Beyond Urgenda : The role of the ECHR and judgments of the ECtHR in Dutch environmental and climate litigation

Human rights have been championed as the new frontier in environmental and climate change litigation, especially since the Dutch Urgenda case. However, little is known about whether this alleged turn to rights is really happening beyond a few high- profile judgments. This article examines how and when courts have relied on the European Convention on Human Rights (ECHR) and case law of the European Court of Human Rights (ECtHR) in environmental cases in the Netherlands since 2016. In doing so, it will show the broad potential and wide range of environmental cases in which rights are used. Rights talk is at the same time frequently overlooked or avoided by the parties and the courts, partly because the added value is limited in the light of specific national (EU- inspired) statutory provisions. To date, the actual impact of the EC(t)HR has been rather minimal beyond Urgenda , partly because of the limitations in the ECHR. This articles sketches avenues for further (empirical) research.

| 3 KROMMENDIJK jurisdiction for environmental and climate protection. 16 To capture this 'domestic rights turn', a case law database search was performed. Throughout this article, a distinction is made between explicit citations of ECtHR judgments and 'silent cases' that lack an explicit reference to the ECtHR. To find both types of cases, search terms related to the ECHR and ECtHR were used to search a platform publishing all (published) Dutch court judgments, case comments and legal journal articles in the period 2016-2020. 17 It was deliberately decided to focus on this period because -as Section 2 will show -the number of references to the EC(t)HR only really The choice was made to focus solely on substantive fundamental rights norms, including Articles 2 and 8 ECHR, as well as the right to property and the peaceful enjoyment of possessions in Article 1 of Protocol No. 1 to the ECHR. 20 In addition to feasibility, one reason to restrict the scope of this article to substantive rights is the considerable attention in the literature to procedural norms, such as the right to a fair trial in Articles 6 and 13 ECHR. The rise of procedural environmental rights or the so-called 'Aarhus-ization' has been documented extensively. 21 As a result, the following legal issues that have also played a role in the Netherlands are not discussed: the level of court fees, 22 the amount of administrative fines, 23 the number of judicial (appeal) stages, 24 the use of expert opinions, 25 the reasonable time of court proceedings 26 and the requirement of relativity. 27 This also means that this article will not address questions in the literature about the compatibility of environmental legal protection in the Netherlands and the Aarhus Convention. 28 In addition, criminal environmental cases were not considered because they involve, to date, only procedural fundamental rights questions related to due process and reasonable time. 29 This article has three objectives. The first aim is to illustrate the broad potential and wide range of environmental cases in which substantive fundamental rights are used in the Netherlands. The 'turn to rights' has not only been a turn to environmental rights, but also a turn to other fundamental rights to challenge environmental measures. The ECHR is used in different and opposing ways in environmental cases. On the one hand, Articles 2 and 8 ECHR have been used in an Urgenda way as a 'sword' in the interest of environmental protection to force the authorities to act and provide a higher level of environmental protection (Section 2.1). 30 On the other hand, the right to property (Article 1 of the First Protocol to the ECHR; '1 FP') has been used as a 'shield' to protect private interests against government measures that were partly taken to protect the environment (Section 2.3). There is also a group of in-between cases in which Articles 2 and 8 are used to prevent the construction of wind farms (Section 2.2). 31 The latter cases show that longer-term climate goals could clash with more short-term and local environmental considerations. In simplistic or cynical terms, the property cases can be described as 'anti-environmental' and not really part of a 'turn to environmental rights' or the 'greening' of existing (international) 16   human rights law. 32 It was decided deliberately to include these property cases to illustrate that the 'turn to rights' can also backfire with the opposing parties using the same vocabulary. This means that environmental and climate litigation essentially involves a conflict or tension between opposing fundamental rights that need to be balanced. A second goal is to demonstrate that the actual impact of the EC(t)HR has been rather minimal beyond Urgenda. This is partly due to limitations and the generally low level of protection in the ECHR and the case law of the ECtHR with respect to the environment (Section 3.1). A third objective of this article is to show that rights talk is frequently overlooked or avoided by the parties and the courts, partly because the added value is limited in the light of specific national (EU inspired) statutory provisions (Section 3.2). show that there has been a steady growth of shield cases over time (Section 2.3). The number of sword cases, most closely related to the Urgenda cases, also exploded since 2017 (Section 2.1). A similar, albeit slightly less dramatic picture can be sketched for the wind farm cases (Section 2.2). Figure 1 shows that, in all three types of cases, the number of environmental law judgments explicitly citing the ECtHR has overtaken the number of silent cases omitting a reference to the case law of the ECtHR. This section will, nonetheless, show that this quantitative growth is not matched by more substantive engagement with the case law of the ECtHR and/or successful 'pro-environmental' outcomes.

