens, on the other. That is why it finds itself justified to hold the State responsible for the violation of a norm with such specificity as to reduce the emission of GHGs with 25 per cent in 2020 compared to 1990. If the Court would have restricted itself to the minimalist interpretation of the principle, it would have justified more alternatives for the interpretation of the State’s duty of care towards its citizens. In any case, it would not have resulted in a norm with the specificity as the one constructed. In fact, there are more than one emission pathways—that is, there are different ways to avoid a dangerous temperature rise of more than two degrees Celsius. So there appears to be a gap in the reasoning of the Court when it ordered the State to follow this specific pathway of a reduction of the emission of GHGs with 25 per cent. To my mind, the debate should be about the meaning and the extent of the principle of consistent interpretation.40 If I am right about this, it means that the civil law question of the wrongfulness of the climate policy of the State is in essence a constitutional question about the relation between the different layers of our legal system and about the role of the courts in establishing that relation. 3. The public dimension of tort law adjudication: a public life for private law? As we have seen, tort law adjudication has an inherently public dimension, phrased by some as ‘the public life of private law’.41 This public dimension is often misunderstood, especially in this context of dealing with risks for health, safety, and environment. Under the influence of law and economics—the functional paradigm referred to in section III.2—tort law adjudication is often pictured as just another system and practice for risk regulation. From this perspective, it is generally regarded as an ineffective and inefficient mechanism for dealing with societal risks. Judges are incompetent decision-makers, trials are inappropriate procedures for gathering all of the evidence, and tort law is conceptually inadequate for dealing with large-scale societal risks. The problem with this view is that it reduces tort law adjudication to just another means of regulation, next to public law regulation. Of course, tort law adjudication was never designed for this purpose, as is explained by the deontic paradigm in section III.2. Historically, tort law adjudication has been understood to ‘provide a private law forum for the airing of grievances, the declaration of norms, and the redress of wrongs’.42 Until today, it has served this purpose, even in the context of claims concerning large-scale societal issues and public interests. Of course, this is not to deny that tort law adjudication has an inherently public dimension, but it is not to be defined in terms of deterrence, risk spreading, or risk regulation. Tort law adjudication provides the institutions, the language, and the procedures to come to terms with societal problems, as far as they result in substantial harm inflicted by someone’s wrongdoing to somebody else. In litigating tort cases, civil courts enable individuals to seek redress for the harm that is inflicted upon them. In doing so, courts serve many public functions, such as the enforcement of norms, the development of new ones, the redress of wrongs, the articulation of responsibilities, the deliverance of an authoritative title to be executed, the restoration between the parties of a balance disturbed, and, possibly, the prevention of a conflict to escalate. Thus, courts not only exert public authority, they also interact with other branches of government, such as the legislator. Their functioning is part and parcel of the way a political community governs itself. As such, courts are legitimized to provide for the legal protection of citizens, even against the (political) actions of other authorities if needed. Judicial review within a system of checks and balances is another public function of tort law adjudication. It contributes to the public dimension of private (tort) law adjudication, which is far more subtle than just deterrence and risk spreading. This is not to say that the Urgenda ruling is beyond criticism or free from flaws, as we have already seen. However, it does justify the conclusion that the Urgenda ruling deserves criticism from the right perspective—that is, in the light of the many subtle public functions that tort law adjudication serves. V. Conclusions Is climate change too big to trial? What can we learn from the Urgenda ruling in this respect? Discussion of the tort law issues involved has brought to light that diverging interpretations are feasible. If we stick to the usual interpretations of the rules and doctrines involved, climate change liability is too far a cry, but if we are ready for a shift of paradigm, climate change liability comes within arm’s reach. Such a shift of paradigm presupposes, in any case, solutions for the representation of global public interests in local courts, the interface between the transnational and the national legal systems, and the fair distribution of the burdens of precaution. Switching from these tort law issues to private law’s legitimations, we found that this picture is repeated. Holding on to the usual legitimations keeps climate change liability out of sight, but, again, a broader perspective is possible. Such a perspective includes, among