In this episode, we will discuss the role of court cases and strategic litigation as tactics to counter the power of fossil fuel companies at large, and Shell in particular. How effective is litigation in actually holding fossil fuel companies accountable and preventing disastrous climate breakdown? Can they account for the international nature of Shell and its contributions to global emissions? Are court cases a key tool to move towards a Future Beyond Shell?
This past year, a major court case against Shell, known as the klimaatzaak or climate case in the Netherlands, made headlines around the world as it ruled that the oil and gas company must reduce its carbon emissions by 45% from 2019 levels by 2030. This was, to our knowledge, the first time a court case held a company responsible in the future. Around the world, similar climate cases have cropped up against governments, fossil fuel companies and other organizations responsible for the climate crisis; more than 1500 climate-related court cases have been brought worldwide.
Our guest in this first episode of two on court cases is Nine de Pater from Friends of the Earth Netherlands, known as Milieudefensie in the Netherlands.
Show Notes
Some more info on the court case brought by Milieudefensie here: https://en.milieudefensie.nl/climate-case-shell
And for the law nerds, more detail: http://climatecasechart.com/climate-change-litigation/non-us-case/milieudefensie-et-al-v-royal-dutch-shell-plc/
Nine mentions Code Rood, a grassroots organization in the Netherlands that organizes civil disobedience actions against the fossil fuel industry: https://code-rood.org/en/what-is-code-rood/
The UN Guiding Principles reporting framework that corporations are to follow (UNGP): https://www.ungpreporting.org/
Transcript
MS: In this two part episode, we will look at the role of court cases and strategic litigation as tactics to counter the power of Shell. How effective is litigation in actually holding fossil fuel companies accountable? Can court cases help us cut emissions and repair historical environmental injustices like pollution in Ogoniland in Nigeria? Can they shift power to oppressed, often racialized communities? Together with our guests, we will assess whether court cases are generally ‘too little, too late,’ to prevent disastrous climate breakdown or whether they have a genuinely transformative power. Are they a key tool to move towards a Future Beyond Shell?
A: In this first episode on court cases, we will be talking to Nine de Pater from Friends of the Earth Netherlands, lead campaigner on the historic Dutch climate case against Shell. The court ruled in their favor at the beginning of this year which is exciting news! Nine, thanks so much for being here. Could you tell us a little bit more about the climate case that Friends of the Earth Netherlands has brought against Shell? Why did you bring the court case? And what were you seeking to address?
Nine: Yeah, already five years ago, this idea started or there was some talk about how we can really force Shell to reduce its emissions to really align its business model with the Paris agreement. One thing that we noticed is that it is really difficult to keep multinational corporations accountable for their CO2 emissions. Shell is one of the biggest. They are always in the top 10 lists of biggest CO2 emitters historically, but also annually. And we’ve tried campaigns, we’ve tried lobbying, we’ve tried to force them to change through government policies but all of that didn’t really work. Shell’s emissions were only going up. Shell was not really impressed by all of these campaigns. So at some point we felt the last resort would be this court case. This was about five years ago. And this problem that we noticed, is the fact that Shell or also other multinational corporations are not really bound to the climate policies that individual countries make. That’s what we call a governance gap. So the gap between the power of individual countries and the power of these multinationals that can really avoid policies in the countries because all of their activities are spread all over the world so they can easily avoid climate action. And we thought, okay, let’s try to go through court and force Shell to reduce its CO2 emissions. So that’s what we did. We started in 2018. And, well, a couple of years later, we were successful. And basically, what we demanded from Shell is that the company reduced all of its CO2 emissions by 45%, in 2030, not just the emissions from production, but also the emissions from their products, so what this the CO2 that is emitted when you burn oil and gas from Shell.
A: Thanks, Nine. that’s a great overview and you also told us a little bit about what the considerations were in bringing the court case, which I think was really important to highlight. Could you tell us a little bit about the current state of the court case? There was a ruling recently and what are the further developments?
N: On the 26th of May of this year, there was the ruling, and the ruling was really impressive. The judge almost did disagree with all the arguments from Shell, and agreed with most of our arguments. So I think that was already very impressive and of course that we’ve won. That’s the best part of it. So that was in May 26. And then after that, Shell appealed. So we are currently preparing for the appeal, which will take a couple of years again. And I think right away let me mention the downside of a court case, namely that it takes a very long time. Currently, we are in the process of regrouping, doing a lot of research to be prepared for the appeal. But at the same time, Shell is not allowed to wait. So that’s an important part of the verdict that Shell was forced to directly start. So they’re not allowed to wait for after the appeal to start reducing their emissions. They already have to do that now. So besides preparing for the appeal, we are also preparing on how we can increase pressure on Shell to actually start doing what they have to do.