| The right to life and private life and home as an environmental sword
Almost half of the Dutch cases that were found (33 of the 71 cases) involve 'sword' cases in which Articles 2 and 8 ECHR, and sometimes Article 1 FP, are used to force the authorities to provide a higher level of environmental protection ( Figure 2). 33 Since 2015, the ECHR provisions have been invoked in several civil and administrative law cases related to the earthquakes in Groningen. 34 These earthquakes are the result of the extraction of natural gas in the northern province of Groningen following the discovery of the largest natural gas field in Europe in 1959. There have been more than a thousand small tremors since the 1980s, but the magnitude has increased in the last decade resulting in considerable damage to buildings. Especially the earthquake in Huizinge in 2021, with a magnitude of 3.6, led to protests demanding an end to gas production and compensation for damages. In 2017, the District Court Noord-Nederland ruled that the (partially) State-owned company NAM (Nederlandse Aardolie Maatschappij), as an operator of mining works, was liable for the damage suffered by the residents. pointed to the diversity of the sources of pollution scattered throughout the country and the fact that the present case does not concern a single specific source of pollution, such as a specific factory, but a multitude of sources of different kinds, from all over the country. 46 The applicants tried, unsuccessfully, to convince the court to apply more stringent WHO guidelines, as was done in several wind parks cases, which will be discussed in Section 2.2. 47  These livestock farming cases are an illustration of the wide margin of appreciation for authorities and the limited scope of judicial review. The last case also shows that parties are in an unequal procedural position and are confronted with standard-of-proof problems, whereby the burden of proof is basically reversed, contrary to the logic implicit in the precautionary principle. Kegge has noted that the latter phenomenon also prevails in other cases. 65 This includes a case about the construction of high-voltage pylons and the alleged exposure to magnetic fields and noise nuisance. The Council underscored the major public interests in terms of public safety and the economic welfare and the problems to be expected in the event of a break in the power supply. 66 In a more recent case, the Council dismissed the Article 8 ECHR claim, relying on the 'standard case law' of the ECtHR requiring sufficiently serious negative effects (see Section 3.1). It also specified that it is not for the municipal authorities to make it plausible that no health complaints will accompany the granting of the license. 67 Article 8 ECHR has also been used to challenge the so-called Summing up, the analysis shows that the ECHR and EC(t)HR case law has worked in opposite directions. The ECHR, on the one hand, has been successful in framing particular problems as human rights issues. The best illustration, thereof, are the Groninger gas production cases, in which the ECHR made it possible to frame the underlying issue in terms of fundamental rights. In these cases, there was wide societal agreement that the ongoing situation is unacceptable. On the other hand, the ECHR and especially the case law of the ECtHR have not prevented courts from granting a wide margin of appreciation to the authorities and employing a limited scope of judicial review favourable to economic interests. Also, the minimum level of severity required by the ECtHR in its 'established case law' has been used by courts to dismiss environmental appeals easily on the basis of an often-used standard phrase.

| The right to property as a shield against environmental measures
Twenty-six of the 71 judgments concern cases in which the applicants, usually companies, car owners or farmers, challenge restrictive government measures that aim to protect the environment ( Figure 4).
The right to property has been invoked in several cases relating to the delivery of unaddressed printed advertising, albeit to no avail.
