{"id":351215,"date":"2024-11-14T16:56:33","date_gmt":"2024-11-14T15:56:33","guid":{"rendered":"https:\/\/climatescience.press\/?p=351215"},"modified":"2024-11-14T16:56:35","modified_gmt":"2024-11-14T15:56:35","slug":"the-climate-case-of-the-century","status":"publish","type":"post","link":"https:\/\/climatescience.press\/?p=351215","title":{"rendered":"The climate case of the century"},"content":{"rendered":"\n
\"\"<\/figure>\n\n\n\n

<\/p>\n\n\n\n

From Climate Etc.<\/a><\/p>\n\n\n\n

by Lucas Bergkamp<\/p>\n\n\n\n

On the 12th of November, the Hague Court of Appeal ruled in the \u201cclimate case of the century\u201d that Milieudefensie (\u201cFoE\u201d) filed against Shell in 2019. FoE demands that Shell reduce emissions throughout the entire chain by at least 45% by 2030. The foundation \u201cMan & Environment\u201d (M&E) joined the case to represent the interests of Dutch citizens.<\/p>\n\n\n\n

The Court of Appeal was not impressed by FoE\u2019s \u201cgo green or go extinct\u201d rhetoric and rejected its claims.  Nevertheless, the Court of Appeal\u2019s ruling leaves much to be desired and did not eliminate the threat of activist NGOs launching climate cases to effect \u201csystem change,\u201d i.e., set aside democracy, subordinate citizens and destroy the economy.<\/p>\n\n\n\n

Climate science<\/strong><\/p>\n\n\n\n

Although M&M had offered strong rebuttals with expert reports, the Court of Appeal uncritically adopted many of FoE\u2019s 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 alleged \u201cconsensus\u201d that would emerge from their reports, in particular the SPMs.<\/p>\n\n\n\n

The Court not only took the IPCC reports as irrebuttable proof, but also attributed normative force to them. For example, the Court ruled that climate scientists have determined that the average temperature on earth may not<\/em> rise by more than 1.5 degrees. In doing so, the Court, like the Dutch Supreme Court, ignored that science cannot set norms and that scientists are not authorized to set social standards. The Dutch judiciary\u2019s scientistic tendency is extremely worrisome and does not bode well for future climate-related judgments.<\/p>\n\n\n\n

Dangerous climate change<\/strong><\/p>\n\n\n\n

A case in point, the Court arrives at the alarmist conclusion that \u201cthe climate problem is the biggest problem of our time\u201d and that the danger of climate change is great and even \u201clife-threatening\u201d. Based on the non-factual findings of fact and obligatory references to the Paris climate agreement, the Urgenda judgment and the Klimaseniorinnen<\/em> ruling of the European Court of Human Rights, the Court confirmed a right to protection against \u201cdangerous climate change.\u201d<\/p>\n\n\n\n

\u201cProtection against dangerous climate change,\u201d the Court says, \u201cis a human right,\u201d without any caveats or qualifications. Obviously, realizing this human right will be at the expense of all kinds of other human rights and interests, such as the right to (or interest in) reliable and affordable energy. Inevitably, the right to protection against \u201cdangerous climate change\u201d will harm the realization of other \u201csustainable development goals.\u201d Although M&E had flagged these kinds of trade-offs extensively, the judges did not bother to deal with these implications of climate morality.<\/p>\n\n\n\n

Dog whistle<\/strong><\/p>\n\n\n\n

This new human right must be respected not only by states, but also by large corporations, the Court found.  In civil liability law, this right translates into a duty of care for companies. According to the Court, the Paris goals require measures to reduce the demand for fossil fuels and to limit the supply of fossil fuels. Oil and gas companies should therefore consider \u201cthe negative impact on the energy transition when investing in the production of fossil fuels.\u201d<\/p>\n\n\n\n

With this line of reasoning, the judgment suggests that \u201csaving the climate\u201d legitimizes creeping expropriation of oil and gas companies. This dog whistle did not escape the attention of FoE\u2019s lawyer, who has hinted at further legal proceedings to prevent the development, expansion and financing of oil and gas production, referring to forthcoming climate finance case against ING, the largest Dutch bank.<\/p>\n\n\n\n

Reduction Percentage<\/strong><\/p>\n\n\n\n

FoE lost the case based on two lucid moments of the judges. FoE had demanded that Shell reduce scope 1, 2 and 3 emissions. With regard to scope 1 and 2, the Court of Appeal ruled that Shell had committed itself to this objective and is on track to achieve it, so that claim was rejected.<\/p>\n\n\n\n