A: That’s really interesting. So they’re bound immediately. So I’m wondering, does that tie into how successful you think the court case has been? Do you think it’s been effective thus far in achieving your goals?
N: Yeah, I think a court case always, well, at least strategic litigation like we’ve been doing, always has two goals. So there’s the goal, of course, of winning the case itself against your opponents. In our case, it was Shell. But there’s also always this part of influencing the public opinion, influencing the debate that is going on about responsibility. And one of the things that we noticed from the beginning is that there is a shift going on, on how people look at Shell. And, of course, Friends of the Earth Netherlands is not the only party that is criticizing Shell and is campaigning about Shell. I mean Code Rood is also doing its part and many more movements, so, all together, I think we are really achieving a shift in how people are looking at Shell. And we’ve been also monitoring this, we’ve done several opinion research on how people are looking at Shell, how they’re looking at big polluters and their responsibilities, and we really see a shift in public opinion. So besides that we won this court case, I think we also want a big part of the public debate and that’s as important as the court case itself.
A: Definitely, I think that’s a really important point. And the sort of aftershock of the court case ruling also was pretty worldwide, I think. So people across the world were thinking about this. So one more thing I’m wondering about is, you mentioned the limitations in terms of how long it takes to litigate… What are other limitations in terms of achieving your larger goals through strategic litigation?
N:I think first of all, strategic litigation needs a lot of courage because you’re exploring a new field of jurisdiction. So it was the first time ever that a big oil major was held accountable for its CO2 emissions in a way that we did it. So that’s a difference with other court cases against oil majors, where they usually ask for compensation for damages. And we did not do that. We asked for a change in future policy. So that was a first, so there was nothing really to build on, there was no precedent from other court cases that we could use that we could compare to our case. So first of all, taking that step is already a big one and our lawyer, well luckily, he did that. And at the same time, it also means that you have to do a lot of research, because all of the research we had to do for the first time. And yeah, time and capacity, besides money is one of the biggest challenges in these kinds of court cases. It asks a lot from lawyers. So that’s one of the challenges that as an organization really have to be aware of when you start a court case. But another, I think, even bigger problem of strategic litigation is the time that it takes. I mean, the climate crisis is very urgent, we don’t really have the time anymore to spend years on court cases. So hopefully, our court case will be the longest one. We know and from all the information and all the arguments that we gathered, other courts cases can get to their winning or to the end much quicker, or court cases are not even necessary anymore, because companies get afraid or policy makers learned their lesson. So I think one of the biggest problems is the time it takes to do a court case.
MS: Yeah, I think what I personally or many found groundbreaking about this case, is what you mentioned already, that it’s sort of future oriented. So we know a lot of court cases, particularly against Shell, that sort of seek justice for past harms, oil spills, or the killing of the Ogoni 9. But yeah, what is striking with this Dutch climate case is that it’s holding Shell accountable for future emissions. So maybe you can elaborate a little bit more how unusual this is, and maybe also how relevant this aspect is in the quest of really pressuring corporations to move away from fossil fuels.
N: Yeah, Shell’s core business is polluting our planet through pumping up oil and gas and producing fossil fuels. But it’s very clear the core of their business is to cause dangerous climate change. And by asking them for compensation for their damages, that might cause a little bit of pain, maybe a little bit of damage to their image, but it’s not attacking their core business itself. So what we did was by demanding to reduce their CO2 emissions we really took what is the core business of Shell and tried to change that. So therefore, this hurts so much more for a company. And of course, it doesn’t really directly give those victims from climate change the compensation that they deserve. So I think these compensation cases are still very important, especially for people in the Global South that need reparations that are directly affected by Shell’s activities. But this is kind of a preventive measure because if Shell is continuing doing what they’re doing now it will only get worse and worse. And what makes it very interesting is that Shell as a multinational corporation is not just active in one country that has a lot of daughter companies in all these different countries. And usually they try to hide behind these subsidiaries, these daughter companies. And that’s also what they tried to do in our case. They said, well, headquarters are not responsible for these CO2 emissions. It’s all these different companies that are responsible. So you have to sue all of them, you have to go to all the different countries, which means hundreds of court cases all over the world. And then we said, no, you are responsible for making the policies that cause dangerous climate change. These policies decide whether or not these local companies will be producing fossil fuels. So the climate policy is made in the headquarters. And so that’s another groundbreaking aspect. There are many, many specific legal things that I could point out but this is a very important one, because it was also the first time that this happened, that it was really acknowledged by the judge that the headquarters is responsible for the climate activities or the damages that are caused by the emissions from the daughter company.
MS: What you are sort of describing, this sort of shell game of corporations trying to hide behind the subsidiaries, I think it is a very common tactic. So I’m curious to hear a little bit more why you.. um, I think it is striking or very, indeed groundbreaking, that Shell has been held accountable where its parent company is located. So what do you think were the conditions in the Netherlands that made this possible?
