from climate etc.
Lucas Bergkamp
On November 12, the Court of Appeal in The Hague ruled in the “Climate Case of the Century” that Milieudefensie (“FoE”) sued Shell in 2019. The Foundation “Man and the Environment” (M&E) joined the case on behalf of the interests of Dutch citizens.
The Court of Appeal was unimpressed by the FoE's “go green or go extinct” argument and rejected its claim. However, the Court of Appeal's ruling leaves much to be desired and does not eliminate the threat of radical NGOs launching climate cases to achieve “system change” that would put democracy on hold, silence citizens and destroy economies.
climate science
Despite M&M's strong rebuttal with expert reports, the Court of Appeal uncritically accepted many of the FoE's factual statements about the urgency and seriousness of the climate problem. In doing so, the court relied on the authority of the IPCC and the so-called “consensus” reached in its reports (especially the SPM).
The court not only regarded the IPCC report as irrefutable evidence but also gave it normative force. For example, the court ruled that climate scientists have determined the average temperature on Earth Not allowed Rising more than 1.5 degrees. In doing so, the court, like the Dutch Supreme Court, ignored that science cannot set norms and that scientists have no right to set social standards. The scientific leanings of the Dutch judiciary are extremely worrying and do not bode well for future climate-related judgments.
dangerous climate change
For example, the court came to the alarmist conclusion that “climate is the biggest problem of our time.” The dangers of climate change are huge and even “life-threatening.” Fact-based non-factual findings and judgments and mandatory references to the Paris Climate Agreement, Urgenda climate seniors Following a ruling by the European Court of Human Rights, the court confirmed the right to be protected from the effects of “dangerous climate change”.
“Preventing dangerous climate change is a human right,” the court said, without any caveats or restrictions. Clearly, the realization of this human right will come at the expense of various other human rights and interests, such as the right to (or interest in) access to reliable and affordable energy. Inevitably, the right to be protected from the effects of “dangerous climate change” will undermine the achievement of other “sustainable development goals.” Although M&E extensively pointed out such trade-offs, judges did not bother to address these implications of climate ethics.
dog whistle
The court held that this new human right must be respected not only by the state but also by big business. In civil liability law, this right translates into a company's duty of care. The court held that the Paris targets require measures to reduce demand for fossil fuels and limit the supply of fossil fuels. Oil and gas companies should therefore consider “the negative impact on the energy transition when investing in fossil fuel production”.
Following this reasoning, the judgment suggests that “saving the climate” legitimizes the slow expropriation of oil and gas companies. Such dog whistles did not escape the attention of FoE lawyers, who hinted at further legal action to block the development, expansion and financing of oil and gas production, referring to an upcoming climate finance case against ING, the Netherlands' largest bank.
reduction percentage
The FoE lost the case based on two lucid moments from the judge. The FoE requires Shell to reduce scope 1, 2 and 3 emissions. In relation to scopes 1 and 2, the Court of Appeal found that Shell had committed itself to achieving this objective and expected to achieve it, and therefore dismissed the claim.
Regarding Scope 3 emissions, the Court of Appeal concluded that neither the law nor climate science set specific emission reduction standards for companies like Shell. The court held that the 45% cited by the FoE was only a “global average reduction across all sectors” and did not apply to every country and every business sector. In fact, this point has been well explained in M&E's submission to the court.
In this regard, the judgment is a dialogue between the courts and the climate movement. Climate science therefore knows what is expected of it: to set emissions reduction standards for the oil and gas industry and to have courts (at least the Dutch courts) enforce these standards.
effectiveness
The Court of Appeal also weakened FoE's proceedings by ruling that the reduction order sought by FoE was invalid. This is also explained in detail in M&E’s expert opinion. As the court confirmed, there is no reason to believe that emissions reduction obligations imposed on specific companies will have any positive impact: if Shell sells less oil and gas, other suppliers will replace it, and any “climate gains” will be unreal.
gradually realized
According to the human rights theory of “progressive realization”, the right established by the court to be protected from “dangerous climate change” is slowly but surely being realized. Two steps forward, one step back: first governments, then businesses, then specific percentages of reductions, then no such percentages.
This week, despite some setbacks, the district court's first-instance judgment has taken effect. With this judgment, many other lawsuits have been launched, and the climate movement has been able to convince the EU to force companies to implement “climate transition plans” for 1.5 degrees. Judges quickly learn how to play the political climate game.
The threat remains
It is the first climate ruling in the Netherlands in favor of citizens suffering from rising prices for energy and other products. The M&E's intervention had an effect because it showed the court that such cases affected other interests as well, and that other valid views on the issues would produce very different conclusions. Moreover, since the main reasons for dismissing FoE claims are factual in nature, it is difficult to find a good angle to appeal to the Supreme Court, which only examines legal points.
One battle has been won, but the climate war will continue. Activist NGOs will be able to gain new legal ground from court rulings in further climate cases.
NGOs serving the people
To prevent democracy from being put on hold and people succumbing to climate activists backed by the judiciary, the intervention of NGOs sympathetic to citizen interests remains crucial. People are enthusiastic about the idea, but financing the event remains the biggest challenge.
All in all, the decision of the Court of Appeal in The Hague is an important first step in restoring rationality and balance to judicial decision-making in climate cases. Dismissal of the case against Shell will have a knock-on effect on many other climate cases around the world and should prompt the EU to reconsider companies' obligations to implement climate transition plans that are compliant with 1.5C.
In all things climate, to use a Chinese proverb, “A journey of a thousand miles begins with a single step.”
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