These Next Two Weeks Are Big For Climate Accountability Through The Courts In Europe

Efforts to hold major corporations and governments accountable through the courts for policies and actions that fuel the climate crisis are on the rise around the world, and especially so in Europe. This week and next will see critical developments in European climate accountability litigation.

Hearings on the appeal of the landmark 2021 verdict in Milieudefensie et al. v. Royal Dutch Shell, in which a Dutch court ruled that the oil and gas major Shell must reduce CO2 emissions across its entire supply chain by a net 45% by 2030 in line with the goals of the Paris Climate Agreement, start this week in The Hague, Netherlands. Since that May 2021 ruling – the first of its kind in the world against a fossil fuel behemoth – Shell has moved its headquarters to the UK and dropped “Royal Dutch” from its name; it has also appealed the verdict, and the Dutch climate campaigners that brought the lawsuit say Shell is flagrantly disregarding its court-mandated emissions reduction obligation. The appeal is a key opportunity for them to urge the courts to enforce the 2021 verdict, particularly in light of the latest climate science and expert analyses warning that society and major oil and gas producers are way off track to meeting international climate targets.

“The scientific basis on which we’ve founded our claims against Shell has only solidified. In court, it’s facts that matter, which is why I am confident that we can once again convince the judges that Shell needs to act in line with international climate agreements,” Roger Cox, lawyer for Milieudefensie (Friends of the Earth Netherlands), said in a statement.

The Shell case builds upon the historic Urgenda climate case against the Dutch state, where the courts determined that the Netherlands must reduce its greenhouse gas emissions by at least 25% by 2020. It was the first climate lawsuit in the world to establish that a national government has a legal duty to protect human rights by taking more ambitious climate action to mitigate serious climate harms. The Urgenda case has inspired a wave of rights-based climate lawsuits against governments throughout Europe (and beyond), and now a regional human rights court is set to deliver highly-anticipated decisions in a trio of climate cases that could have major ramifications for European climate policies.

Next week on Tuesday, April 9, the European Court of Human Rights will hand down rulings in three climate lawsuits heard by the Court’s Grand Chamber last year. The cases, brought by Portuguese youths, an association of elder Swiss women, and by a French citizen and former mayor of a coastal village, all challenge government climate policies as insufficient to protect citizens’ human rights against the ravages of the unfolding climate emergency.


Shell “Can’t Bolt from the Courtroom”

It was almost exactly three years ago that the District Court of The Hague issued its historic ruling against Shell, hailed by climate advocates as a “watershed” moment and a win for climate accountability and justice. This week, starting on Tuesday, April 2, Milieudefensie and Shell will be back in court as the company tries to get the 2021 ruling overturned on appeal.

In a July 2021 statement on its decision to appeal, Shell suggested that it was unfair to single it out with such a verdict, with then-CEO Ben van Beurden claiming that “a court judgment, against a single company, is not effective.” Since then, Shell has appeared to refuse to comply with the court’s order that it slash its emissions by almost half by the end of the decade, as the company has doubled down on oil and gas production despite expert warnings that development of new oil and gas is not needed in net zero emissions pathways and would be incompatible with limiting warming to 1.5°C. A new report from Milieudefensie and Oil Change International reveals that Shell plans to continue extracting fossil fuels for decades to come. Shell has already approved 20 new oil and gas projects since the court verdict and it has another 813 assets yet to be developed.

A Shell spokesperson previously told Climate in the Courts, in response to the report, that it expects liquified natural gas (LNG) “will play a critical role in the [energy] transition,” adding that the court ruling “gives Shell broad discretion to determine how the emissions reduction should be achieved. Importantly,” the spokesperson said, “the court did not impose a prohibition on new oil and gas investments.”

Dutch climate campaigners, however, argue that Shell is not taking its emissions reduction obligation seriously and seems to be intent on driving more climate breakdown with its continued oil and gas investments.

