week 3: Milieudefensie v. Shell I – The factual and legal basis of the case Flashcards
(30 cards)
Climate change
One of most pressing issues of our time
○ Caused largely by anthropogenic GHG emissions
○ Leads to rising temps., extreme weather events, seal level rise, biodiversity loss
Principal sources of emissions are fossil fuel production and use, deforestation, industrial activity
Limiting GW requires coordinated international action and substantial emissions reductions across all sectors
Intro to Shell v. MD case
Shell one of worlds largest oil and gas companies and among biggest corporate GHG emitters
Operates globally incl. NL
In lawsuit filed by environmental NGO Milieudefensie :
○ District Court of The Hague ordered Shell to reduce CO2 emissions related to its business operations by 45% by 2030 (compared to 2019 levels)
Claim based on tort law : invoking a duty of care
○ MD won at 1st instance (2021)
○ Decision overturned on appeal (2024)
Universal themes of tort law
- There must be reason for liability
○ Wrongfulness
○ No fault liability- Causation
○ Physical causation
○ remoteness - Remedies?
○ Money?
○ Injunction?
○ Apologies?
- Causation
Reason for liability
Wrongfulness:
failure to observe legal norms, either statutory/unwritten
- Reasonable and circumspect person; duty of care
Example supermarket:
□ customer slips on wet supermarket floor where cleaning was done and no sign placed, breaks arm and unable to work for weeks
-> sues supermarket for personal injury
Example ladder:
□ painter leaves ladder unattended on sidewalk leaning against building, it falls and hits passerby
-> Injured person files claim against painter for negligence
Example roof tile:
□ During storm poorly secured tile falls off house roof and damages car parked below, car owner suffers financial loss
-> Car owner sues homeowner for failing to maintain property safety
Example vroom vroom:
□ Cyclist hit by car that ran red light, suffers broken leg and damage to bike
-> Driver held liable for negligence
Example medical error:
□ Dr mistakenly prescribes wrong meds, patient gets severe side effects and requires further hospitalisation
- >Patient brings tort case against hospital for medical negligence
Causation
physical causation: establishing causal link
- Operation of conditio sine qua non (‘‘but for test’’)
Example lottery ticket:
□ X sets out to buy lottery ticket from local supermarket , he is blocked on his way by traffic accident caused by Y, ticket he would’ve bought turns out to be winner
□ Physical causation? - Yes
Remoteness: limiting scope of ‘‘but for’’ test
- Uncorrected ‘‘but for’’ test leads to ‘‘Adam and Eve liability’’
- Test for remoteness is normative in nature
-Foreseeability key
Example lottery ticket:
Lottery ticket not bought the damage (failing to win lottery) is too remote from tort (breaking traffic rules) - foreseeability
Remedies?
Money: compare acc financial position of claimant to position he would have been in w/o tort
- Claims for damages claimant must prove harm has already occurred and was caused by defendant conduct
Injunction: order to not do something
- Injunction claims claimant does not have to show that harm has alr occurred
□ but must demonstrate real and imminent risk that defendant conduct will cause harm in future
- Causation less strict than in damages claims but not irrelevant
□ Courts still require plausible causal link b/w defendant actions and anticipated harm
Apologies: forced?
Steps in assessing duty of care in tort law
- Duty of care?
- Abstract norms in case law:
○ Example in case of negligence:
- Improperly secured barge had drifted away from pier and caused damage to several other boats
- Judge: ‘’ the owners duty as in other similar situations, to provide against resulting injuries is a function of 3 variables:
1. The probability that barge will break away
2. The gravity of the resulting injury if barge does
3. Burden of adequate precautions’’
- Abstract norms in case law:
- Statutory norms - either directly/indirectly
- Soft law
○ UN Guiding Principles on Business and HR
○ OECD Guidelines for multinational Enterprises- Judgement of experts
Circumstances of the case
- Judgement of experts
Context of Shell vs Milieudefensie case: Introduction
central q, themes, what is it
In 2021 District Court of The Hague ordered Shell to reduce CO2 emissions related to its business operations by 45% by 2030 (compared to 2019 levels)
○ Case initiated by Milieudefensie (Friends of the Earth Netherlands)
Judgement touches on multiple complex legal themes:
○ Separation of powers
○ Corporate responsibility
○ Collective actions
○ Soft law
Central question:
○ Is judicial intervention by civil courts in regulation of CO2 emissions aimed at combating climate change legitimate?
