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Speaker 1: Hello, Hello, okay. Last month, in November, a Dutch court

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Speaker 1: ruled in Shell's favor on an appeal in a big

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Speaker 1: international climate case. It got loads of headlines around the world,

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Speaker 1: but it wasn't quite the wind for Shell that a

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Speaker 1: lot of media coverage has made it out to be.

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Speaker 1: This was an appeal of a twenty twenty one ruling.

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Speaker 1: It held that Shell is required to reduce all of

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Speaker 1: its global emissions everywhere that it operates, including what are

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Speaker 1: called Scope three emissions, so not just the emissions of

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Speaker 1: its operations, but also the emissions associated with the use

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Speaker 1: of its products. The court back in twenty twenty one

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Speaker 1: ruled that Shell had to reduce those emissions by forty

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Speaker 1: five percent by the end of twenty thirty. It was

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Speaker 1: a huge ruling, and then and an unexpected one. Shell

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Speaker 1: predictably appealed that ruling, and this new judgment is the

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Speaker 1: result of that appeal. The biggest thing that the court

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Speaker 1: walked back was this specific number forty five percent by

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Speaker 1: twenty thirty. That's the commitment that countries have made when

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Speaker 1: they signed on to the Paris Climate Accord that they

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Speaker 1: would reduce emissions by forty five percent by the end

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Speaker 1: of twenty thirty compared with their twenty nineteen emissions. What

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Speaker 1: the court called into question was whether that same commitment

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Speaker 1: is applicable to Shell or whether it needs to be

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Speaker 1: adjusted for particular companies. So that's what's been reported as

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Speaker 1: this big win. But at the same time that it

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Speaker 1: said it's not quite sure about these specific numbers, the

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Speaker 1: Court did reaffirm that Shell is in fact required to

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Speaker 1: reduce its global emissions, including Scope three, because its failure

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Speaker 1: to do so could make it impossible for the Netherlands

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Speaker 1: to meet its comments under the Paris Climate Accord. That's

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Speaker 1: actually a pretty big deal, so much so that one

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Speaker 1: expert I spoke with even said he would not be

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Speaker 1: surprised to see Shell appeal this ruling, despite the fact

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Speaker 1: that they're currently taking a victory lap in the news.

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Speaker 1: I'm Amy Westervelt today a look at what this ruling

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Speaker 1: means for future attempts to use the court to hold

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Speaker 1: companies and governments accountable on climate I'm joined today by

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Speaker 1: Jasper Tooling, strategic advisor to the non profit Climate Litigation Network,

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Speaker 1: and Noah Walker, Crawford Research Fellow with the Grandsom Research

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Speaker 1: Fellow with the Grantham Research Institute of the London School

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Speaker 1: of Economics.

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Speaker 2: So lawyer Defensi the Dutch and YEO, which is a

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Speaker 2: branch of the Global Friends of.

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Speaker 3: The Earth network, started this case in eighteen.

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Speaker 1: This is Yasper Toolings talking about the origins of this case, and.

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Speaker 3: They were initially successful. They secured a court order which

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Speaker 3: ordered Schill at the headquarter level to bring its emissions

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Speaker 3: down in line with the Paris Agreement, so forty five

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Speaker 3: percent reduction by twenty thirty across all of its emissions,

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Speaker 3: so not just its own production, also the products itself.

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Speaker 3: So that's really a groundbreaking ruling and across all of

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Speaker 3: its companies across the world. That ruling has now been overturned,

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Speaker 3: but in part, in fact, most of it still stands.

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Speaker 2: Yeah.

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Speaker 1: I think that's the piece that seems to be missing

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Speaker 1: from a lot of the coverage. So can you explain

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Speaker 1: that what has been chucked out in what remains?

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Speaker 4: No.

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Speaker 2: The only think that has not been ordered, and that's

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Speaker 2: not a small thing. It is the court order that

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Speaker 2: no defense he sought against Shell to reduce the emissions.