“We are holding Shell accountable with this case, because the climate crisis will only get worse if Shell simply continues to invest in oil and gas,” Andy Palmen, director of Greenpeace Netherlands, said in a statement.

“It is outrageous that Shell is ignoring the earlier court ruling and going full steam ahead with liquefied gas: LNG,” added Liset Meddens, founder of Fossil-Free NL. “The run on LNG is leaving a trail of destruction: for example, people in the US are struggling with the consequences of fracking, coastal destruction and sickening emissions. Moreover, LNG is a disaster for the climate due to numerous leaks of methane. This appeal is incredibly important to demand justice, not only for a livable planet, but also for the health of all residents around this devastating industry.”

In addition to prioritizing growing its LNG business, Shell has cut spending on renewable energy and has now slightly scaled back its target for reducing the ‘net carbon intensity’ of the energy products it sells – the company is now aiming for a 15-20% reduction by 2030 (its previous target was 20% by 2030). Net carbon intensity, however, is not the same as absolute emissions reductions, meaning that Shell’s overall emissions can increase even as it lowers the carbon intensity of its products by producing more gas for example, since gas emits less CO2 when burned than oil or coal (though fossil gas is comprised almost entirely of methane, a greenhouse gas more potent than CO2). Still, Shell says it strives to achieve net zero emissions by 2050 across its operations and energy products, and says it believes its strategy “supports the more ambitious goal of the Paris Agreement to limit global warming to 1.5°C above pre-industrial levels.” But a new assessment from Carbon Tracker finds that none of the top 25 oil and gas companies (Shell included) are currently aligned with the Paris Agreement goals. That means that Shell is not on track to reduce its entire supply chain emissions by 45% by 2030, as the Dutch district court had ordered.

Milieudefensie will make this clear to the Court of Appeal, and will argue that Shell should not be allowed to evade its emissions reduction obligation.

“Shell is constantly trying to run away from its responsibility to stop dangerous climate change, but they can't bolt from the courtroom,” said Donald Pols, director of Milieudefensie. “Climate scientists warn that we need to act even faster than originally thought. Shell may keep putting up smokescreens, but the facts are crystal clear. Their emissions need to be drastically cut.”

The hearings at the Court of Appeal will take place April 2, April 3, and April 4, and will wrap up next week on April 12.

Human Rights Court Set to Deliver Climate Case Verdicts

Also next week, on April 9, the European Court of Human Rights will deliver its decisions in the three climate cases that the Grand Chamber heard last year. The Chamber heard the first two cases - KlimaSeniorinnen Schweiz and Others v. Switzerland and Carême v. France - on March 29, 2023, and the third one, Duarte Agostinho and Others v. Portugal and 32 Others, on September 27, 2023.

The Agostinho case is particularly groundbreaking because it marks the first time that youth are alleging human rights violations by dozens of European countries in the context of climate change in a single case. If the court finds in favor of the young applicants, then the 33 European countries that are parties to the case (all 27 nations in the EU plus Norway, Russia, Switzerland, Turkey, and the UK) would likely have to reassess their domestic climate policies to ensure they are aligned with what the best available science says is necessary to safeguard human rights. According to the Global Legal Action Network, which is supporting the youth applicants in this case, a positive ruling would “be the equivalent of a legally binding regional treaty compelling the Respondent countries to rapidly accelerate their climate action.”

The case against Switzerland, brought by senior Swiss women who say that inadequate climate action leaves them. More vulnerable to extreme heat events, could similarly see a landmark judgment compelling the Swiss government to accelerate its emissions reduction efforts. According to Greenpeace Switzerland, which is supporting the Swiss women, a ruling in the applicants’ favor would “not only be a groundbreaking success for older women in Switzerland. It would be a victory for all generations, Europe-wide. In order to protect human rights, Switzerland and all Council of Europe states would have to review their climate policy based on the principles developed by the ECHR and, if necessary, strengthen them.”

The ECHR’s decisions will be delivered during a public hearing on April 9 at the Human Rights Building at the court in Strasbourg, France at 10:30am CET.