Milieudefensie et al. vs. Royal Dutch Shell
This case is a class action filed by Milieudefensie, Greenpeace NL, Fossielvrij NL, Waddenvereniging, Both ENDS, and Young Friends of the Earth NL which sued Defendant Royal Dutch Shell in the District Court of The Hague. Plaintiffs sought a ruling that RDS – parent company to Shell – must reduce its greenhouse gas (GHG) emissions by 45% by 2030 compared to 2019 levels, and to zero by 2050, in line with the Paris Agreement.
Specifically, the Plaintiffs built their case on the Urgenda precedent on State duties to mitigate climate change, but applied it to private companies, arguing that the Shell group has a duty of care to take action to reduce greenhouse gas emissions based on scientific evidence regarding the dangers of climate change. The Plaintiffs alleged violations of provisions of the Dutch Civil Code’s “unwritten standard of care,” which calls for redress after a tortious act by the tortfeasor to the victim. The Plaintiffs also relied on the European Convention on Human Rights, arguing violations of the right to life and right to private life, family life, home and correspondence.
In turn, the Shell Group argued that the Plaintiffs injuries were too discrete and thus did not fall within the scope of the cited laws. Additionally, RDS argued that the Court in making a decision regarding the solution for achieving the goals of the Paris Agreement was overstepping the bounds of the legislature.
The Shell Group also claimed that a reduction obligation imposed by the Court will have no effect, or could even be counterproductive, because the place of the Shell group would be taken by its competitors.
The Court considered whether the Shell group violated a duty of care and human rights obligations by failing to take adequate action to curb contributions to climate change.
First, the court found that RDS’ reduction obligation ensues from the unwritten standard of care laid down in Book 6 Section 162 of the Dutch Civil Code, “which means that acting in conflict with what is generally accepted according to unwritten law is unlawful.” The Court interpreted the unwritten standard of care on the basis of (1) the relevant facts and circumstances; (2) the best available science on dangerous climate change and how to manage it; and (3) the widespread international consensus that human rights offer protection against the impacts of dangerous climate change and that companies must respect human rights. This includes the European Convention on Human Rights, the International Covenant on Civil and Political Rights, as well as the precedent-setting case Urgenda.
The Court found that RDS violated the standard of care. It recognized that “Shell group is responsible for significant CO2 emissions all over the world. The total CO2 emissions of the Shell Group exceeds the CO2 emissions of many states, including the Netherlands.”
Second, the Court also imposed liability on RDS for its failure to respect human rights, as required by the United Nations Guiding Principles on Business and Human Rights. The Court notes that “respecting human rights is not a passive responsibility: it requires action on the part of businesses.” Specifically regarding climate change, the Court acknowledged the “broad international consensus that each company must independently work towards achieving net zero emissions by 2050.” As such, the court expects RDS to do its part. This is particularly in response to RDS’ continued arguments that they alone were not responsible for the climate crisis. The Court aptly rejected these arguments, holding that “where there are threats of serious damage to the environment, taking also into account human health and safety, not use the lack of full scientific certainty as a reason for postponing cost-effective measures to prevent or minimize such damage.”
Third, in its order, the court included the various subsidiaries that make up Shell group’s value chain as part of the activities that needed to be curbed. The chain included “the business relations from which the Shell group purchases raw materials, electricity and heat” as well as the “end-users of the products produced and traded by the Shell group.” As such, RDS’ responsibility also extends to the CO2 emissions of these end-users.
The Court ordered Shell to reduce its greenhouse gas (GHG) emissions by 45% by 2030 from 2019 levels on the grounds that Shell’s existing carbon mitigation strategy was not concrete and is full of conditions and disclaimers. The Court also concluded that Shell’s plans were not aligned with the Paris Agreement.
On July 20, 2022, Shell appealed the decision; however, the Court made its decision provisionally enforceable, meaning Shell will be required to meet reduction obligations even as the case is appealed.
This case demonstrates how human rights legal frameworks are becoming more prevalent in climate litigation. The Hague District Court not only found a violation of Dutch law, but also of the United Nations Guiding Principles on Business and Human Rights, setting precedent for future litigation. For instance, in line with the Guiding Principles, the Court extended liability not just to the core companies that make up the Shell group, but also to all companies and other business enterprises that make up Shell group’s value chain.
This case is an important step toward accountability for transnational corporations in the field of climate change and human rights. As the pressure mounts on States and private entities to do more to combat the climate crisis for which they bear significant responsibility, the Court’s reasoning here could be replicated in other climate-related claims in the Netherlands as well as in other jurisdictions.
