Taking On Governments and Big Polluters: Courts as Tools to Fight Climate Change

Climate change is a serious matter which involves everyone in the world. As such, it should be discussed anywhere – from the streets to judicial courts. These are slowly producing rulings able to change the history of environmentalism for the better. 

By Camilla Perotti | Agenzia di Stampa Giovanile

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On May 26, a historic event in the fight against climate change took place. The district court of the Hague (the Netherlands) has condemned the Dutch oil corporation Shell, the largest European oil company, for not pursuing policies in line with the Dutch climate change reduction commitments. Also, the Court ordered the company to cut its CO2 emissions by 45% in 2030, compared to its 2019 emissions levels, both from its extraction activities and from the products it sells. Despite Shell’s commitment to have a net-zero emission business by 2050, it planned to cut its oil production by 45% only by that year: in the meantime, it would keep investing more than 80% of its budget in oil and gas extraction. The case was brought to court by a group of seven Dutch NGOs, among which Milieudefensie, Greenpeace Nederland, and Action Aid Netherlands, together with more than 17.000 Dutch citizens who added their names as co-plaintiffs. The ruling of the judges is a milestone in the history of environmentalism, as there has never been anywhere in the world a similar decision before. Oil companies certainly fall within the category of ‘big polluters’ and this is the first time one of them is held responsible by a court for not complying with the Paris Agreement provisions. The consequences that this may have in the future for other big polluters and its international ramifications are unknown, but it is surely a fundamental precedent in the fight against climate change. The plaintiffs hope that this ruling may trigger a series of climate litigations against other big polluters around the world, to obtain radical cuts in their emissions and forcing them to cease extracting fossil fuels.

The decision against Shell came, by coincidence, the same day that another oil giant was in the news for a climate-related matter. Indeed, at the American oil company ExxonMobil’s shareholders’ meeting, a group of ‘activist investors’ managed to get two of their candidates elected to the board of directors. Therefore, of the twelve seats in the board two are now occupied by investors who strongly oppose a company’s current corporate policy too ignorant of climate change: they demand fiercer action by the company. It is the first time in Exxon’s history that a small group of investors managed to derail the election of company-picked directors. This should steer Exxon towards a more climate-conscious corporate strategy, reinforce the pressure activists keep putting on the company and determine a deep change within the whole oil industry. Especially so in the American context, where oil companies have set a different trend than their European competitors. These have started (albeit slowly and often with false pretences) to move towards investing in clean energy: some of them (as Shell itself, British Petroleum and Total) have already committed to become net-zero emissions businesses by 2050. In America, on the contrary, oil companies have often preferred to stand solidly in the field they are experts in, that is the extraction of fossil fuels, resisting major changes to their businesses and even investing enormously in technological research and extremely costly operations such as fracking and deep-water explorations. This stubbornness has often ignored the demand for change of the same companies’ shareholders.

Dutch courts are not new to landmark decisions regarding climate change either. In December 2019, another ruling, this time by the Dutch Supreme Court, made history. In the Urgenda Climate Case, the sustainability NGO Urgenda Foundation sued the Dutch government on behalf of 886 Dutch citizens to force it to adopt more efficient policies against climate change. In May 2015, the district court of The Hague ruled that the Dutch government should act to cut 25% of greenhouse gasses emissions by 2020 (compared to 1990 levels). In 2018, The Hague Court of Appeal upheld the judgement and finally, in December 2019, the Supreme Court confirmed the previous decisions. It was the first judicial case in the world in which a court recognised a national government’s legal duty to prevent climate change.

Since the beginning of the Urgenda controversy, many other NGOs and private citizens around the world have been inspired to take action against their respective governments’ omissions in fighting climate change. In 2015, the Green Bench of the Lahore High Court (Pakistan) upheld a farmer’s claim that the Pakistani government was failing to implement its national climate change policy. In August 2017, the Nepalese Supreme Court stated that the Nepalese government was violating fundamental constitutional rights of its population by failing to address climate change. In November 2017, a New Zealand court reputed the government legally accountable for its actions on climate change, following the claim of a local law student. In April 2018, the Colombian Supreme Court upheld the claim by twenty-five young people aged 7-25 that their national government and several local governments and corporations were violating their fundamental rights to a healthy environment, to life, health, food and to water by failing to reduce deforestation and to meet their zero-net Amazon deforestation target. In July 2020, the Irish Supreme Court declared that the Irish government was required to revise its national climate policy. Finally, in February 2021, the Administrative Court of Paris recognised the legal accountability and responsibility of the French government for contributing to climate change. These are only some of the claims brought to courts by NGOs and private citizens against their governments: some petitions have been dismissed, but many more have been successful or are still being discussed. 7

The hope is that the recent ruling against Royal Dutch Shell may spark a wave of new claims and petitions against big polluters around the globe, particularly against the ones subsidised with public funds like Shell.  And that courts may finally be a place where the fight against climate change, often blocked at a governmental level by political discourse, may be revived.