{"id":14597,"date":"2021-06-25T08:00:05","date_gmt":"2021-06-25T06:00:05","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=14597"},"modified":"2021-06-25T21:59:20","modified_gmt":"2021-06-25T19:59:20","slug":"reducing-is-caring","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/reducing-is-caring\/","title":{"rendered":"Reducing is Caring"},"content":{"rendered":"

The \u2018Shell Climate Case\u2019, on which the District Court of the Hague ruled<\/u><\/a> on 26 May 2021, may well herald a new era for climate change litigation. The Dutch court broke new ground in finding that Royal Dutch Shell (\u201cRDS\u201d) holds a legal obligation to play its part in combating climate change.\u00a0It ordered the fossil fuel giant to reduce the CO2 emissions resulting from its global operations by net 45% by 2030 compared to 2019 levels, thereby establishing a reduction obligation similar to the one imposed upon the Dutch state in the Urgenda<\/u> case<\/u><\/a>. The climate campaigners behind the case rightly welcomed the verdict as a \u2018historic victory\u2019<\/u><\/a>.<\/p>\n

With this blog post, we contribute to the growing number of commentaries (see among many here<\/u><\/a>, here<\/u><\/a>, and\u00a0here<\/u><\/a>) by highlighting how this landmark\u00a0decision reveals a perhaps surprising aptitude of the language and logic of (Dutch) tort law for addressing complex global issues in court.<\/p>\n

Translating climate change impact into tort law<\/strong><\/p>\n

The Shell Climate Case was brought by Dutch environmental NGO Milieudefensie along with six other NGOs and over 17,000 individual co-plaintiffs. They were represented by Roger Cox, the attorney who also represented Urgenda. They sought to hold RDS, as a Dutch-based major player on the global fossil fuel market whose CO2 emissions exceed<\/u><\/a>\u00a0those of many states, liable under Dutch civil law for its contribution to climate change.\u00a0In order to do so, they needed to translate\u00a0an issue as complex and global as\u00a0the fossil fuel industry\u2019s contribution to climate change into the language of domestic tort law.<\/p>\n

The Dutch general provision on tort or delict (art. 6:162 Dutch Civil Code<\/u><\/a>) provides, in a particularly open<\/u><\/a> manner, that a tortious or unlawful act includes, among other things, \u2018an act or omission in violation of what is societally accepted according to unwritten law\u2019. On the basis of this \u2018unwritten standard of care\u2019, Milieudefensie et al. argued that RDS has an obligation to contribute to mitigating climate change by reducing its own CO2 emissions in line with the internationally agreed\u00a0Paris targets<\/u><\/a>.<\/p>\n

For the interpretation of the unwritten standard of care, the Court may rely on a wide range of sources which it considers to reflect\u00a0a form of societal consensus. In this case, these included international human rights law, soft law standards, and climate science, which led the Court to find that RDS indeed has an obligation to reduce its CO2 emissions. It\u00a0argued that RDS has an \u2018individual responsibility\u2019 to reduce the emissions over which it has control and influence (\u00a74.4.<\/u>13<\/u>, \u00a74.4.<\/u>52<\/u><\/a>), which translates into an \u2018obligation of result\u2019 with regard to the Shell group\u2019s activities, and a \u2018significant best-efforts obligation\u2019 with regard to the Shell group\u2019s business relations, including end users\u00a0(\u00a74.1.4<\/u><\/a>). Business relations and end users also have an individual responsibility to reduce their emissions, but this does not remove or reduce RDS\u2019s responsibility (\u00a74.4.24<\/u>).<\/p>\n

Fascinatingly, the Court awarded significant prominence to international human rights law in interpreting the domestic tort provision, even though it highlighted that human rights do not apply directly to corporations. Human rights play a key role in establishing \u2018widespread international consensus\u2019 in two respects. First, the Court\u00a0argued that human rights should be \u2018factored in\u2019 when interpreting Shell\u2019s unwritten duty of care towards Milieudefensie et al., \u2018due to the fundamental interest of human rights and the value for society as a whole they embody\u2019 (\u00a74.4.9<\/u><\/a>). Following from this, it\u00a0found\u00a0consensus that the right to life and the right to respect for private and family life enshrined in the ECHR and ICCPR \u2018offer protection against the consequences of dangerous climate change due to CO2-emissions-induced global warming\u2019 (\u00a74.4.10<\/u><\/a>). Second, the Court\u00a0drew\u00a0on the non-binding UN Guiding Principles on Business and Human Rights and OECD Guidelines for Multinational Enterprises to establish that \u2018it is universally endorsed that companies must respect human rights\u2019 (\u00a74.4.14<\/u><\/a>). The Court\u2019s extensive use of human rights to inform its interpretation of the domestic tort provision demonstrates how\u00a0tort law may be capable of\u00a0concretizing\u00a0the human rights responsibilities of corporate actors in a way that the state-centric human rights regime has been unable.<\/p>\n