other things, an understanding of the public role of civil adjudication, a theory on tort law bridging the gap between the deontic and the functional paradigm, and a mixed theory on the principles of corrective and distributive justice. Finally, we have addressed the most important public law questions. Again, it has turned out that a broader interpretation of the doctrines involved—the separation of powers in a transnational context and the principle of consistent interpretation between the national and the transnational legal systems—makes climate change liability feasible. For this result, we need not distort the nature of tort law adjudication, as we know it. It is not necessary to reduce it to another mechanism for risk regulation or to an awkward branch of public law. The reason is that tort law adjudication, in many ways, transcends itself. First, as we have seen, civil litigation is not just about conflict resolution between individuals; it has an inherently public dimension. In trying to make sense of that public dimension, we must remain faithful to the nature and structure of civil adjudication, on the one hand, while leaving room for its societal functions, on the other hand. Urgenda makes us aware that we have to reconsider the public life of civil adjudication. Next, substantive tort law is not just there to right wrongs (as the deontic paradigm claims), nor is it just an instrument for societal change (as the functional paradigm holds). It seems we have to look for middle ground between both opposites here, since the one stops short in legitimizing a ruling like Urgenda, while the other justifies too much. What we need is a careful analysis of the public life of private (tort) law adjudication: what it has been, what it has become, and what we want it to be. What role is it to play in our society and what position—both constitutionally and politically—is involved for our civil courts? Finally, I think that any credible answer to these questions will need a mixed theory of corrective and distributive justice. We cannot do without the principle of corrective justice without reducing tort law adjudication into another instrument for public risk regulation—that is, without denying the very core of tort law. However, we need the principle of distributive justice as well if a fair distribution of the burdens by courts is to be within the reach of tort law adjudication. At the end of the day, Urgenda is, among many other things, about the fair distribution of the burdens of precaution, not between Urgenda and the State of the Netherlands but, rather, between the Netherlands and the rest of the world. Footnotes 1 Arthur Neslen, ‘Dutch Government Ordered to Cut Carbon Emissions in Landmark Ruling’, Guardian (London, 24 June 2015), https://www.theguardian.com/environment/2015/jun/24/dutch-government-ordered-cut-carbon-emissions-landmark-ruling (accessed 24 April 2018). 2Urgenda Foundation v State of the Netherlands, Court of the Hague, 24 June 2015, ECLI:NL:RBDH:2015:7196 (in English) or Rechtbank Den Haag, 24 June 2015, ECLI:NL:RBDH:2015:7145 (in Dutch). 3 See California v. General Motors Corporation, et al., C06-05755 MJJ (N.D. Cal. 2007), and Native Village of Kivalina v. ExxonMobil Corporation, et al., 696 F 3d 849 at 11657 (9th Cir. 2012), neither of which was decided on its merits. More important were Massachusetts et al. v. EPA et al., 549 U.S. 497 (2 April 2007), and American Electric Power Company, et al., v. Connecticut et al., 564 U.S. 410 (20 June 2011). For an overview see David Markell and J. Ruhl, ‘An Empirical Survey of Climate Change Litigation in the United States’, 40 (2010) Envtl. L. Rep., 10644, and Elena Kosolapova, ‘Liability for Climate Change-related Damage in Domestic Courts: Claims for Compensation in the USA’, in Michael Faure and Marjan Peeters (eds), Climate Change Liability (Cheltenham/Northampton, Edward Elgar Publishing. 2011), pp. 189–205. 4 See Marc Loth, ‘Climate Change Liability after All: a Dutch Landmark Case’, 21 (2016) Tilburg Law Review, Journal of International and European Law, 5. 5 Statement of the grounds of appeal of the State, www.urgenda.nl (accessed 23 August 2017), p. 29. 6 Statement of the grounds of appeal of the State (n 5) p. 150. 7 Not a question of the political nature of the issues involved, like in the Anglo-American ‘political question doctrine’. 8Report of the World Commission on Environment and Development: Our Common Future (UN, 1987; Brundtland report), p. 41. 9 The only precedent familiar to me is the case of the Supreme Court of the Philippines: Minors Oposa v. Factoran, 224 S.C.R.A. 792 (S.C. July 1993). 10 Since the political question-doctrine does not hold in Dutch law, the political nature of the questions involved is not relevant here. Of course it is relevant in the context of the position of the court, especially with regard to the political institutions (see under section IV.1). 11 See the following Dutch Supreme Court cases: HR 15 April 1994, NJ 1994, 608 (Valkenhorst), HR April 1994, NJ 1994, 704 (Agfa/Schoolderman), HR 30 January 2004, NJ 2008, 536 (KLC/Vliegers), HR 11 June 1993, AB 1994, 10 (Roosendaal-methode). 12 Statement of the grounds of appeal of the State (n 5) pp. 108–23. 13 Not just the doctrine of the separation of powers, but also this issue of the principle of consistent interpretation. 