I get so excited when I read new legal judgments! 🤩 Even more so when it’s on such an important topic, that will have a ripple effect globally. So Tuesday was a big day!
We wrote about the Hague district court’s decision in Milieudefensie and Ors. v Royal Dutch Shell plc when it came out in 2021. See here and here.
In short, the court in 2021 used both Dutch tort law and international human rights law to declare Shell responsible for the human rights impacts of its annual COâ‚‚ emissions globally. And Shell was ordered to reduce emissions by 45% by 2030, relative to 2019 levels.
On Tuesday, the Court of Appeal overturned that injunction, so Shell is no longer required to reduce emissions by 45%. But there’s plenty in the judgment that solidifies a new dawn for companies when it comes to climate litigation. 🎇
The court found that “there can be no doubt that protection from dangerous climate change is a human right.” So whoever is still doubting the connection between climate change, and a company’s human rights responsibilities, say no more.
The court relied on the judgments that we’ve summarised in the past for you - including the Urgenda 2019 decision by the Dutch Supreme Court and the recent decision by the European Court of Human Rights in KlimaSeniorinnen, as well as UN reports and resolutions. The court also considered soft law instruments (yes, the famous UNGPs! But also the OECD Guidelines and the UN Global Compact). And after this analysis, found that companies have their own responsibility to take appropriate measures to protect against dangerous climate change. 💪🏻
Yes, we agree. We also agree with the court that the “climate problem is the greatest issue of our time.”
The court found that under EU law, Shell does not have an absolute reduction obligation of 45%. Companies “are free to choose their own approach to reducing their emissions in the – mandatory – climate transition plan as long as it is consistent with the Paris Agreement’s climate targets.” So, companies do need to reduce their emissions. But how they do it is not set in stone.
Take the upcoming EU Corporate Sustainability Due Diligence Directive: there is a new obligation to adopt, and put into effect, a transition plan for climate change mitigation. Companies may include an emissions reduction goal in their climate transition plan, but have some lee-way, depending on their individual circumstances.
So, bottom line, always read past the headlines with legal judgments. This is not as big a setback as it might seem. There is plenty in here which demonstrates the court’s understanding of the responsibility of companies when it comes to climate change. And companies now need to consider both EU law (including the upcoming EU CSDDD), as well duties of care grounded in human rights law.
So, rather than waiting to be sued, better to get ahead and take these legal developments seriously. In addition to any human rights argument, there is a very strong business and legal case for Paris Agreement-aligned transition plans, and to consider human rights and just transition in the process. ✨
Switching gears since it’s the weekend starting—I watched One Life yesterday and absolutely loved it! It’s such a powerful reminder of what a determined group of people can achieve when they refuse to take no for an answer. Truly inspiring. It also captures the emotional contrast of knowing your actions make a difference, but not at the scale of the problem itself. I think that’s something all of us can relate to.
Anna đź’«
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