Territorially-defined climate interests<\/strong><\/p>\n

Addressing Shell\u2019s contribution to climate change in tort law was facilitated by the company\u2019s structure.\u00a0Like most oil <\/u>and<\/u> gas <\/u>\u201csupermajors\u201d<\/u><\/a>, Shell\u00a0is a vertically integrated enterprise. This means that its supply chain \u2013 from exploration to distribution and trading \u2013 is integrated and owned by RDS itself, which as the top holding company is the direct or indirect shareholder in the more than 1,100\u00a0operating and service companies which make up the Shell group. As RDS sets the corporate policy for the entire Shell group, the Court found that this \u2018policy-setting influence\u2019 gave it \u2018far-reaching control and influence\u2019 over the group\u2019s activities and, therefore, its emissions (\u00a74.4.<\/u>18<\/u>, \u00a74.4.2<\/u><\/a>3<\/u>). Even beyond formal corporate ties, RDS also has policy-setting influence on a vast range of suppliers and other entities falling within its supply chain.\u00a0In this way, Shell\u2019s business model facilitated the Court\u2019s reasoning to extend the reduction obligation across its entire corporate group and supply chain.<\/p>\n

Shell\u2019s structure was furthermore relevant for determining the applicability of Dutch law.\u00a0Article 7 Rome <\/u>II<\/u><\/a>\u00a0<\/u>allows the plaintiff to base a\u00a0tort claim concerning environmental damage on \u2018the law of the country in which the event giving rise to the damage occurred\u2019.\u00a0While Shell argued that this \u2018event\u2019 were its CO2 emissions, which occur in a large number of countries, Milieudefensie sought to connect the \u2018event\u2019 specifically to the Netherlands, so it could rely on the Dutch tort provision. It argued, and the Court\u00a0agreed,\u00a0that RDS\u2019s\u00a0act of adopting the Shell group\u2019s corporate policy in itself constituted\u00a0one of multiple causes of the damage.\u00a0As RDS is headquartered in the Netherlands, this makes Dutch law applicable (\u00a74.3.6<\/u><\/a>). The reason why this reasoning held was precisely <\/em>Shell\u2019s integrated, highly hierarchical business model.<\/p>\n

Relatedly,\u00a0the Court only admitted the class action brought by Milieudefensie and other NGOs representing\u00a0the interests of current and future generations of\u00a0<\/em>Dutch and Wadden region residents, deemed \u2018suitable for bundling\u2019 (under art. 3:305a Dutch Civil Code<\/u><\/a>), while rejecting for equal and opposite reasons the claims on behalf of the world\u2019s population\u00a0(\u00a7\u00a74.2.2-4<\/u><\/a>). Despite the multi-jurisdictional reach of the obligation eventually set upon RDS, this allowed the Court to 1) individualize the claim, and 2) avoid presenting its decision as a form of exterritorial adjudicative jurisdiction. In other words, by limiting the claim to\u00a0\u2018territorially-defined climate interests\u2019, the\u00a0<\/em>Court\u00a0not only overcame one of the weaknesses of private law-based climate change litigation \u2013\u00a0the difficulty to individualize the events giving rise to the damage and, relatedly, the plaintiffs\u2019 interests\u00a0\u2013 but potentially turned it into a strength. Indeed, the ubiquity of\u00a0the \u2018events giving rise\u2019 to climate-related damages\u00a0could\u00a0allow for the emergence of \u2018territorially-defined climate interests\u2019\u00a0everywhere<\/em>. Based on the Court\u2019s reasoning, an NGO representing the climate interests of \u2013 say \u2013 Tuvalu\u00a0residents could also have started proceedings against RDS before a Dutch court under Dutch law. The same would be much more complicated for relatively localized events, such as an oil spill or labour rights violations, which are typical of transnational business and human rights litigation, and for which jurisdictional issues such as extraterritoriality and\u00a0forum non <\/em>conveniens<\/em>, as well as substantive issues\u00a0such as\u00a0piercing the corporate veil form common hurdles. In this sense, the decision highlights potential advantages of corporate climate<\/em>\u00a0<\/em>litigation, compared to other forms of transnational corporate (human rights) litigation.<\/p>\n