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Speaker 2: But the ruling now by the Court of Appeals in

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Speaker 2: the Hague contains a lot of stuff that's really fundamental

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Speaker 2: and groundbreaking and will offer lots of material and fodder

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Speaker 2: for climate litigation and climate obligations from years to come.

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Speaker 2: So the Court of Appeal said, there can be no

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Speaker 2: doubt that protection from dangerous climate change is a human right.

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Speaker 2: It is recognized worldwide that states of an obligation to

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Speaker 2: protect their citizens from adverse effects of dangerous climate change.

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Speaker 2: So when it comes to climate change as being a

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Speaker 2: human right, and that states have an obligation, and that

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Speaker 2: was clearly affirm here. But more importantly, I think this

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Speaker 2: is the other real foundation of this case. The Court

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Speaker 2: help that Shell has a duty to reduce its emissions.

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Speaker 2: And I'm going to quote again, the Court of Appeal

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Speaker 2: is of the opinion that companies like Shell, which contributes

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Speaker 2: significantly to the climate problem and have it within their

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Speaker 2: power to contribute to combating it, have an obligation to

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Speaker 2: limit your two missions in order to counter dangerous climate change,

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Speaker 2: even if this obligation is not exclicitly laid down in

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Speaker 2: public law regulations of the countries in which the company operates.

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Speaker 2: Companies like Shell thus have their own responsibility in achieving

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Speaker 2: the targets of the Paris Agreement. So that is pretty

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Speaker 2: strong and unprecedented. Court couldn't do was grant and mission

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Speaker 2: reduction order. The Paris Agreement applies to states, and the

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Speaker 2: fort reduction that the Court in first instance order it

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Speaker 2: applies at state level globally, so the Court of Appeals

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Speaker 2: that we can't directly transpose that to companies like Shell.

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Speaker 3: We'll have to find.

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Speaker 2: Other norms for that, and those norms are currently not

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Speaker 2: sufficiently crystallized.

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Speaker 3: So I think this is also the disappointing bit. The

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Speaker 3: Court could have.

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Speaker 2: Perhaps gone for the minimum baseline that all of the

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Speaker 2: reduction pathways agree on twenty five percent. This is also

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Speaker 2: something that my other fancy had asked for, but it

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Speaker 2: didn't and we'll just have to live with it.

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Speaker 3: This is also why many.

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Speaker 2: Have called disappearing victory for Shell, because those reduction pathways

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Speaker 2: are forthcoming. They're currently being developed at sexral basis in

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Speaker 2: the new context, totally a matter of time. I won't

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Speaker 2: take long before those admission pathways are there and a

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Speaker 2: company like Shell in court can be held accountable for

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Speaker 2: it and can be forced to reduce its emissions.

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Speaker 1: I asked Noah Walker Crawford at the London School of

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Speaker 1: Economics about what kind of evidence or research exactly is

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Speaker 1: needed to build out those pathways to the point where

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Speaker 1: a court might feel comfortable insisting that a company stick

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Speaker 1: to them.

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Speaker 5: What was interesting about this decision is that the court said,

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Speaker 5: you know that companies have legal obligations to reduce their missions,

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Speaker 5: that companies like Shell must abide by the Paris Agreement,

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Speaker 5: they have human rights obligations, which has, you know, impacts

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Speaker 5: on companies climate policy, and so there's there's no doubt

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Speaker 5: to the fact that they have to reduce their emissions.

