In 2015 the Hague District Court found itself in the global spotlight when it issued its judgement in Urgenda v The State of the Netherlands ordering the Dutch government to reduce its climate emissions by 25% in 2020. Unsurprisingly, the government appealed this decision all the way to the apex court of the Dutch legal system. But in December 2019, the Dutch Supreme Court affirmed the earlier decision, stating that the Dutch government owed both a civil law duty and a human rights duty to Dutch citizens to reduce its climate emissions.
On 26 May 2021, the Hague District Court again produced shockwaves when it found that oil company, Royal Dutch Shell, was under an obligation to reduce its climate emissions by net 45% in 2030, relative to 2019 levels. In the case, Milieudefensie v Royal Dutch Shell, several Dutch NGOs, including Friends of the Earth and Green Peace, brought a claim against Royal Dutch Shell (‘RDS’), on the basis that its emissions amounted to an unlawful act against them and that accordingly they ought to reduce their emissions in line with the temperature goal set out in the Paris Agreement.
As with the earlier Urgenda decision, the court was directed to consider a duty contained in the Dutch Civil Code. This time the specific provision was contained in Book 6 Section 162 which requires a person responsible for an unlawful (or tortious) act to repair the damage caused by their tortious act. Whilst the Civil code provided the outline of the duty, colour was provided with reference to human rights obligations and soft law instruments, like the UN Guiding Principles on Business and Human Rights. In this way, international obligations were used in both Urgenda and Milieudefensie to shape domestic law.
Whilst the court found that RDS had not in fact breached any civil law duty in respect to Milieudefensie, they nevertheless recognised that ‘tackling dangerous climate change needs immediate attention.’ Later stating that ‘the CO2 emissions for which RDS can be held responsible by their nature pose a very serious threat, with a high risk of damage to Dutch residents… and with serious human rights impacts.’
Consequently, the court found that ‘in formulating the corporate policy of the Shell group’ RDS should reduce their emissions, including those relating to end-users of their products, by 45% in 2030.
Predictably, RDS protested that any reduction imposed on them would be ineffective – they are not the only contributors to climate change and if they are forced to make reductions others will simply fill the gap they leave, thus nullifying the result of the order.
On this the court was unpersuaded, stating that ‘every emission of CO2 and other greenhouse gases, anywhere in the world and caused in whatever manner, contributes to this damage and its increase…. The non-disputed circumstance that RDS is not the only party responsible for tacking dangerous climate change…does not absolve RDS of its individual partial responsibility to contribute to the fight against dangerous climate change according to its ability.’
In 2015 The Dickson Poon School of Law, in collaboration with the UKSC and FCO, hosted a symposium with judges from around the world to discuss how they were dealing with the issue of climate change in their jurisdiction.