N: In the Netherlands, we know this law, that is called a duty of care. And a duty of care is an unwritten norm, that judges can apply in all different kinds of situations. But what it basically means in non legal language is that one party is not allowed to cause serious harm or create a danger for another party, if they can take preventive measures. So what we basically, in a couple of hundreds of pages, argued is that Shell is knowingly and willingly causing harm, causing danger- being dangerous climate change- although they know what they have to do to avoid this danger from happening. And Shell has known for such a long time. I mean, I think most of the listeners of this podcast know that Shell has known since the 60s and 80s about climate change, about their own contribution. They knew very specifically how much CO2 emissions were related to their products. So Shell had known for a long time and instead of doing what they had to do, to avoid this danger from happening by reducing their CO2 emissions, they did the opposite. They kept on growing and they lobbied against climate action, they spread doubt about climate change. So they did everything they shouldn’t have done. I think if they acted differently than this whole court case would probably not be successful.
A: Thanks, Nine. I’m also wondering to what extent this court case and the logic in which it holds Shell accountable in the future and also at the headquarters, whether this can be applied to other court cases against multinationals? And would they have to be brought in the Netherlands? Can those court cases also be brought in other places?
N: There are many specific things in the verdict that can be used everywhere, and there are parts that are only for the Netherlands. So it kind of depends a bit also, of course, on the law in specific countries, how our court case can be used. But I can give you two examples of things that can be very effective in other court cases that are not in the Netherlands. So first of all, for example, how the non legally binding human rights convention was used. So of course in our society, multinational corporations are not bound to the human rights convention that is signed by the European countries. But there is this guiding principle of multinational corporations, it’s called the UNGP. Shell states that it respects UNGP these guiding principles. And in these guiding principles, there’s a lot of explanation on how corporations should behave. And we call that soft law. So it’s not really legally binding, but it is kind of a consensus that this is how companies should behave among countries and among society. And very interesting is that the judge really used the soft law to argue that Shell is not respecting human rights. And that’s very interesting, because that means that companies that are also in other European countries, can also be sued on the basis of this soft law. So that’s one thing that can be used elsewhere. So basically, what to judge this is, by causing dangerous climate change Shell is violating basic human rights. And the other example might be the fact that the judge said that companies have their own responsibility besides governments is also something that in other countries can be reproduced in this court case, because we argued Shell is such a big company. It is bigger than many states when it comes to revenue and therefore Shell has such a big power off the road, that it has its own responsibility and we cannot just point to governments. And that’s also something that the judge agreed to. So among multiple other things, those two can be applied in many court cases, even in countries where they don’t know this duty of care act, but maybe in other types of law, they can use this.
MS: Yeah, I think that’s super interesting. And I think, it also gives me a lot of hope, you know, that a certain turning point has been reached. And that, yeah, the pressure really, against these big corporations is rising.
N: And it’s happening already. I mean, we see a court case already in France against Total. A court case in Germany has been announced against Volkswagen, both based on the same arguments and the same legal grounds as we used in the Shell case. Also the Italian company Eni received a letter of complaint, so a letter to warn them. So we are only a couple of months from the verdict, and we already see the effects.
MS: Personally when I look at past court cases against Shell, what I see as one limitation or one big issue is even if they’re held accountable in front of the court, how do you really make sure that this is being enforced? So I’m curious to hear from you, especially because Shell is such a globally operating corporation, how do you think this will play out and what do you think will be challenges in this other than now also Shell going into higher appeal?
N: First of all, I think the first step of course is monitoring, being able to see if Shell is complying with the verdict, and if not, then, of course, we have to take measures. But I think the good thing, good thing, let’s say it that way is that Shell is pretty transparent in their reporting on carbon emissions. And they have to be because of their shareholders. So we have a pretty clear picture of the emissions from Shell. So that also means that we can every year see whether or not they are complying. And if they are not, then there are several things that we can do. Of course, we will increase the pressure on Shell, we will really shame them for not complying with the court’s verdict. And it also means that they are taking a very big risk, and one thing that shareholders really hate is high risks. So it’s very much possible that if the shareholders see that Shell is not complying, that they will step in and say, wait, this is very dangerous for our shares. So then suddenly, the economic argument becomes relevant. So that’s something of course, that we can also influence, we can also try to influence shareholders. But that’s one thing. And that’s also different, I think, from other cases, for example human rights abuses from Shell in specific countries, because they are more hidden. It’s much easier to turn your back to something that is going on on the other side of the world. And Shell can avoid reporting about activities in specific countries, but they cannot avoid reporting their CO2 emissions. If Shell is really not complying, if Shell is not doing anything, then of course, at some point, if campaigning is not working, then we have to think of legal measures that can be taken.