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Speaker 5: The question is precisely by how much, and they are

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Speaker 5: the court looking at the science, found such divergent numbers

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Speaker 5: that they came to the conclusion that at the moment,

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Speaker 5: there's no scientific consensus and so they can't make a

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Speaker 5: legal determination. So what we need on the scientific side

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Speaker 5: is more research looking specifically at how much emissions have

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Speaker 5: to be reduced for different sectors. And so this is

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Speaker 5: research that's already ongoing. And if we look to some

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Speaker 5: of the other ongoing cases against corporations, so they so

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Speaker 5: called corporate ambition cases that are about whether companies have

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Speaker 5: to reduce their emissions going forward. Some of the other

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Speaker 5: cases have put forward more sector specific calculations in terms

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Speaker 5: of emissions reductions. So, for example, there's a case against

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Speaker 5: the cement company Haltzeem in Switzerland, another one of the

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Speaker 5: carbon majors, and in that case the plaintiffs use some

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Speaker 5: data from the IPCC where the global emissions reduction target

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Speaker 5: is translated into a sector specific target for cement, which

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Speaker 5: I think is forty two percent. Or there is a

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Speaker 5: loss brought by Greenpeace and others against Volkswagen against VW

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Speaker 5: in Germany, which is also very similar in the sense

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Speaker 5: that it's about getting VW to switch more quickly towards

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Speaker 5: electric cars and reduce its scope three emissions that way,

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Speaker 5: and there there was a very specific calculation that was

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Speaker 5: made for Volkswagen in terms of translating these global targets

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Speaker 5: to stay in line with one point five degrees. So

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Speaker 5: this is possible. But in the Shell case, the CORE

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Speaker 5: didn't find enough evidence to do or they found that

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Speaker 5: necessary evidence to calculate it specifically for Shell hadn't been

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Speaker 5: put forward. But that's not to say that it couldn't

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Speaker 5: be done in the fairly near future.

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Speaker 1: Do you think that that leaves the door open for

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Speaker 1: follow up case that have that calculation included.

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Speaker 5: I imagine there will be many follow up cases on this,

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Speaker 5: so with the better scientist, with a bit more scientific

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Speaker 5: research there, I imagine calculation of the necessary emissions reduction

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Speaker 5: can be done specifically for Shell and for other companies

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Speaker 5: like Shell. So it's likely that there are going to

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Speaker 5: be more cases like this in the future. Another interesting

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Speaker 5: point is that the court actually raised something else which

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Speaker 5: hadn't been brought up by the plaintiffs, namely that in

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Speaker 5: the court's opinion, it may be not it doesn't seem

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Speaker 5: to be in line with existing targets, with existing emissions

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Speaker 5: budgets if Shell is producing new fossil fuels, so they

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Speaker 5: basically said there may be a legal obligation for them not.

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Speaker 5: It's almost seemed like the invitation from the court, who

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Speaker 5: isn't to bring new cases against Shell over oil explor

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Speaker 5: exploration and production.

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Speaker 1: I asked Toolings about this evidence gap as well. It

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Speaker 1: strikes me and I heard this from Noah this morning

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Speaker 1: as well, that what a lot of it speaks to

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Speaker 1: is the need for some additional scientific evidence, but that's

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Speaker 1: not an insurmountable level to reach. What's your take on

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Speaker 1: what's needed to be able to say this percentage is

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Speaker 1: what's required, and here's how they are or are not

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Speaker 1: hitting it. What's sort of the evidence gap?

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Speaker 2: I guess yes, you could say it's an evidence gap

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Speaker 2: or a normative gap that the Court felt uncomfortable and

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Speaker 2: crossing on it.

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Speaker 3: So I think part of it is science.

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Speaker 2: But the science, I.

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Speaker 3: Think mostly is already there.

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Speaker 2: It's how to translate the science, and maybe I can

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Speaker 2: take a step back.

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Speaker 3: And the real win of the more defense approach.

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Speaker 2: Has been it's already been codified, it's already been adopted

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Speaker 2: into more. When the Court in first instance ruled that

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Speaker 2: Shell as is obligated to reduce its emissions, that basically

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Speaker 2: paved the way for EU legislation all large companies too.

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Speaker 3: Not just publish their emissions and publish.

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Speaker 2: A plan to reduce their emissions, but they also have

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Speaker 2: to put that plan into effect. The specific piece of

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Speaker 2: regulation that contains its key provision, it's called the Corporate

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Speaker 2: Sustainable Due Diligence Directive, and the Shell ruling, the initial one,

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Speaker 2: paved the way for this.

