By: Dmytro Cherneha and Stephanie Triefus
In 2019, Milieudefensie and co-plaintiffs brought a case against Shell at the Hague District Court, claiming that its impact on climate change violated the duty of care under Dutch tort law and human rights. They sought a 45% reduction in Shell’s CO₂ emissions by 2030, aiming for net-zero by 2050 in line with the Paris Climate Agreement. In May 2021, the court issued a landmark decision ordering Shell to reduce its total emissions covering Scope 1, 2, and 3 by the required percentage by 2030 across all company-owned operations and end-use activities. Shell subsequently appealed the decision, seeking to overturn the ruling. On November 12, 2024, the Hague Court of Appeal overturned the ruling, saying that Shell must take action against climate change but there was insufficient basis for the 45% reduction. Interpretations of the ruling vary (see here, here, and here): some see it as a setback for Milieudefensie, while others highlight that it reinforces the legal obligation for companies to reduce CO₂ emissions.
In a panel discussion hosted by the Asser Institute and SEVEN (the new climate institute of the University of Amsterdam) and supported by the Netherlands Network for Human Rights Research, key experts on climate litigation against corporations reflected on lessons from the Milieudefensie v Shell case and the path forward through the Dutch courts. This post shares the panel’s reflections and considers the potential influence of the case moving forward.
Climate Change and Corporate Obligations
The right to a healthy environment is indispensable to the enjoyment of human rights. It has been recognised widely on the international level by the United Nations (UN) Human Rights Council (HRC) and then by the resolution of the UN General Assembly. Although recent climate litigation cases (see here, here, and here) have proclaimed the right to a healthy environment within a human rights framework, its application remains limited when addressing corporate responsibility to deal with climate change.
In Milieudefensie v Shell (2024), the Court confirmed that human rights provisions such as Articles 2 (right to life) and 8 (private and family life) of the European Convention on Human Rights could shape private law relationships through the interpretation of the social standard of care. This duty requires companies to reduce their own emissions while also considering how their investments affect the goal of limiting global warming to 1.5˚C. What’s peculiar is that this responsibility might include gradually eliminating investments in new fossil fuel production initiatives. However, the Court did not determine whether Shell’s planned investments in new oil and gas fields violated its social standard of care (para. 7.61) because this was not how the plaintiff’s case was formulated.
The Shell appeal decision (2024) has been perceived as a step back from the District Court’s decision to impose a target on Shell. This is crucial in terms of mitigation of climate change as scope-3 emissions account for around 95% of Shell’s carbon emissions. This matter primarily concerns the content of the social duty of care, particularly whether it can determine the reduction percentage for 2030 and how this can be applied. However, the court ruled that the social standard of care does not currently specify a particular reduction percentage. As discussed below, Milieudefensie is appealing the decision to the Dutch Supreme Court, challenging the appeal court's finding that it could not impose a 45% reduction.
A Call to Action for Governments?
In the first part of the discussion, Andre Nollkaemper highlighted the importance of the case against corporations, noting its potential to reduce emissions and influence regulations. He observed that the systemic nature of climate change policies does not and should not prevent lawsuits against individual corporations, and this should inform plaintiffs’ litigation strategies. Andre noted that domestic law is crucial in climate litigation cases and so we should be cautious about applying the Milieudefensie v Shell case reasoning to other jurisdictions. Although public law plays a significant role in cases against corporations, identifying their direct obligations related to climate change can be challenging. Businesses do not have binding obligations under the Paris Agreement, and it’s difficult to pinpoint them in EU law. Thus, the Shell case led to interesting observations regarding the company’s duty related to emissions. Lastly, he underlined that any finding in the absence of corporate responsibility should push governments to adopt proper standards for corporations since courts must work within the constraints of domestic law.
The Supreme Court Appeal
Sjoukje van Oosterhout of Milieudefensie outlined Milieudefensie’s appeal case before the Supreme Court. She emphasised that the 2024 decision reaffirmed important findings and presented three key arguments for why they decided to pursue the case further. First, based on the findings of the Klimaseniorinnen case, there is a duty to provide effective protection against dangerous climate change. Sjoukje emphasized that the Court should have considered not only scientific evidence but also legal standards. For instance, it should have taken into account international treaties and soft law that are based on climate science, as well as significant international legal principles relevant to the current situation. Additionally, she noted that the Court overlooked findings from various sources indicating that the ‘market substitution’ argument does not apply in this case. A ruling is expected in 2026.
Climate Litigation as a Catalyst for Change:
Anneloes Kuiper-Slendebroek discussed how the case fits in the history of corporate climate litigation, which has so far seen two waves. The first wave, from the 1990s to 2015, was concerned with convincing courts that they had jurisdiction to rule on climate issues and faced legal challenges such as jurisdiction standing for victims and proving the causation of harm by corporations. The second wave, from 2015 to the present, has seen a significant rise in corporate cases, coinciding with advancements in science, new legal discussions about tort law and corporate responsibility, and a stronger focus on human rights and environmental accountability. Even where they are not successful, corporate climate litigation can influence regulation by generating policy information, setting agendas, and addressing regulatory gaps. Addressing remedies for corporate climate abuses is a crucial next step in corporate climate accountability, and it is essential to carefully consider what happens next in this area.
An Increased Role for Soft Law?
In the final segment of the panel discussion, Chiara Macchi remarked that the judgment affirms the corporate duty to reduce emissions, addressing a crucial gap through the court’s intervention. Furthermore, she pointed out that the court’s ruling reinforces the standard-setting function of business and human rights soft law instruments such as the UN Guiding Principles on Business and Human Rights as authoritative international benchmarks. Chiara emphasized the duty of care that parent companies owe, citing experiences from other jurisdictions, including the Vedanta case in the United Kingdom, the Total case in France, and the newly established EU directive. Additionally, she highlighted the distinctive role of the Dutch legal system regarding the social duty of care. Although civil remediation provisions do not apply to the transition plan under the EU directive, companies are still obligated to adopt and implement their mitigation plans, which could potentially pave the way for future litigation.
Concluding observations:
Even though the appeal in the Milieudefensie v Shell case did not achieve all its objectives, it marked a significant step in establishing a clear duty for Shell to address climate change. The decision confirmed that corporations have a duty of care rooted in human rights and soft law, which is applicable under Dutch private law. This includes the obligation to reduce emissions, and importantly, it may also extend to limiting investments in new fossil fuel production projects. The Milieudefensie v Shell case continues to be an example for how these complex issues can be litigated, while also highlighting the importance of state action to set concrete standards requiring corporations to reduce emissions.
Bio:
Dmytro Cherneha is currently a research intern at the Asser Institute. He obtained an L.L.M. in Public International Law from Utrecht University. His primary interests include business and human rights, investment and arbitration law, and international human rights law.
Stephanie Triefus is a Researcher at the TMC Asser Institute and the Academic Coordinator of the Netherlands Network for Human Rights Research. Her research interests include business and human rights, climate change, and international economic law. Stephanie received her PhD cum laude from Erasmus University Rotterdam. Her research concerned international investment law, and the participatory rights of people affected by foreign investment projects.