Should Courts Decide Climate Policies?: A Critical Perspective on Climate Litigation in Light of the Urgenda Verdict

In State of the Netherlands v. Urgenda Foundation (the Urgenda verdict), the Dutch Supreme Court ordered the Dutch Government to pursue a goal of a 25 % rather than a 20 % decrease in CO2 emissions. The present article discusses the verdict and climate litigation of this kind more generally from a functional perspective rather than from the perspective of democratic legitimacy. It argues that the premises of the Court were inapplicable from an economic perspective and that the faulty reasoning is indicative of reasons why judicial restraint is socially desirable in the area of climate policies. From the viewpoint of social welfare, it may be desirable that a court overrides climate policy if the policy neglects the interests of future generations, i.e. if it is unsustainable. However, the Court did not consult the economic literature on sustainable climate policies. It relied on a consensus among climate scientists, on the European Convention of Human Rights, and on the precautionary principle. We argue that if the Court had consulted the economic literature, it would have found disagreement about how quickly emissions should be lowered, and it would have had to address many complex sources of disagreement that cannot be eliminated by recourse to human rights or the precautionary principle. The Court would have had to subjectively assess different economic theories. However, the litigation process is not set up for and judges are not trained for this complex assessment.