Nastasia Virvilis investigates the lawsuit led by Milieudefensie against Shell, and whether it is likely to be successful in the Dutch Supreme Court.
Milieudefensie (the Dutch branch of Friends of the Earth) and 17,379 co-plaintiffs are taking Shell to court, potentially setting a major precedent in environmental law. The group and their co-plaintiffs are fighting to hold the £113 billion company accountable for its contribution to global CO2 emissions and its insistence on using highly polluting fossil fuels.
According to a new report from the not-for-profit charity, CDP, Shell is one of 24 corporations who have contributed to more than half of global industrial greenhouse gases (GHGs) since 1988. Because of its active role in rising emissions despite alternative measures, Milieudefensie argues that Shell is in breach of Article 6:162 of the Dutch civil code. On top of this, they are also making claims that the company’s practices are in breach of human rights, namely, Article 2 (right to life) and Article 8 (right to family life) of the ECHR.
In 2015, the Paris Agreement set internationally binding goals that must be met in order to limit global warming. In a statement, Shell claimed that, “achieving this goal is possible but will require unprecedented collaboration between Government, business and society.” Their current aim is to reduce their relative CO2 emissions 30% by 2035 and 65% by 2050. Milieudefensie has criticized this for being too low, insisting that their goal be to reduce emissions 96% by 2035. In a statement, Milieudefensie said: “This is a historic moment because we are backed by so many people. This is actually ‘The People versus Shell’, a company that has got away with greenwashing for too long. This case will make it clear to everyone that more than 95% of what Shell does is causing dangerous climate change.”
Cases against the fossil fuel industry are nothing new. However, the emerging cases like the one at hand seem to have a shift in focus. Milieudefensie’s director Donald Pols said: “this is a unique lawsuit with potentially significant consequences for the climate and the fossil fuel industry globally.” In the past, cases against polluting corporations have generally focused on liability. The companies would be held accountable by having to pay damages with the rationale being that this money would be funnelled into compensatory practices. Now, we are seeing a shift in cases that seek to lower emissions to begin with. Author of Climate Obligations of Enterprises, Jaap Spier, says: “The need to explore avenues to reduce emissions is much more important than discussions about compensation.” Cases such as Milieudefensie-Shell are being made on a human-rights basis, and aim to hold corporations accountable by forcing them to change their business models and policies.
The precedent that this case would create sets it apart, and the impact of precedents in environmental law is clear. The Milieudefensie-Shell lawsuit emerged after a historic 2019 ruling, where the non-profit foundation Urgenda held the Netherlands government accountable for its contribution to climate change. This marked the first time in history that citizens were able to successfully prove that the government has a duty of care to reduce their emissions on the basis of human rights. (For an English translation of the judgement, click here).
Whether Milieudefensie will succeed in The Hague is yet to be seen. But Milieudefensie said: “We are confident that the judge’s final verdict will force Shell to adhere to international climate goals and stop causing dangerous climate change.” In a comment for the Financial Times, Roger Cox (the lawyer behind the Urgenda case) said: “If successful it would set a precedent. It would be the first time a court could force an oil major to change course” adding that, “That’s what we’re looking for here. Not damages, not compensation. A new approach.”
In a 2018 statement, Shell’s chief executive, Ben van Beurden, said: “Shell’s core business is, and will be for the foreseeable future, very much in oil and gas.” While Shell acknowledges the need to tackle climate change, they are reluctant to change at the rate Milieudefensie is urging them to. In a statement, Shell said: “This will not and cannot happen overnight. The switch to lower carbon energy sources will require huge changes to existing infrastructure and will take time and significant investment.”
In order for the case to succeed in the Dutch Supreme Court, the plaintiffs need to prove that an alternative business model is available. Whether they will be successful is unclear. However, no matter the outcome, cases like Milieudefensie-Shell have started to shape public opinion, and subsequently, the behaviour of investors and regulators. At worst, the case will raise a level of public awareness that will impact the fossil fuel industry and its practices.
About the Author: Nastasia Virvilis is a Law student at the University of York.