MS: Yeah, I’m curious to hear… we all know, of course, Shell is partially a British company. How likely do you think the scenario is that Shell might move headquarters entirely to England and in this way, try to avoid this legal ruling? My first question would be do you think this is a likely scenario? And secondly, if you think that the Dutch government would then still have means to hold Shell responsible?
N: Yeah, because of many international trade agreements and different conventions that most UN countries are part of, Shell is not able to avoid this verdict by moving elsewhere. So I think that’s great. So also, not when they go to the UK. And while there are also many other reasons for Shell to stay in the Netherlands, of course, I mean, it’s also a great place if you don’t want to pay taxes. So there are more reasons for Shell to stay, I think, then to leave. But even if they decide to move their headquarters to the UK or to another country, then they still have to comply with the verdict, because when the Judge read the verdict, Shell was located in the Netherlands.
A: Thanks, Nine. I am also wondering, because you mentioned, Shell was held accountable at the headquarters, which means that there’s some degree of being able to hold the corporation accountable globally. But if I remember correctly, the Dutch court was able to hold Shell accountable because they have a duty of care to citizens in the Netherlands, correct? And so to what extent is that a limitation for really achieving justice for communities worldwide who are already seeing the impacts of the climate crisis as well as have suffered under Shell for many years?
N: Yeah, I think that one of the next challenges in climate litigation is to find out if we can hold corporations accountable for damages costs to citizens from another country. We tried. In our court case we said Shell is putting everyone in danger. So not just citizens of the Netherlands. But luckily, we also had this backup argument that Shell is putting people in the Netherlands in danger. And that’s what the judge chose to do. So basically, in the end, it is the same effect, because it’s still about Shell’s CO2 emissions globally. But of course, it’s not an acknowledgement for all the damages that people are already seeing, or will be seeing in the future, especially in the Global South, or people that are less privileged than the average Dutch person. So yeah, I think that will be one of the next steps in climate litigation in general.
A: It is really good to hear that people are taking this seriously and trying to move it forward. As we move to the last questions do you think we can really curtail the power of fossil fuel companies like Shell through strategic litigation and can we get to a future beyond Shell?
N: I think court cases are just one mean. One way of attacking the fossil fuel industry and at one point we really have to move beyond fossils in general whether it is Shell or something else we need to get rid of them. We have to keep them in the ground. And court cases are one thing but not the answer. In the end we all have to disapprove of fossil fuels and move to a different system and I think this court case helped us in showing the responsibility of Shell, showing how Shell is behaving. There is a lot of fact that we were able to present to policy makers, to the judge but in the end we need much more and we don’t have the time for so many cases. So it is not only the cases but also the time that we have. So in the next 5 years we really have to shift our whole society away from fossil fuels and away from companies such as Shell that still rely on fossil fuels.
MS: Yeah I think what you have been saying is a great transition to a question that we are asking all our guests that is what other tool next to strategic litigation do you consider absolutely necessary in moving to a future beyond Shell?
N: I think to move beyond fossil fuels we need mobilization. We need people power and we need to show that change can come from the ground up, so everyone can get involved in their own way by mass mobilization and I think at some point when someone is ready for it. And I don’t think we should do that to Shell but in the transition away from fossil fuels civil disobedience is also part of the change that we need. So I think policy makers have their role to play. But I think we will only convince them if we all mobilize and show that change really needs to happen now.
MS: Yeah, coming from a grassroots background I definitely agree. Personally my last question is, as someone who has tried to think like Shell for quite a while now, how do you see the next steps? What do you think is Shell trying to do and what should we be prepared for in the upcoming months as a movement, researchers and progressive policy makers?
N: I already see that Shell is increasing its greenwashing. So Shell had a big step back. They were exposed by the judge and now you see that they are already trying to win back public opinion and they are putting a lot of effort in their greenwashing by saying ‘oh this verdict we were already doing that”. But we who have been doing all this research on Shell know that this is absolutely not true. Shell is not heading in the right direction. So one thing that I think we need to do in the next couple weeks and months, maybe years is to continue to show the difference between what Shell is saying and what it is actually doing. So exposing their greenwashing is one of the important things we need to do from now on.
A: Thank you Nine, for your insights on strategic litigation! We got a lot out of this discussion about how we might get to a Future Beyond Shell with this strategy! We are hopeful, like you, that this case will indeed open the doors to more cases that can tackle the power of fossil fuel companies more globally.
To our listeners: If you liked the show, please follow and like us on your podcast platform and join us for the second episode on court cases! We will be speaking to lifelong activist Celestine AkpoBari from Ogoniland in Nigeria about human rights cases against Shell!
You can learn more about a Future Beyond Shell at futurebeyondshell.org and for more information on our guests and the court cases we discussed today, check out our show notes.