14 HR 31 March 2006, RvdW 2006/328 (Nefalit/Karamus), HR 21 December 2010, NJ 2010/251 (Fortis/Bourgonje). 15 HR 23 September 1988, ECL:NL:HR:1988:AD5713 (French salt mines). 16 David Luban, ‘Settlements and the Erosion of the Public Realm’, 83 (1995) Geo. L.J., 2619. 17 Douglas Kysar, ‘The Public Life of Private Law: Tort Law as a Risk Regulation Mechanism’, (2017) Yale Law School, Public Law Research Paper No. 607, https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=3006237 (accessed 11 October 2017). 18 Again, subject to all the restrictions already mentioned, deciding case by case, ex post facto, on the ground of the concepts and doctrines of tort law. 19 Ernest Weinrib, Corrective Justice (Oxford, Oxford University Press, 2012), p. 311. 20 For an overview of the traditional legitimations, see Walter van Gerven, Jeremy Lever, and Pierre Larouche, Cases, Materials and Text on National, Supranational and International Tort Law (Oxford, Hart Publishing, 2000). 21 See for example Peter van den Berg, Rechtvaardigheid en privaatrecht (Deventer, Gouda Quint, 2000). See also Michael Faure, ‘The Complementary Roles of Liability, Regulation and Insurance in Safety Management: Theory and Practice’, (2014) Journal of Risk Research, 689. 22 Aristotle, Nicomachean Ethics (Cambridge, Hackett Publishing, 2000), Book V, par. 2, no. 12, and par. 4 and 5. There are different versions of the Aristotelian version of corrective justice, however: compare Ernest Weinrib, Corrective Justice (Oxford, Oxford University Press, 2012) and Ernest Weinrib, The Idea of Private Law (Oxford, Oxford University Press, 2012; revised edition), with Jules Coleman, Risks and Wrongs (Oxford, Oxford University Press, 1992) and Jules Coleman, The Practice of Principle: In Defense of a Pragmatist Approach to Legal Theory (Oxford, Oxford University Press, 2001). See also Richard Wright, who compares ‘Weinrib’s explicit formalism’ with ‘Coleman’s de facto formalism’, see Richard Wright, ‘Substantive Corrective Justice’, 77 (1992) Iowa Law Review, 625. 23 Because the decision of the Court on the fair share of the Dutch State rests not just on an attempt to right wrongs committed (as justified by the principle of corrective justice), but on a notion of the distribution of the burdens of precaution between States (as justified by ideas on distributive justice). 24 The same goes for the argument of satisfaction, for reasons already mentioned. Whose suffering is recognized by this ruling, and who does penance? If everybody is a victim as well as a perpetrator of excessive GHG-emissions, then no one in particular is (see section II.1). 25 See Herman Cousy, ‘Risks and Uncertainties in the Law of Tort’, in Helmut Koziol and Barbara Steiniger (eds), Tort & Insurance Law (Wien/New York, Springer Verlag, 2008). 26 Aristotle (n 22) Book V, section 2, nr. 12, par. 4 and 5. 27 For this reason, punitive damages fall outside the scope of the principle of corrective justice. See Ernest Weinrib, Corrective Justice (Oxford, Oxford University Press, 2012), and Ernest Weinrib, The Idea of Private Law (Oxford, Oxford University Press, 2012; revised edition). See also Jules Coleman, Risks and Wrongs (Oxford, Oxford University Press, 1992), Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (Oxford, Oxford University Press, 2001). 28 William Lucy, Philosophy of Private Law (Oxford, Oxford University Press, 2007), p. 266. 29 I have developed this line of reasoning elsewhere. See Marc Loth, Rechtvaardige aansprakelijkheid; over herstel van autonomie, beginselen in het aansprakelijkheidsrecht, en de ‘maatmens benadeelde’ (Deventer, Wolters Kluwer, 2015; Preadvies VASR). 30 Lucy takes the view that corrective justice is, in this sense, ‘empty’, and that as soon as this principle has substantive consequences in tort law, they rest on considerations of distributive justice as well. See Lucy (n 28) pp. 268–326. 31 Ibid., pp. 308–13. 32 Aristotle (n 22) Book 1, par. 5; Amartya Sen, The Idea of Justice (London, Penguin, 2009) p. 225. 33 Sen (n 32); Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge, Cambridge University Press, 2009), pp. 225–53. 34 Kysar (n 17). 35 Roel Schutgens, ‘Urgenda en de trias: enkele staatsrechtelijke aantekeningen bij het geruchtmakend klimaatvonnis van de Haagse rechter’, 33 (2015) NJB, 2270. 36 HR 21 March 2003, ECLI:NL:HR2003:AE8462 (Waterpakt). 37 Marc Loth, ‘The Civil Court as Risk Regulator: The Issue of its Legitimacy’, (2018) European Journal of Risk Regulation, accepted and to be published. 38 Mary Ann Glendon, A Nation under Lawyers: How the Crisis in the Legal Profession is Transforming American Society (Cambridge, Harvard University Press, 1994), pp. 152–77. 39 Jennifer Kilinsky, ‘International Climate Change Liability: A Myth or a Reality?’, 18 (2009) Journal of Transnational Law & Policy, pp. 378–81. 40 See Roel de Lange, ‘Conforme interpretatie en rechterlijke rechtsvorming’, in Aernout Nieuwenhuis and Jan-Herman Reesetmann (eds), Met recht en rede (Amsterdam 2005; liber amicorum Joost de Reede), pp. 77–85. 41 Kysar (n 17). 42 Kysar (n 17) p. 2. © The Author(s) (2018). Published by Oxford University Press on behalf of Unidroit. All rights reserved. For permissions, please email journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Uniform Law Review/Revue De Droit UniformeOxford University Press

Published: Apr 30, 2018

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