Judge will not lose authority if State fails to meet Urgenda requirement
Edo Smid's opinion in the FD

In the FD of February 16 Edsard van der Werf believes that the judge in the Urgenda case should have helped prevent a confrontation between the judiciary and politicians. Such a confrontation would not align with the principle that the various branches of government must balance each other out on an equal footing. The lecturer in General Jurisprudence at Radboud University Nijmegen argues that if, unexpectedly, things go wrong, the judge will lose authority. I disagree with that conclusion.

In the Netherlands, the system of balance between government powers has been disrupted to the detriment of citizens. The quality of legislation and legal certainty is deteriorating, and it is impossible to enforce government compliance with our constitution through the courts. This is where the Netherlands lacks an essential characteristic of a constitutional state.

The number of lawyers in the House of Representatives can be counted on one hand. The legitimacy of the Senate is under question. Advisory opinions from the Council of State on new laws are either ignored by the government and the House of Representatives or selectively used in their own convenient party-political context, marginalizing the Council of State as the guardian of legislative quality.

Moreover, the House of Representatives adheres to the "primacy of politics" and seems to want to control democracy unilaterally, which also risks ignoring the principles of the rule of law. Herman Tjeenk Willink, former President of the Council of State, has been criticizing the functioning of the democratic constitutional state for several years, to no avail.

A government and legislature that refuse to tolerate judicial review of failures will lose their credibility and authority. The Groningen earthquake case is a poignant example of this, and the push for further growth of Schiphol Airport is likely to be the next step.

The State has appealed the Court of Appeal's ruling in the Urgenda case. The Supreme Court should confirm that citizens can take legal action against a failing government through collective actions based on tort. Our highest court could thus provide the rule of law with a direct balancing instrument at a time when the balance between state powers is frayed.

Edo Smid, lawyer at Wintertaling lawyers & civil-law notaries, Amsterdam.

Read here the full article by Edo Smid in the FD.