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Speaker 3: So that obligation is there.

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Speaker 2: It's not just applicable to Shell, its applicable all large companies,

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Speaker 2: irrespectable of what sector they operated.

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Speaker 3: That is the real win.

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Speaker 2: The European Union European Commission will also issue guidance.

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Speaker 4: That guidance will contain the sexual pathways that the Court

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Speaker 4: was looking for, and those will be issued well before

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Speaker 4: the directive kicks into action, which is July twenty twenty seven.

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Speaker 3: So sheall has bought itself some time, but not that much.

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Speaker 1: Here's Noah Locker Crawford again.

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Speaker 5: In a whole lot of ways, they actually lost. And

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Speaker 5: even though it wasn't successful in terms of binding or

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Speaker 5: obliging Shell to commit to certain emissions reductions, it did

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Speaker 5: set an important precedent. So when the judge was reading

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Speaker 5: out the verdict on Tuesday in the court, she first

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Speaker 5: discussed all the kind of fundamental points, all the substantial

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Speaker 5: points at stake here, and she said that, yes, corporations

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Speaker 5: like Shell do have to abide by the Paris Agreement.

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Speaker 5: They do have to take action legally required to take

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Speaker 5: action to address climate change. In the verdict itself, the

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Speaker 5: judges addressed the argument that Shell made that they have

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Speaker 5: no responsibility for their Scope three emissions. The Court said

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Speaker 5: this argument does not hold water. So the Court made

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Speaker 5: very clear that corporations like Shell fossil fuel companies have

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Speaker 5: a legal responsibility for these emissions, so this is not

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Speaker 5: a reason for Shell or other fossil fuel companies to

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Speaker 5: celebrate with this kind of strategic litigation. With climate litigation,

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Speaker 5: we've seen in the past that these cases build on

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Speaker 5: each other, much the way we saw with litigation against

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Speaker 5: tobacco companies in the past, which took decades and where

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Speaker 5: there were many unsuccessful cases, but with each case you

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Speaker 5: could learn something and move to the next one.

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Speaker 1: I asked Walker Crawford if companies headquartered in countries that

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Speaker 1: are not signed on to the Paris Climate Accord or

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Speaker 1: that pull out of it the United States could also

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Speaker 1: be affected by this ruling.

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Speaker 5: Yes. Absolutely, Whatever country's corporations operate on in their subject

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Speaker 5: to that country's laws, and if that country says that

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Speaker 5: corporations need to abide by the Paris targets, for example,

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Speaker 5: that's something that they can ultimately be held liable for

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Speaker 5: in that jurisdiction.

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Speaker 1: When I read this ruling, one of the things that

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Speaker 1: I was thinking about was the extent to which a

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Speaker 1: lot of these companies are pushing false solutions.

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Speaker 2: This particular ruling didn't really deal with ccs or a

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Speaker 2: carbon dioxide remobile. It's definitely something that the fossil fuel

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Speaker 2: companies are leaning on, and that the level of dependency

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Speaker 2: is really problematic, especially in the long run. We need

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Speaker 2: real emission reductions now and they have to be drastically

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Speaker 2: reduced to is actual exactly what the court said. What

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Speaker 2: the court also said is Shell has currently lots of

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Speaker 2: expansion plans, eight hundred fields they currently have in development,

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Speaker 2: and that's simply I reconcile.

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Speaker 5: Currently, we're in a situation where this technology is being

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Speaker 5: celebrated by a lot of actors, including the big oil companies,

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Speaker 5: as a technology that will help fight climate change if

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Speaker 5: it's sufficiently scaled in the future. In a sense, this

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Speaker 5: gives these companies somewhat of a free card to continue

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Speaker 5: emitting more based on the promise that technology will help

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Speaker 5: capture lots of carbon in the future. But that's not guaranteed.