With regard to scope 3 emissions, the Court of Appeal concluded that neither the law nor climate science sets specific reduction standards for a company such as Shell. The 45% invoked by FoE, the Court found, is only an \u201caverage global reduction in all sectors\u201d that does not apply to each country and each business sector individually. Indeed, this point had been well explained in M&E\u2019s submissions to the Court.<\/p>\n\n\n\n

In this regard, the judgment serves as a dialogue between the courts and the climate movement. Climate science therefore knows what is expected of it: set reduction standards for the oil and gas sector and the courts (at least, the Dutch courts) will enforce them.<\/p>\n\n\n\n

Effectiveness<\/strong><\/p>\n\n\n\n

The Court of Appeal also undermined FoE\u2019s lawsuit by finding that the reduction order sought by FoE would be ineffective. This too had been explained in detail in M&E\u2019s expert opinions. As the Court confirmed, there is no reason to believe that a reduction obligation imposed on a specific company will have any positive effect: if Shell sells less oil and gas, other suppliers will simply take its place and any \u201cclimate gain\u201d will be illusory.<\/p>\n\n\n\n

Progressive realization<\/strong><\/p>\n\n\n\n

In line with the human rights theory of \u2018progressive realization\u2019, the court-made right to protection against \u2018dangerous climate change\u2019 is slowly but surely being realized. Two steps forward, one step back: first governments, then companies, then a specific reduction percentage, and then no such percentage.<\/p>\n\n\n\n

This week, it was a step back, but the District Court\u2019s verdict in first instance has already had its effect. With that verdict in hand, many other lawsuits have been launched and the climate movement has been able to persuade the European Union to oblige companies to implement a \u201cclimate transition plan\u201d in accordance with 1.5 degrees. Judges have learned rapidly how to play the political climate game.<\/p>\n\n\n\n

Threat remains<\/strong><\/p>\n\n\n\n

This is the first climate ruling in the Netherlands that is favourable to citizens who are suffering under the ever-rising prices of energy and other products. M&E\u2019s intervention has had its effect, as it demonstrated for the Court that there are other interests affected by these kinds of cases and that other valid perspectives on the issues generate dramatically different conclusions. Moreover, as the main reasons for denying FoE\u2019s claims are rather factual in nature, it will be difficult to find a good angle to appeal the ruling to the Supreme Court, which review only points of law.<\/p>\n\n\n\n

A battle has been won, but the climate war will rage on. Activist NGOs will be able to derive new legal bases from the Court\u2019s ruling for further climate cases.<\/p>\n\n\n\n

NGOs for the people<\/strong><\/p>\n\n\n\n

To prevent that democracy is set aside and the people are subordinated to climate activists supported by the judiciary, interventions by NGOs that are sympathetic to the interests of citizens will continue to be essential. There is much enthusiasm around this idea, but the financing of the activities continues to be the biggest challenge.<\/p>\n\n\n\n

All in all, the ruling of the Hague Court of Appeal is an important first step towards restoring rationality and balance in judicial decision-making in climate cases.  The rejection of the case against Shell will have ripple effects on many other climate cases throughout the world, and should cause the EU to rethink the obligation for companies to implement a climate transition plan consistent with 1.5C.<\/p>\n\n\n\n

In all things climate, to use a Chinese proverb, \u201cthe journey of a thousand miles begins with one step.\u201d<\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

On the 12th of November, the Hague Court of Appeal ruled in the \u201cclimate case of the century\u201d that Milieudefensie (\u201cFoE\u201d) filed against Shell in 2019. FoE demands that Shell reduce emissions throughout the entire chain by at least 45% by 2030. The foundation \u201cMan & Environment\u201d (M&E) joined the case to represent the interests of Dutch citizens.<\/p>\n","protected":false},"author":121246920,"featured_media":351217,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_coblocks_attr":"","_coblocks_dimensions":"","_coblocks_responsive_height":"","_coblocks_accordion_ie_support":"","_crdt_document":"","advanced_seo_description":"","jetpack_seo_html_title":"","jetpack_seo_noindex":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[1],"tags":[691831480,691831479,691818228,691831477,691831478,691819831],"class_list":{"0":"post-351215","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","6":"hentry","7":"category-uncategorized","8":"tag-climate-transition-plan","9":"tag-dutch-supreme-court","10":"tag-fossil-fuels","11":"tag-hague-court-of-appeal","12":"tag-milieudefensie-foe","13":"tag-shell","15":"fallback-thumbnail"},"jetpack_publicize_connections":[],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/climatescience.press\/wp-content\/uploads\/2024\/11\/0shell_12345_20221230162037_reuters.jpg?fit=1200%2C800&ssl=1","jetpack_likes_enabled":true,"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/paxLW1-1tmL","jetpack-related-posts":[{"id":234892,"url":"https:\/\/climatescience.press\/?p=234892","url_meta":{"origin":351215,"position":0},"title":"Clintel\u2019 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