On the second day of the session in the case against Shell, it was hardly about climate change and Shell’s guilt in it. More important was the question: who or what is Shell actually?
Try to hold “Shell” liable for the damage it causes to the climate and then it turns out that the unambiguous oil and gas company behind the yellow-red shell suddenly seems to have air. Elusive. Or at best: a maze.
Friends of the Earth Netherlands, six other NGOs and more than 17,000 co-plaintiffs experience this, who have taken Shell to court with their demand: stop causing dangerous climate change. Shell, says Milieudefensie lawyer Roger Cox, must have reduced its greenhouse gas emissions by 45 percent by 2030. After the Urgenda ruling against the state, it is the second major climate case in the Netherlands.
According to Milieudefensie, Shell is the eleventh emitter on earth and for that reason may be called to order by the judge, Cox argues. Because if Shell continues to refuse to seriously participate in limiting greenhouse gas emissions, the goals of the Paris Climate Agreement will be unfeasible. While the next ten years are crucial to prevent dangerous climate change.
Who protects the citizen?
“As long as politics proves difficult to regulate these matters quickly,” Cox said on Tuesday during the first day of the session. “And if the court doesn’t do it either, then who will protect citizens from the effects of climate change?”
Shell recognized on the first day of the trial, last Tuesday, that climate change must be tackled and that the group has a role in this. But not through a judge. “No private party can change the energy system on its own. Not even Shell. “Moreover, if the judge were to force Shell to adopt a cleaner policy, it would still not bring the global energy transition any closer. After all, another oil company would jump into the hole that Shell would create.
Anyone who had hoped that the second of a total of four session days (Thursday) would lead to a sharp debate about the impact of gasoline and gas production on climate, sea level, biodiversity and food crops in the world was only partially operated. The lawyers on both sides spent a great deal of time asking the question: can you consider Shell as a single entity? Shouldn’t you address all 1,100 Shell companies worldwide separately? Or can you say that Shell’s policy leads to climate damage?
National borders
How Shell complies with the requirement, and where it does not matter, argues the Milieudefensie lawyer. After all, CO2 emissions and the associated global warming are not limited to national borders. If it is made clear in the annual reports, which have been audited by accountants, that those emissions will indeed have decreased in 2030 in accordance with the Paris climate agreements.
From a legal point of view, the question is where the Handlungsort is located exactly, say: the crime scene. It is crystal clear to Milieudefensie that it is Shell’s head office in The Hague: that is where the harmful policy is drawn up, which is developed by the operating companies and which leads to activities that will emit CO2 in all those 1,100 branches of the group.
Policy does not lead to damage, argue Shell’s lawyers. At most you can say that the smoke plume from factory A, or the petrol from factory B, leads to climate damage. In short, say Shell lawyers: you should bring lawsuits in all countries where Shell offices are located or Shell products are sold.
Legal route
While Cox, on behalf of Milieudefensie, believes that Dutch law applies to Royal Dutch Shell, Shell’s lawyers say that the court should base itself on the legal rules in all countries in the world. With the undertone that this is practically impossible.
Then the question is where that damage is experienced. In response to questions from the judge, Cox said that Friends of the Earth Netherlands is primarily concerned with the global population, but added that in the second instance it is to do damage for the Netherlands. Depending on the legal route chosen by the judge.
Ho, ho, Shell lawyer Jan de Bie Leuveling Tjeenk responded. Shell had not concluded this from the summons and considered Milieudefensie’s explanation to be a change in the claim. “That makes another matter,” he said. “And with that, another defense.” With it, he got what he intended: the court will deliberate and will make a decision next week whether “contrary to due process” has taken place.
And so seems to be happening what lawyer Laura Burgers, who obtained her doctorate on global climate affairs last month, already predicted in de Volkskrant on Saturday: it will be a long session. The case will resume on December 15.
