What is at stake in the climate case against Shell?

Shell was less enamored with it. This week the appeal began at the Court of Appeal in The Hague. At the UvA, where the originally Dutch Shell is often a topic of conversation in ad hoc dialogues and demonstrations, this court case will presumably be followed with great interest. What makes the case so special?

“If you were to ask people from all over the world what the most important 20 climate lawsuits are, there is a good chance they will mention this case against Shell,” says Christina Eckes, Professor of European Law at the UvA. The case is also well known in Germany, where Eckes is from. “We have already had a number of cases in Germany referring to the Shell climate case.”

There is also a lawsuit against the car manufacturer Volkswagen brought by the environmental organization Greenpeace. There, too, the reduction of CO2 emissions is central, and there, too, they cite the duty of care of large companies regarding the climate. “The violation of such a duty was also the basis for the conviction of the oil company Shell (...) by the court in The Hague,” Greenpeace argues in its complaint before the German court.

This duty of care for companies took legal shape in the Netherlands in the 1960s through the so-called Kelderluik judgmentAn employee of Coca-Cola left the cellar hatch open at a café in Amsterdam when he refilled the stock. A customer subsequently fell into the hole and suffered injuries. The court ruled that Coca-Cola had breached its duty of care because its employee had allowed a dangerous situation to arise with his negligent behavior.. To flesh out this “duty of care for companies,” the court in the Shell case now cites the human rights contained in the Universal Declaration of Human Rights. If a company emits a significant amount of greenhouse gases, this leads in principle to more climate disasters and thus more deaths. A company thus violates the fundamental human right to life and family life, the court reasoned.

It is striking that the court also included the emissions of Shell’s consumers in its consideration. If they drive with Shell gasoline or fly with the oil company's kerosene, then Shell is responsible for the emissions that occur in the process.

But defining the duty of care by referring to the company's impact on the climate crisis and human rights enforcement is also striking in itself. Originally, human rights were intended to protect citizens from the actions or inactions of states, as in the renowned Urgenda case five years ago in which the foundation of the same name successfully managed to force the Dutch government to do more against greenhouse gas emissions.

This must apply equally to companies in the climate crisis, Eckes believes, “because we need companies to bring down emissions.” In addition, the need for this has been confirmed by the United Nations Environmental Program and IPCC climate reports.

Shell is coming out against this. While acknowledging the importance of climate action, the oil company argues that climate disasters have multiple causes and instigators. You cannot then hold one company responsible for greenhouse gases that hinder the right to (family) life, Shell argues in this case. Eckes finds that argument “unconvincing”: “You can very well calculate scientifically how many emissions can be traced to Shell and thus what share the company has in the climate crisis.”

She therefore does not expect the court to dismiss Shell's duty of care to limit climate damage. Indeed, she says this case is a prelude to many other climate cases against companies in Europe. “We have already seen this not just in Germany, but also in France and England. There is also the example of the climate case against the Swiss cement company Holcim brought by residents of the Indonesian island of Pulau Pur.”

Or take the climate case against the ING bank, also brought by Milieudefensie - a follow-up to the earlier success against Shell. That case is similar in part to the climate case against Shell, in that ING is being looked at in terms of the CO2 emitted by customers that they finance.

“I think we are going to increasingly experience the impact of climate change and that also means more people are going to demand that we do something about it,” Eckes concludes. Thus, while the Shell climate case is special, it is not unique – not anymore.