A recent judgment by a Dutch court signals a trend towards the judiciary getting involved in setting climate policy. Lucas Bergkamp argues that this confuses the separation of powers, and that the EU should restore the balance. In June, the district court of The Hague found the state of The Netherlands liable under tort law for failing to adequately combat climate change. At the request of a sustainability organisation called “Urgenda,” a contraction of “urgent” and “agenda”, the court ins tructed the state to ensure that greenhouse gas emissions are reduced by at least 25% from 1990 levels by 2020, not the mere 17% for which it currently aims.

The court grounded the state’s obligation on the open concept of “social  responsibility” with respect to “danger creation.” Based on the IPCC reports, climate change has been found to be an unacceptable, unlawful danger. Causation requirements, which normally preclude claims for indivisible, diffuse damage caused by multiple parties, have been set aside by the court.

In bringing the lawsuit against the state, Urgenda was inspired by a book entitled Revolution Through Litigation. It seems that this revolution is now beginning. Climate action groups in other countries, including Belgium and the US, have launched similar lawsuits against their governments to force them to beef up their climate policies. In the view of these organisations, the judiciary is just another instrument to achieve political objectives.

These law suits raise fundamental questions about the rule of law and the separation of powers in constitutional democracies. The judiciary does not have the authority to dictate general policies in areas such as climate change. Courts are not well positioned to determine the state of the science and assess the related complexities; they are bound to be misled by “scientific necessity,” as the Dutch judgment shows. In addition, courts hear only from the parties before them, not from third parties, and have no authority or ability to weigh the various interests involved. To set climate policies, courts have to make value judgments without a sound basis or process for doing so. In short, the Revolution through Litigation turns all into politics. Logic suggests, however, that when all is politics, nothing is law