The Dutch Urgenda Foundation focuses on the transition towards renewable energy by employing legal strategies. Although not a grant-maker, the Urgenda Foundation provides enormous insights into the funding strategy of Strategic Litigation as it is the initiator of one of the best-known climate litigation cases.
Dennis van Berkel
Behind Urgenda’s support for Strategic Litigation lies the conviction that only national governments are able to implement systemic changes at the scale and speed needed to mitigate climate change. Yet, there is a discrepancy between the science-based requirements and the actual policies of governments to reduce emissions. The Urgenda Foundation employs Strategic Litigation not just to instigate court rulings that directly force national governments to act but also to raise the bar of ambition in the political and public debate.
Application in Practice
In 2013, the Urgenda Foundation, filed a lawsuit against the Dutch government. Together with more than 800 plaintiffs, Urgenda argued that the government is endangering the human rights of Dutch citizens because its mitigation efforts failed to do the minimum of what was necessary to stay below the pre-Paris goal of limiting global warming to 2 °C. In 2019, Urgenda won the case in the last instance before the Supreme Court of the Netherlands.
Drawing on this experiences, the Urgenda Foundation established the Climate Litigation Network, a project which helps lawyers and activists around the world to file lawsuits against national governments. It provides the knowledge necessary to run these cases. Although lawsuits differ in detail, the network analyses cross-cutting lessons and defines general strategies to call out the inadequacy of governments’ climate action.
The vast majority of climate cases heard by a country's highest court have been decided in favour of climate action, legally forcing governments to adopt more ambitious policies. But even lost court cases have an impact by drawing public attention to the urgency of climate action - especially if they are backed up by communication efforts.
Many of the cases employ legal arguments that are new to court rooms and can set an important, sometimes historic, precedence. The climate case against the Dutch government, for example, is the first lawsuit in the world in which citizens have successfully claimed that their government is legally obliged to prevent dangerous climate change. This victory has attracted a lot of attention and inspired climate cases across the world.
What has worked well?
- Strengthen the public debate: Accompanying Strategic Litigation with public campaigns helps to put climate action high on the agenda. In addition, courts around the world can serve as forums to document the gap between governments' aims and their actions.
- Remember a court’s scope: Decisions by courts must remain within a legal framework. Courts are not in a position to define new standards, but they can scrutinise whether the ambitions of governments or companies are sufficient to meet existing standards.
- Focus on concrete outcomes: Lawsuits aiming to change legal structures are expensive and take time. Foundations with a limited budget for Strategic Litigation can use lawsuits to scrutinise government action in specific situations. For example, funders can help prevent the construction of an airport runway if the court decides that it is detrimental to the public interest.
What are opportunities for new funders?
- Support activism: As civil disobedience in defence of the climate increases, so does the need for legal representation of the people involved. This is an emerging field with a growing need for funding.