Holland is naturally sensitive to climate change as slices of the country will return to the sea in a two-degree-plus world. Friends of the Earth have chosen the coastal Wadden region to push their legal action, as it is most clearly under existential threat.
But the ruling confuses separate issues in a Jesuitical and irritating way. It says the temperature in the Netherlands has jumped 1.7 degrees from pre-industrial levels, double the global average. It’s a startling factoid, but to suggest that people are at serious risk from heatstroke in this windy and humid coastal outpost in such large numbers is no big deal. What matters to the inhabitants of the Wadden is the sea level, determined by the melting ice in Greenland and Antarctica.
Normative politics of this kind on the part of judges has become a bad Western habit – indeed, it is rampant – and clashes with the constitutional basis of liberal democracy. It encroaches on what was previously considered to be the proper role of elected legislatures and governments.
The court invoked an “unwritten standard of care” set out in the Dutch Civil Code, from which it then derived a duty of “care”. It sounds like the Roe v Wade decision of the United States Supreme Court on abortion in 1973, justified by the discovery of an unwritten right to privacy in the “penumbras” of the Fourteenth Amendment. This act of judicial disproportion led to an evangelical reaction and a major realignment of American politics, propelling Ronald Reagan into the White House.
In addition, the Dutch court invoked the European Convention on Human Rights to defend the “right to life” of the inhabitants of the Wadden region. This is a classic case of what happens when judges on a mission militarize the rights law. Personally, I am a strong advocate of net zero (it makes society richer, accelerates economic growth, and with scale, will lower energy costs for the poor). But cowboy legalism is not the way to do it.
Most of Europe’s oil and gas companies have already made the climate pledge. They are part of the green solution, or at least they can be part of it if they are allowed to run their own business model in harmony with market forces. They have the skills in coastal projects to accelerate the global deployment of offshore wind.