In general, laws in our national legal system concern conduct. Citizens and organizations may or must do or not do certain things. We are not allowed to steal, we must adhere to speed limits and stop at red lights, and we are required to install fire alarms in hotel rooms. The subsequent outcomes of those behaviors are not set out in laws. There is no law on the number of thefts, the number of traffic accidents, or the number of hotel fires that should be limited. The government aspires to drive down those unwelcome incidents for us, but these ambitions are not enshrined in any law. So why do we do that with CO2 emissions? Is it right in national law that we legislate for these kinds of future behavioral outcomes? Aren’t such laws giving too much political clout to unelected interest groups and courts?
Far too many influential factors
Annual CO2 emissions are subject to far too many factors that influence them to be tied down in laws aimed at the future. Winters can be cold or warm, and a corona pandemic could simply cut down our national emissions. As a result, we even met the Urgenda ruling of a 25 percent reduction by 2020 by happenstance. We all understand that that is an exceptional result, one that would never have been achieved without the far-reaching effects of corona. What if there had been no pandemic? Could Urgenda then have forced the Dutch government not to carry out the maintenance of dikes or humanitarian missions? After all, those activities are being undertaken now and in the years to come using fossil-fueled bulldozers, vehicles and aircraft. Would Milieudefensie (Friends of the Earth Netherlands) then have been able to force governments, citizens and companies to shut down their operations and be left sitting in the cold? Would the Dutch courts have heeded such absurd and destructive legal demands then?
The Delta Act as an example
The Delta Act of 1958 is a prime example of a legal framework for a long-term commitment. After the 1953 flood disaster, Dutch society and government decided that we wanted to protect ourselves much better against future threats of flooding. In order to do this, a physical sea dike structure and dike heights were determined based on the probability of flooding once in every ten thousand years. The law did not mandate that such a future frequency of flooding would ever eventuate, never mind that there might never be another flood disaster.
The law did specify what the seawall defenses in the Netherlands would look like over the course of 20 – 25 years. The law also set out in detail the order in which dikes would be built or where they would be heightened. This was not left to the various regions (as is unfortunately the case now with the Regional Energy Strategies), as it was all part of an integrally optimized plan. This culminated in 1985 with the completion of the Eastern Scheldt storm surge barrier. That was seven years later than originally planned because an initially closed-off Eastern Scheldt dike was transformed into the open storm surge barrier that we know today. That delay did not lead to any lawsuits, but it did lead to political wrangling. And so it should have, because these kinds of national interests are not a matter for the courts, but for government and parliament.
Climate laws fundamentally different from the Delta Act
Regrettably, climate laws are fundamentally different from the Delta Act. Climate laws set out future results that the government and therefore all of us are only able to bear any influence on to a limited extent. For example, they do not determine where and how many wind turbines and solar panels we will need by 2030. That would be comparable to the approach to the dikes of the Delta Act. Climate laws, on the other hand, stipulate that we must reduce half of our CO2 emissions within ten years. That is comparable to a Delta Act that would mandate that there be no more than one flood in the next ten thousand years. The creators of the Delta Act in 1958 realized that they could not guarantee such a future outcome, given that nature, weather, climate and tides have a profound influence that is beyond human control. However, the makers of climate laws apparently do not seem to realize this.
What if the economy were to grow even faster and everyone traveled and consumed so much more? What if the war in Ukraine goes on for a very long time? Or what if economic crises break out and we run out of money for those billions in subsidies for wind turbines, solar panels, electric vehicles and hydrogen plants? And what if we have shortages of essential metals like lithium and cobalt? What if the development of new energy technologies fails to deliver as much as projected? As for biomass, what if it can no longer be called CO2-neutral? What if there is a birth or immigration boom? Or if we experience more Elfstedentocht natural ice-skating races in the coming decades? Or what if we have to carry out far more dike maintenance and humanitarian missions than we had foreseen? … With all the extra CO2 emissions that involves.
Surely it is up to the government and parliament to make these choices, and not up to unelected interest groups and courts. Why do government and parliament then legally bind themselves to securing results in the future that for a large part lie outside our sphere of influence?
Democracy falls prey to special interest groups and courts
Climate laws are fundamentally flawed because they are not about concrete and largely influenceable behaviors and outcomes. Climate laws set future outcomes that no one knows which behaviors and technologies we are likely to achieve. That gives unelected special interest groups ammo to file lawsuits against the State – and therefore against all of us – and courts the freedom to determine how we should be protected from the threats of climate change. In the cases against the State and against Shell, the courts have subsequently ruled that CO2 emissions need to be brought down further. The rationale is that society must be protected from the risks of global warming
However, in doing that, the courts are stepping into the shoes of politicians. After all, reducing CO2 emissions is not the only way to protect ourselves against the threats of global warming. The reinforcement of dikes and other infrastructural modifications are also an option. That choice is up to our elected politicians, not the courts. However, our elected politicians have given the courts an instrument to sit on their parliamentary chairs by turning perfectly understandable ambitions (i.e., halving CO2 emissions) into laws. The Delta Act had the ambition to have no more floods, and Kennedy had the ambition to land on the moon. However, in the last century we were not so foolish as to enshrine those sky-high ambitions into laws, and expose ourselves to legal proceedings. I consider the fact that we do so with our climate laws a horrendous democratic injustice.
No one knows what influencing factors there will be
Seen from the laws of natural science, a climate law that decrees a halving of CO2 emissions within ten years is completely unfounded. No one knows what influencing factors there will be, and how we might accomplish that technically, economically, and socially. You could also decree that apples should fall upwards by the year 2030. That is equally scientifically unfounded, and no lawsuit or fine is going to bring that kind of future outcome any closer.
Furthermore, all the lawsuits and fines that the State incurs are ultimately borne by you and I, the taxpayers. I think it is wrong that you and I have to pay for a lawsuit concerning CO2 emissions which is filed by an unelected interest group and a fine imposed by a court. Therefore, as a citizen with the right to vote, I would like to see that all elected and paid politicians safeguard the State (and therefore me) against such destructive lawsuits and fines that are imposed on the basis of too many uncontrollable factors. For that, it is not so much the climate ambitions that need to be taken off the table, but the climate laws that can undemocratically enforce such ambitions at the expense of all of us. I foresee that this will happen before 2030, as they will prove neither legally nor democratically tenable.
About this column:
IIn a weekly column, alternately written by <em>Eveline van Zeeland, Eugene Franken, Katleen Gabriels, PG Kroeger, Carina Weijma, Bernd Maier-Leppla, Willemijn Brouwer, Maarten van Andel, and Colinda de Beer</em>, Innovation Origins tries to figure out what the future will look like. These columnists, sometimes joined by guest bloggers, are all working in their own way to find solutions to the problems of our time. So tomorrow will be good. Here are all the previous articles.
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