Backed by 17,000 Dutch citizens, climate activists are wrestling fossil fuel giant Royal Dutch Shell in court over its responsibility to cut emissions to levels that comply with global treaties.
On the last of four days of hearings in the District Court of the Hague, seven environmental groups led by Friends of the Earth Netherlandspressed the court to force the oil major to commit to the Paris Agreement target of keeping warming to 1.5C. This would mean cutting net carbon emissions by 45% from today’s levels in a decade, the campaigners say, at a time where Shell is still investing heavily in fossil fuels.
Because Shell takes global decisions from its Dutch headquarters in the Hague, the plaintiffs argue that its emissions fall under Dutch law. Shell, however, says they are the responsibility of the countries in which it operates. It argues that oil producers have no control over the emissions of the citizens who burn their fuel for energy.
“It’s the first time that a large oil and gas business had to express itself on substance before a court about everything they are blamed for,” said Roger Cox, the lawyer representing the activists, at a press conference Thursday. “We believe if we can’t win this case now, it can’t be won.”
The case is the latest in a line of climate lawsuits based around the threat climate change poses to human rights. It hinges on how much power a national court has to rule on international matters, and whether a private company like Shell must obey a treaty like the Paris Agreement, which governs states and not firms.
If the judges rule against Shell in the new year — and appeals courts uphold the decision — it will set a precedent that could leave oil and gas producers vulnerable to further lawsuits for their emissions abroad. Foreign courts are not bound by Dutch law but a verdict against Shell could boost climate lawsuits against polluters across the world.
Shell‘s climate plans
Shell, which supplies 3% of the world’s energy, declined to reveal the share of its investments made into oil and gas. But Friends of the Earth and Follow This, a group of shareholders pushing oil majors to go green, estimate fossil fuels make up 95% of its investments.
In April, Shell announced aims to hit net-zero emissions before 2050 by investing in renewable energy, offsetting carbon from customers and removing CO2 from the atmosphere. “Today, Shell’s business plans will not get us to where we want to be,” the company and its CEO have said on multiple occasions.
In defense documents submitted to the court, Shell said it does not dispute the objectives of the Paris Agreement or the importance of addressing climate change. But a company spokesperson said: “What will accelerate the energy transition is effective policy, investment in technology and changing customer behavior. None of which will be achieved with this court action.“
Activists argue that by fueling damaging climate change, Shell is violating their fundamental human rights.
Shell executives have known for more than half a century that burning coal, oil and gas heats the planet.
In 1962, when the Earth was about 1C cooler than it is today, Marion King Hubbert, Shell’s chief geologist at the time, wrote in a report that greatly increasing fossil fuel was “seriously contaminating” the atmosphere and could have “profound effects” on the weather and ecological balances.
While the case in the Hague does not deal with the company’s historical emissions, the plaintiffs argue that Shell’s knowledge, size and ability to cut its emissions give it a responsibility to prevent climate change.
Cox, the lawyer representing the environmental groups, won a previous case in 2015 that forced the Dutch government to cut the country’s greenhouse gas emissions by at least 25% by 2020 from 1990 levels. The case has been cited in climate lawsuits from Norway to New Zealand.
The plaintiffs in the 2015 case drew on a ruling made in the US eight years earlier, that invoked a defense called the “drop in the ocean”: the argument that responsibility for climate change is shared, and so the blame for its consequences cannot be attributed to an individual.
Courts in the US and the Netherlands have rejected this argument because emissions are cumulative, and so every extra contribution adds to the damage.
Climate cases rarely have precedents within their own jurisdiction, said Margaretha Wewerinke-Singh, assistant professor at the Grotius Centre for International Legal Studies, in the Hague, who researches climate litigation. “A judgement against Shell is almost certain to be cited in other cases against corporations, and probably inspire new cases.“
Sara Shaw, international program coordinator for climate justice and energy at Friends of the Earth International, said courts are a “frontline” in the fight for the climate, adding that other big polluters will be watching the Shell case closely. “It’s untenable to say you’re going to keep within the 1.5C temperature target and continue to expand oil and gas.“
European Court of Human Rights
For Claudia Agostinho, a Portuguese nursing student, courts must step in where governments do not. The 21-year-old is one of six young people taking 33 industrialized countries to the European Court of Human Rights, in Strasbourg, for failing to cut emissions to levels that protect their future.
Agostinho was always worried about climate change, she said, but decided to act after deadly forest fires broke out in Portugal in 2017. More than 120 people were killed when a record 500,000 hectares burned during an extreme wildfire season that was made worse by hotter and drier conditions, a review published in the journal Nature found last year.
In November, the Strasbourg court ordered the countries named in the lawsuit to respond promptly to the allegations because of the “importance and urgency of the issues raised”.
“Our house was covered in ashes and we looked at the sky and it was grey,“ said Agostinho, whose younger siblings could not go to school because of the smoke from the fires. “We don’t deserve to live in a world like that.“