Regulatory failure and civil law
Civil liability deals w harm caused by human behaviour
○ CC fits within this domain but traditionally involves private parties
Here we are dealing w matter of public policy
○ b/w individuals?
○ Consequences are foreseeable?
○ All facts on the table?
Separation of powers (Trias Politica)
- Legislative power:
○ Makes laws
○ Typically parliament/legislature- Executive power:
○ Implements and enforces laws
○ Typically gov/public administration - Judicial power:
○ Interprets and applies laws
○ Typically courts and judges
- Executive power:
-> What is the law here?
-> Duty of care?
Asbestos as case of Regulatory failure
Delayed response despite early warnings:
○ Although health risks of asbestos known as early as 1960s, Dutch gov only banned in 1993
Classic case of regulatory capture:
○ Delay attributed to industry influence over regulators, prioritising commercial interests over public health
Parallel w climate litigation:
○ Shell case framed as potential early intervention in similar trajectory
- >preventing long-term harm by acting before overwhelming damage done
Climate law and political failure
- Dutch Climate Act sets ambitious targets: 55% emissions reduction by 2030
- Studies show targets not being met
○ Causes:
- Democratic underrepresentation of future gens
- Psychological denial
- Political cycles
- Studies show targets not being met
Court as the ‘‘grown-up in the room’’
Civil court viewed as impartial actor capable of taking rational decisions
○ Especially relevant when gov lacks capacity/will to act effectively
But:
Courts lack democratic legitimacy and not immune to bias
Requirements for judicial intervention
- Court must offer qualitatively better decision than gov
- Intervention must be effective in real-world terms
- Decision must respect limits of judicial competence
Judicial intervention effectiveness: 3 dimensions
-
Individual impact
○ Hard to measure/prove in climate cases
- Asbestos vs. climate:
□ unlike asbestos, CC cannot be effectively mitigated by one national court due to global nature - Scale problem:
□ NL 17.5 mil citizens dwarfed by populations and emissions growth of countries like China and India - Minimal global effect:
□ Even strong Dutch emissions policies have little factual impact on global climate outcomes - Risk of counterproductive effect:
□ If Shell reduces fossil activities competitors may simply take over, potentially worsening CC - Impact on green transition:
□ Weakening Shell financially could reduce its ability to invest in sustainable alternatives- Courts stance:
□ Even if obligation has negative climate effects, court considers this irrelevant to Shells legal responsibility
- Courts stance:
-
Collective impact
○ Setting legal norms for businesses (e.g. Shell's duty of care) - Is it legitimate to impose 45% reduction rule on all major emitters? - Shells emissions differ in nature and scale from other firms - Legal transferability of judgement remains uncertain - Raises fundamental qs abt scope of private law duties3. Symbolic power○ Shaping discourse and legal expectations
Case already influenced:
□ Public discourse
□ NGO strategy
□ Corporate compliance
Example: MD letters to 29 major polluters citing Shell judgement
Climate change and scientific stuff
- There is direct, linear link b/w human-caused GHG emission, in part caused by burning of fossil fuels, and global warming
○ Est. by IPCC (not necessarily court) No denying it
IPCC analysis of states current policies
- goal we want is the blue line
- Green line is top max we should really stay below it
- Red line is currently what we are at with states policies
□ Many island states will not exist anymore
Not sufficient
Difference b/w scope 1, 2, and 3 emissions
-> Bc they differ there is difference in obligations
Scope 1: company’s direct emissions (para. 3.1)
□ (Factory CO2 emissions, company vehicles, etc.)
