According to Milieudefensie, Shell is acting unlawfully. Milieudefensie is of the opinion that under the social standard of care, Shell is obliged to reduce its CO2 emissions. Milieudefensie and several other environmental organisations submitted a claim for Shell to reduce its CO2 emissions by 45% in 2030 compared to 2019. This includes Shell’s own CO2 emissions as well as those of its suppliers and customers, known as scope 1, 2 and 3 emissions.

The Hague District Court upheld the claim of Milieudefensie, after which Shell lodged an appeal. The Stichting Milieu en Mens joined as a party in the proceedings before the court of appeal on the side of Shell.

In today’s judgment, the court of appeal held that Shell has an obligation towards citizens to limit its CO2 emissions. This obligation is based on the human right to protection against dangerous climate change. It is first and foremost up to governments to ensure the protection of human rights, but indirectly those rights also have a bearing on the social standard of care which companies like Shell must observe. In its assessment of whether Shell is acting unlawfully, the court of appeal therefore took as a starting point that citizens also have a right vis-à-vis Shell to protection from dangerous climate change.

Nevertheless, the court of appeal denied the claims of Milieudefensie because the court was unable to establish that the social standard of care entails an obligation for Shell to reduce its CO2 emissions by 45%, or some other percentage. There is currently insufficient consensus in climate science on a specific reduction percentage to which an individual company like Shell should adhere. Moreover, Shell is already working to reduce its own scope 1 and 2 emissions. Lastly, the court of appeal is of the opinion that an obligation for Shell to reduce CO2 emissions caused by buyers of Shell products, scope 3 emissions, by a particular percentage would be ineffective in this case. Shell could meet that obligation by ceasing to trade in the fuels it purchases from third parties. Other companies would then take over that trade. This would consequently not result in a reduction in CO2 emissions.

In conclusion, The Hague Court of Appeal overturned the district court’s judgment and denied the claims of Milieudefensie. An appeal in cassation against this ruling may be brought before the Dutch Supreme Court.