Business and human rights implications of climate change litigation: Milieudefensie et al. v Royal Dutch Shell

• Published date: 01 November 2021
• Author: Chiara Macchi,Josephine Zeben
• Date: 01 November 2021
• DOI: http://doi.org/10.1111/reel.12416

CASE NOTE

Business and human rights implications of climate change

litigation: Milieudefensie et al.v Royal Dutch Shell

Chiara Macchi | Josephine van Zeben

Wageningen University, Law Group,

Wageningen, The Netherlands

Correspondence

Chiara Macchi and Josephine van Zeben,

Wageningen University, Law Group,

Wageningen, The Netherlands.

Email: chiara.macchi@wur.nl;

josephine.vanzeben@wur.nl

Abstract

In Milieudefensie et al. v Royal Dutch Shell, the District Court in the Hague ordered the

respondent company to cut its global carbon dioxide emissions by 45 percent by

2030, as compared with 2019 levels. The landmark judgement represents the first

imposition of a specific mitigation obligation on a private company over and above

reduction targets set by existing ‘cap-and-trade’regulations and/or other govern-

mental mitigation policies. In interpreting Royal Dutch Shell's duty of care under

Dutch tort law, the Court referred extensively to international soft law, including the

United Nations Guiding Principles on Business and Human Rights. This note con-

siders the implications of this case for corporate responsibility for environmental and

human rights.

1|INTRODUCTION

On 26 May 2021, the District Court in The Hague handed down a

landmark judgement in the case Milieudefensie et al. v Royal Dutch

Shell, ordering the respondent company to cut its global carbon diox-

ide (CO

2

) emissions by 45 percent by 2030, as compared with 2019

levels.

1

The judgement marks the first time a court imposes a specific

mitigation obligation on a private company over and above reduction

targets set by existing ‘cap-and-trade regulations’

2

and/or other gov-

ernmental mitigation policies. The Court based Royal Dutch Shell's

(RDS) obligation to reduce its emissions on its duty of care towards

current and future Dutch residents. Dutch tort law, specifically Book

6, Section 162 of the Civil Code, creates an unwritten standard of

care which the Court interpreted on the basis of 14 factors, including

the consequences of RDS's CO

2

emissions, possible reduction path-

ways, the United Nations Guiding Principles on Business and Human

Rights (UNGPs), and responsibilities of States and society.

3

Milieudefensie v RDS contributes to a body of jurisprudence that

builds on the Urgenda rulings,

4

and related cases from other jurisdic-

tions.

5

As discussed in relation to Urgenda, there are features of this

case that are specific to the Dutch legal system—such as the construc-

tion of the tort-based duty of care and the type of class actions that

can be brought.

6

There are however also clear implications for climate

change litigation around the world, not least due to the prominent role

played by international human rights law, such as the European Con-

vention on Human Rights (ECHR), in the interpretation of the stan-

dard of RDS's duty of care.

7

Moreover, the judgement shows how

domestic litigation can contribute to ‘hardening’international soft law

in relation to standards of corporate conduct.

1

District Court of The Hague, Milieudefensie et al.v Royal Dutch Shell PLC (26 May 2021)

C/09/571932/HA ZA 19-379, English Version (Milieudefensie v RDS) para 5.3.

2

ibid para 4.4.46.

3

ibid paras 4.4.2ff, as discussed in detail below.

4

Urgenda Foundation (on behalf of 886 individuals) v The State of the Netherlands (Ministry of

Infrastructure and the Environment) (2015) ILDC 2456 (NL 2015) (Urgenda—District Court);

The State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v Urgenda

Foundation (2018) C/09/456689/ HA ZA 13-1396; The State of the Netherlands (Ministry of

Economic Affairs and Climate Policy) v Stichting Urgenda (2019) 19/00135.

5

United Nations Environment Programme (UNEP), Global Climate Litigation Report: 2020

Status Review (UNEP 2020).

6

See J van Zeben, ‘Establishing a Governmental Duty of Care for Climate Change Mitigation:

Will Urgenda Turn the Tide?’(2015) 4 Transnational Environmental Law 339. See in this case

on standing: Milieudefensie v RDS (n 1) paras 4.2.1–4.2.7.

7

Milieudefensie v RDS (n 1) paras 4.4.9–4.4.10.

DOI: 10.1111/reel.12416

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial License, which permits use, distribution and reproduction in any

medium, provided the original work is properly cited and is not used for commercial purposes.

© 2021 The Authors. Review of European, Comparative & International Environmental Law published by Wiley Periodicals LLC.

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