Victory for energy companies/defeat for the environment?

In a major development in climate change litigation, the Dutch Court of Appeal has overturned a landmark District Court decision which placed obligations on Shell to reduce its CO2 emissions by 45% by 2030.

Summary

The court held that whilst Shell was required to reduce its emissions, there was insufficient consensus amongst the scientific community as to what specific percentage reduction Shell should be adhering to. The court also considered whose responsibility it is to combat climate change. It found that although companies like Shell have an obligation to limit their CO2 emissions, the burden lays primarily with governments. Our Dutch colleagues have written about the case in more detail here.

Impact

This is a significant setback to activists' attempts to tackle the root cause of climate change through the courts by bringing cases directly against companies in the energy sector, as opposed to the more tried-and-tested method of launching legal challenges against governments in relation to their policies on climate change. The court's analysis demonstrates some of the real hurdles that lie in the way of doing so, without specific legislation or regulation clarifying companies' obligations. The case may therefore encourage activists to return to actions against governments and to reconsider how they can target the private sector.

However, this Court of Appeal case may not be the end of the story as the case could be appealed to the Dutch Supreme Court. We await updates with interest.