In recent years, several municipalities have introduced an 'opt-in system' requiring residents to make clear that they want to receive ad-  The right to property has also played a substantial role in cases   102 The Council also directly dismissed a 1 FP challenge of the duty to tolerate the construction and maintenance of eight wind turbines. 103 The Electricity Act provides for such a duty in relation shows that the chance of success has been generally low, primarily because of the broad margin of discretion for the authorities to strike a fair balance. It is, furthermore, remarkable that 'only' half of the cases (13 of 26) do not refer to the case law of the ECtHR.

| E XPL AINING THE ABS EN CE OF A SUBS TANTIVE IMPAC T OF THE ECtHR
The previous section showed that the number of citations of the ECtHR in Dutch environmental cases has grown in quantitative terms in recent years. Nonetheless, in substantive terms, the impact of this 'turn to rights' has been limited. This section examines two important explanations for this: the limitations of the EC(t)HR framework (Section 3.1) as well as the prevalence of detailed environmental (EU) norms (Section 3.2).

| The limitations in the case law of the ECtHR
The limited transformative effects of the ECHR and the case law of the ECtHR in the Netherlands are not surprising and are inherent in the set-up of the ECHR system as monitored by the ECtHR. This is because the case law of the ECtHR includes a considerable number of shield cases dealing with property rights that challenge environmental measures that are allegedly too stringent. In addition, the sword provided by the EC(t)HR is rather short and dull, as the rest of this section illustrates. Scholars have noted -and sometimes criticized -the ECtHR for being (too) cautious in such cases and for being reluctant to formulate precise positive obligations to protect the environment. 110 Lambert even noted recently that the ECtHR 'has reached the end of the road with regard to environmental protection'. 111 It is also far from clear what the position of the ECtHR is with respect to the link between climate change and the ECHR, given the absence of cases. 112 As will be further discussed below, the pertinent legal questions involved are whether the ECHR applies to future generations and anticipated harm and whether a State has obligations beyond its own territory. 113 The Dutch Supreme Court answered those questions in the positive in Urgenda. 114  There is no actio popularis. 118 The limited level of protection in sword cases can be attributed to the following six features of the EC(t)HR framework.
First, the ECHR itself does not provide for a self-standing right to a healthy or clean environment, as has also been emphasized by the Dutch courts at times. 119 The ECtHR has 'greened' existing rights and relied on other provisions, such as Article 2 and especially Article 8, to construct such a right. 120 In several more recent judgments, the ECtHR did not mention the construction of this right. 121 In Jugheli v Georgia, a judgment that has been relied upon frequently by the Dutch Council of State, the ECtHR held explicitly that 'there is no explicit right in the Convention to a clean and quiet environment'. 122 In Kyrtatos v Greece, the ECtHR determined: 'Neither Article 8 nor any of the other Articles of the Convention are specifically designed to provide general protection of the environment as such; to that effect, other international instruments and domestic legislation are more pertinent in dealing with this particular aspect.' 123 Second, the ECHR only offers indirect protection to the environment. The ECHR has an anthropocentric nature and only protects the environment in relation to the rights of human person(s) and does not protect the right to nature preservation as such. 124 For this reason, it has been put forward that human rights norms and regimes are 'ill-suited' to protect the environment. 125  KROMMENDIJK to noise-free nights. 135 This economic focus also means that the chances that individuals can win their case before the ECtHR are higher when the industry in the vicinity has a limited economic value or is outdated. 136 The limited intensity of judicial review is also evidenced by a procedural turn in the case law of the ECtHR. The ECtHR examines the quality of the decision-making process and focuses on whether the individual's interests were duly considered. It, thereby, pays attention to the wider legislative and environmental context. 137 According to some, this procedural test has led to a 'debasement of the proportionality test'. 138 Fourth, and related to that, is the ECtHR's focus on the legislative framework in place. The ECtHR limits its assessment to the question of whether States complied with their own existing rules. 139  Fifth, the ECtHR requires that adverse effects must attain a certain minimum level of severity. This is one of most substantial obstacles to environmental litigation, as the analysis of Dutch court judgments will also demonstrate. 