Tort law logic and the climate emergency<\/strong><\/p>\n

The logic underlying the interpretation of Dutch tort law also proved to be surprisingly apt at highlighting the urgency of fighting climate change. For the interpretation of the unwritten standard of care, the court balanced 1) the mitigation of risk of harm\u00a0with 2) the burden precautionary measures impose, e.g. financially\u00a0(based on the doctrine of hazardous negligence, see also the first instance judgment<\/u><\/a> in Urgenda). The higher the likelihood and gravity of the risk, the higher the precautionary measures that may be expected to avoid the harm, and the less important the cost of taking those measures becomes.<\/p>\n

This means that, in the face of the grave environmental and human rights risks posed by climate change, commercial considerations fade into the background. For the Court, \u2018the compelling common interest that is served by complying with the reduction obligation outweighs the negative consequences RDS might face due to the reduction obligation and also the commercial interests of the Shell group, which are served by an uncurtailed preservation or even increase of CO2-generating activities. Due to the serious threats and risks to the human rights of Dutch residents … private companies … may also be required to take drastic measures and make financial sacrifices to limit CO2 emissions to prevent dangerous climate change\u2019 (\u00a74.4.54<\/u><\/a>). As such, whereas the reframing of transnational human rights issues in the limited vocabulary of tort law can be unsatisfactory \u2013 think of \u2018torture as tort\u2019<\/u><\/a> \u2013 in the case of climate change, the language and logic of tort in fact turned out to offer a particular lucidity.<\/p>\n

Imagining a global climate standard of care<\/strong><\/p>\n

While we recognize that the ruling raises numerous thorny questions, and that it remains to be seen what will happen on appeal, we think there are various ways in which this ruling could form part of\u00a0the foundation for a \u2018global climate standard of care\u2019\u00a0which\u00a0establishes a responsibility for both public actors, such as in Urgenda, and private actors, such as in this case,\u00a0to play their part in mitigating climate change.<\/p>\n

A first possibility would consist in a de facto<\/em> territorial extension of the standard of care through its application by Shell and other companies \u2013 especially those based in the EU \u2013 throughout their corporate groups and supply chains. Under this scenario, EU-based multinational enterprises would work as indirect vectors of a \u2018global climate law\u2019. This would be an example of what Anu Bradford has popularised as the Brussels effect<\/u><\/a>:\u00a0the EU\u2019s power to shape the global business environment thanks to the sheer weight of its market, especially through standards in areas such as competition regulation, consumer health and safety, or environmental protection.<\/p>\n

A second form would consist in the application in other domestic legal systems of the same reasoning developed by the\u00a0Dutch court. While the Dutch provision is peculiar for its openness, the general \u2018do no harm\u2019\u00a0principle\u00a0typical of civil law systems may form a basis to extend this reasoning beyond the Netherlands. Even in common law systems, which normally require a specific cause of action to bring a tort claim, this construction does not seem completely out of reach (see e.g. Nevsun<\/em><\/u> v Araya<\/em><\/u><\/a>\u00a0on the creation of new nominate torts\u00a0and\u00a0Justice Sotomayor\u2019s dissenting opinion in Jesner<\/em><\/u> v Arab Bank<\/em><\/u><\/a>).<\/p>\n

Thirdly, and more hypothetically, a \u2018climate standard of care\u2019 in line with the Shell Climate Case may over time turn into a general norm (as a customary rule or general principle in the sense of Article 38(1)(c) ICJ Statute<\/u><\/a>). More realistically, the \u2018climate standard of care\u2019 established by the Dutch court\u00a0adds to the\u00a0growing <\/u>use of due diligence<\/u><\/a>\u00a0to establish additional obligations in the field of international environmental law \u2013 this time also upon private actors.<\/p>\n

 <\/p>\n

The indicated order of authors is alphabetic. <\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The \u2018Shell Climate Case\u2019, on which the District Court of the Hague ruled on 26 May 2021, may well herald a new era for climate change litigation. The Dutch court broke new ground in finding that Royal Dutch Shell (\u201cRDS\u201d) holds a legal obligation to play its part in combating climate change.\u00a0It ordered the fossil […]<\/p>\n","protected":false},"author":15,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[6844,6770],"article-categories":[6000],"doi":[],"class_list":["post-14597","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-angelo-jr-golia","authors-anneloes-hoff","article-categories-article"],"acf":{"subline":"The Dutch climate case against Shell"},"meta_box":{"doi":"10.17176\/20210625-192942-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/14597","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/15"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=14597"}],"version-history":[{"count":2,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/14597\/revisions"}],"predecessor-version":[{"id":14602,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/14597\/revisions\/14602"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=14597"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=14597"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=14597"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=14597"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=14597"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=14597"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}