Scope 2: indirect emissions from purchased energy
□ (emissions from electricity that company buys and uses, doesn’t produce)
Scope 3: indirect emissions generated in company’s value chain
□ value chain : from consumption, so also emissions generated by consumers
(suppliers producing raw materials, transportation, consumer emissions)
1.5° C goal
Scientific consensus (IPCC)
‘‘that Earths avg. temperature should not increase more than 2°C relative to the avg. temperature in pre-industrial times’’ and that ‘‘from abt 2015, temperature rise should not exceed 1.5°C’’
○ IPCC body under UN
Why:
Adverse effects widespread around world to nature and people
□ If we reach higher temperature risk of impacts higher and huge adverse effects on biodiversity loss, water stuff
Regional differences
□ Most effected part is around the equator - always this part more effected
□ If we stay in 1.5°C limit less of world effected
- If we exceed 2°C more developed also affected but less
- If we exceed 3°C the most
- affected part will become pretty much uninhabitable
□ Most effected contributed least
**NDCs to reach goal **
Race to 1.5°C - Europe
Europe doing a lot :
○ EU Climate law ((EU) 2021/1119):
- Art. 2: net-zero in 2050 and negative emissions thereafter
- Art. 4: min 55% reduction in 2030
-> Policies being watered down by political climates, also humans not wired to consider future problems, rather right here right now issues
Milieudefensie v. Shell: emissions
Shows totals b/w Shell’s scope 1, 2 and 3 emissions
○ Scopes 1 and 2 emissions only make up 5% of their total emission ○ Scope 3 emissions make up by far biggest part (95%) - 1/3 emissions from goods produced and sold by shell - 2/3 emissions from goods produced by other parties but sold by shell
Milieudefensie v. Shell facts:
Against what background is Milieudefensie et al. suing Shell?
MD sued Shell, arguing not doing enough to reduce CO₂ emissions and thus acting unlawfully
Claim based on Article 6:162 Dutch Civil Code (addresses unlawful acts)
□ asserting Shell’s inaction violated unwritten legal standards of proper social conduct
Court of Appeal examined whether Shell’s failure to reduce emissions constituted a breach of a social standard of care
□ assessment considered various factors including legislation, general legal principles, fundamental rights, case law, and expert report
Court concluded that while Shell has obligation to counter dangerous climate change, the civil court could not establish a specific percentage by which Shell must reduce its CO₂ emissions
□ court noted that Shell had already reduced its Scope 1 and 2 emissions by 31% compared to 2016 levels by the end of 2023 and had concrete plans to achieve further reductions
Therefore, the court found no imminent violation of a legal obligation that would warrant imposing a specific reduction target.
Milieudefensie v. Shell facts: does shell have legal duty o reduce its CO₂ emissions under Dutch law (Article 6:162)
In paragraphs 3.21–3.54, the court considers whether Shell has a legal duty to reduce its CO₂ emissions under Dutch law (Article 6:162)
It looks at international agreements, climate science, and human rights (Articles 2 and 8 ECHR)
The court discusses Scope 1, 2, and especially Scope 3 emissions, which make up most of Shell’s total
It concludes Shell does have a duty of care to help prevent dangerous climate change, but doesn’t set a fixed emissions target due to the complexity of assigning global responsibilities to one company
Shell v. MD : What is Milieudefensie’s main claim?
In short: they want Shell to cut its total emissions significantly by 2030 and be held legally responsible for failing to do so
1. Shell’s CO₂ emissions (Scope 1, 2, and 3) are unlawful, and that Shell must reduce them in line with the 2019 levels and the goals of the Paris Agreement 2. Shell should cut emissions by the end of 2030, by: - Principally: 45% to 2019 level - alternative: Or if not that, at least 35%, or net 35% to 2019 level - Further alternative: 25%, or net 25% to 2019 level -> Injunction
-> Shell has legal obligation to reduce their omissions,
MD’s claim:
45% reduction in 2030 compared to 2019 of scope 1, 2 and 3 GHG emission (or 35%), (or at least 25%)
Asking for injunction (AKA court order) for Shell to reduce, because Shell acting unlawfully if it doesn’t reduce
- Claim based on tort law
Explain why it makes sense that Milieudefensie claimed a legal court order to reduce emissions (an injunction ex. Art. 3:296 Dutch Civil Code) rather than a claim for damages (ex. Art. 6:162 DCC)?
In civil law traditions legal framework of injunction is not same as damages
Claim for Damages:
seeks compensation, for something that already happened, quantifying hard, climate damages
** Injunction:**
Court order, to stop, preventative measure, forward looking
Biggest difference in causality:
- Doesn’t have to show the specific conduct
- Not formal requirement but can have influence
->Opted for injunction because it’s more of a strategic choice