144 The ECtHR has employed a relative assessment depending on the circumstances of the specific case, examining factors such as the periodicity, intensity, duration and location in the light of the general environmental context. 145 The rationale behind the high threshold is the necessity of achieving a fair balance with economic considerations. 146 The casuistic nature of the case law in relation to this requirement has led to limited guidance from ECtHR. 147 The mere fact that pollution is unlawful is not, in itself, enough. 148 The assumption that the effects of 'every day nuisances' should be tolerated is implicit. 149 The rationale behind this is that the affected individuals can choose to leave the area. 150 Sixth, the reactive nature of the ECHR is not very helpful for future or potential risks because the dangers or risks need to be 'serious, specific and imminent' or 'real and immediate'. 151 For example, in Asselbourg, the ECtHR required 'reasonable and convincing evidence of the likelihood that a violation affecting him personally would occur: mere suspicion or conjecture is insufficient in this regard'. 152 Mainly speculative health risks, such as electromagnetic radiation, are not enough. 153 The latter also illustrates that the ECtHR does not strictly adhere to the precautionary principle and applies a high threshold of potential adverse effects. 154 As was discussed in Section 2.1, the Dutch Council of State has also adopted this approach in some cases. One ECtHR exception is Tatar, in which the applicant was exempted from the burden of proof and did not need to prove the existence and certainty of the risk. (EU) environmental standards are relied upon. 158 What is interesting about these cases, but also several cases discussed in the previous subsections, is the prominence of EU environmental secondary law.
As an example, one could think of the EU Nitrate Directive in the earlier discussed cases relating to the phosphate system. 159 169 The Court based itself on the German Basic Law and made passing references to three judgments of the ECtHR, while noting that the ECHR does not give further protection than the Basic Law.
Dutch courts have primarily relied on the ECtHR in cases dismissing environmental and climate claims, as several Dutch Council of State judgments illustrate. This is, as such, not surprising given the limitations in the ECHR, namely the absence of a self-standing provision on the right to a healthy environment and the restrictive approach of the ECtHR. An illustration of the limitations of the ECHR framework is evident in the recent judgment of the Norwegian Supreme Court in a case dealing with licences for offshore oil exploration in the Arctic region. The Court held in relation to Article 2 ECHR that the licences did not pose a 'real and immediate' risk because of the uncertain effect of the licences on greenhouse gas emissions and because the effect of climate change is only in the future. 170 The Supreme Court also ruled that Article 8 ECHR is of limited value in relation to climate change, emphasizing that this provision has been applied by the ECtHR to local environmental damage and dangerous activities close to the applicant's home, usually from a few hundred metres to a few kilometres. The Court noted that there has been no judgment of the ECtHR in relation to climate change. It pointed to the pending Portuguese youth case, but it noted that this case concerned a real link to environmental degradation, namely forest fires and heat waves in Portugal. 171 The Court also ruled that other international climate obligations cannot be used to interpret the ECHR in the absence of a specific ECHR provision on the right to a healthy environment. The Court, furthermore, held that Urgenda 'has little transfer value', since this case did not deal with the validity of an administrative decision and it did not involve the prohibition of a specific measure or source of emissions, but the lowering of the emission targets.
This article also highlighted differences between Dutch courts in their reliance on the EC(t)HR. Even though few environmental cases have reached the Dutch Supreme Court, the Court has undertaken a more environmentally friendly reading of the ECtHR than the Council of State. 172 Just as many other national courts, 173 the latter has allegedly shown more deference to administrative and political decisions emphasizing the broad margin of appreciation. The Council has also applied a relatively high threshold of 'real and immediate' risks. The difference between, for instance, Urgenda and Vereniging Milieudefensie is difficult to explain on the basis of a doctrinal analysis alone. These observations warrant the question as to how the divergences between and within courts within one country can be explained, let alone the differences between States. 174