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Speaker 5: We don't know whether that's actually going to be possible,

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Speaker 5: and so this is an issue. And when we're talking

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Speaker 5: about emissions reduction pathways, some of the pathways that are

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Speaker 5: put forward by fossil fuel companies assume that there will

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Speaker 5: be significant carbon capture in the future. But since that's

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Speaker 5: not guaranteed. From a scientific standpoint, we might say that's

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Speaker 5: wishful thinking. If we want to be on the safe side,

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Speaker 5: we need to reduce emissions more drastically. Today we can

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Speaker 5: depend on technologies that might or might not be feasible

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Speaker 5: in the future.

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Speaker 6: Right has estimated the potential of carbon capture actually at

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Speaker 6: a much higher level than other oil majors, which is

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Speaker 6: interesting in the context of a case like this where

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Speaker 6: they're saying, well, you're not taking into account all the

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Speaker 6: things that we're doing to contribute to acting on climate.

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Speaker 5: Yeah. Yeah, that's why it's all the more important to

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Speaker 5: explain very clearly to the courts in these cases what

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Speaker 5: kinds of assumptions are being made in different emissions reductions pathways.

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Speaker 5: And so in this case there was a legal discussion

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Speaker 5: where the plaintiffs and SEE and the others and defendant

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Speaker 5: Shell we're putting forward very different figures of what kinds

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Speaker 5: of emissions of reductions will be necessary. But the problem

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Speaker 5: here is that when Shell, we're putting forward arguments that

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Speaker 5: was based on the idea that ccs will play a

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Speaker 5: significant role in the future. But if it doesn't, then

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Speaker 5: those pathways that are claiming will be possible, they won't

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Speaker 5: work to keep emissions in line with the Paris Agreement targets.

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Speaker 1: That's a huge thing to look out for in the

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Speaker 1: year ahead, especially as our reporting and others is increasingly

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Speaker 1: finding not only that carbon capture does not live up

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Speaker 1: to the potential that oil companies describe, but also that

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Speaker 1: they are well aware of the technology's shortcomings. I asked

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Speaker 1: Tollings what else to look out for in the next year.

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Speaker 2: There are already a number of cases that have been

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Speaker 2: inspired if you will bet a shell case.

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Speaker 3: So there are cases.

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Speaker 2: Pending against Total in France, against Peariba or It's fonsil

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Speaker 2: field financing in Fronce where similar measures are sought to

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Speaker 2: reduce the emissions or to stop funding fossil fuel expansion,

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Speaker 2: as a case pending against Volkswagen in Germany. There's a

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Speaker 2: case pending against the Cement Company, one of the other

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Speaker 2: carbon majors in Switzerland on the half of inhabitants of

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Speaker 2: an Indonesian ireland, where similar measures are sought. One case

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Speaker 2: I find particularly interesting has been filed in Italy against

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Speaker 2: any the Shell of Italy, a large fossil fuel company.

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Speaker 2: And the interesting thing with them is that they are

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Speaker 2: partially state owned.

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Speaker 3: About five percent of the.

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Speaker 2: Shares are owned by them is to finance and the

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Speaker 2: twenty five percent are owned by the State Development Bank,

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Speaker 2: and they are co defended in the case. And the

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Speaker 2: demand against them is to bring their voting policy as

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Speaker 2: a state in line with the Paris Agreement. So I

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Speaker 2: think that points to particularly interesting avenue where state owned

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Speaker 2: enterprises are pursued via the state as a shareholder to

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Speaker 2: implement those very same duties the state duties the human

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Speaker 2: rights climate obligations through their voting policies.

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Speaker 3: I think that's a powerful living one that votes will

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Speaker 3: for the future.

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Speaker 1: And that's it for this time. I hope you found

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Speaker 1: that breakdown of the Shell case interesting and we'll definitely

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Speaker 1: be keeping an eye on these and other cases as

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Speaker 1: they move forward. Thanks for listening, and don't forget to

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Speaker 1: check out Drilled Dot Media for more