WEBVTT - The Massive Climate Case that Shell Both Won and Lost, and What It Means for the Future of Global Climate Litigation

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<v Speaker 1>Hello, Hello, okay. Last month, in November, a Dutch court

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<v Speaker 1>ruled in Shell's favor on an appeal in a big

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<v Speaker 1>international climate case. It got loads of headlines around the world,

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<v Speaker 1>but it wasn't quite the wind for Shell that a

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<v Speaker 1>lot of media coverage has made it out to be.

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<v Speaker 1>This was an appeal of a twenty twenty one ruling.

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<v Speaker 1>It held that Shell is required to reduce all of

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<v Speaker 1>its global emissions everywhere that it operates, including what are

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<v Speaker 1>called Scope three emissions, so not just the emissions of

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<v Speaker 1>its operations, but also the emissions associated with the use

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<v Speaker 1>of its products. The court back in twenty twenty one

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<v Speaker 1>ruled that Shell had to reduce those emissions by forty

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<v Speaker 1>five percent by the end of twenty thirty. It was

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<v Speaker 1>a huge ruling, and then and an unexpected one. Shell

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<v Speaker 1>predictably appealed that ruling, and this new judgment is the

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<v Speaker 1>result of that appeal. The biggest thing that the court

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<v Speaker 1>walked back was this specific number forty five percent by

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<v Speaker 1>twenty thirty. That's the commitment that countries have made when

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<v Speaker 1>they signed on to the Paris Climate Accord that they

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<v Speaker 1>would reduce emissions by forty five percent by the end

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<v Speaker 1>of twenty thirty compared with their twenty nineteen emissions. What

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<v Speaker 1>the court called into question was whether that same commitment

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<v Speaker 1>is applicable to Shell or whether it needs to be

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<v Speaker 1>adjusted for particular companies. So that's what's been reported as

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<v Speaker 1>this big win. But at the same time that it

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<v Speaker 1>said it's not quite sure about these specific numbers, the

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<v Speaker 1>Court did reaffirm that Shell is in fact required to

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<v Speaker 1>reduce its global emissions, including Scope three, because its failure

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<v Speaker 1>to do so could make it impossible for the Netherlands

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<v Speaker 1>to meet its comments under the Paris Climate Accord. That's

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<v Speaker 1>actually a pretty big deal, so much so that one

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<v Speaker 1>expert I spoke with even said he would not be

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<v Speaker 1>surprised to see Shell appeal this ruling, despite the fact

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<v Speaker 1>that they're currently taking a victory lap in the news.

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<v Speaker 1>I'm Amy Westervelt today a look at what this ruling

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<v Speaker 1>means for future attempts to use the court to hold

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<v Speaker 1>companies and governments accountable on climate I'm joined today by

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<v Speaker 1>Jasper Tooling, strategic advisor to the non profit Climate Litigation Network,

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<v Speaker 1>and Noah Walker, Crawford Research Fellow with the Grandsom Research

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<v Speaker 1>Fellow with the Grantham Research Institute of the London School

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<v Speaker 1>of Economics.

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<v Speaker 2>So lawyer Defensi the Dutch and YEO, which is a

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<v Speaker 2>branch of the Global Friends of.

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<v Speaker 3>The Earth network, started this case in eighteen.

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

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<v Speaker 3>They were initially successful. They secured a court order which

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<v Speaker 3>ordered Schill at the headquarter level to bring its emissions

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<v Speaker 3>down in line with the Paris Agreement, so forty five

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<v Speaker 3>percent reduction by twenty thirty across all of its emissions,

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<v Speaker 3>so not just its own production, also the products itself.

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<v Speaker 3>So that's really a groundbreaking ruling and across all of

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<v Speaker 3>its companies across the world. That ruling has now been overturned,

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<v Speaker 3>but in part, in fact, most of it still stands.

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<v Speaker 2>Yeah.

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<v Speaker 1>I think that's the piece that seems to be missing

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<v Speaker 1>from a lot of the coverage. So can you explain

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<v Speaker 1>that what has been chucked out in what remains?

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<v Speaker 4>No.

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<v Speaker 2>The only think that has not been ordered, and that's

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<v Speaker 2>not a small thing. It is the court order that

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<v Speaker 2>no defense he sought against Shell to reduce the emissions.

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<v Speaker 2>But the ruling now by the Court of Appeals in

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<v Speaker 2>the Hague contains a lot of stuff that's really fundamental

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<v Speaker 2>and groundbreaking and will offer lots of material and fodder

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<v Speaker 2>for climate litigation and climate obligations from years to come.

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<v Speaker 2>So the Court of Appeal said, there can be no

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<v Speaker 2>doubt that protection from dangerous climate change is a human right.

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<v Speaker 2>It is recognized worldwide that states of an obligation to

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<v Speaker 2>protect their citizens from adverse effects of dangerous climate change.

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<v Speaker 2>So when it comes to climate change as being a

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<v Speaker 2>human right, and that states have an obligation, and that

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<v Speaker 2>was clearly affirm here. But more importantly, I think this

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<v Speaker 2>is the other real foundation of this case. The Court

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<v Speaker 2>help that Shell has a duty to reduce its emissions.

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<v Speaker 2>And I'm going to quote again, the Court of Appeal

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<v Speaker 2>is of the opinion that companies like Shell, which contributes

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<v Speaker 2>significantly to the climate problem and have it within their

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<v Speaker 2>power to contribute to combating it, have an obligation to

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<v Speaker 2>limit your two missions in order to counter dangerous climate change,

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<v Speaker 2>even if this obligation is not exclicitly laid down in

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<v Speaker 2>public law regulations of the countries in which the company operates.

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<v Speaker 2>Companies like Shell thus have their own responsibility in achieving

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<v Speaker 2>the targets of the Paris Agreement. So that is pretty

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<v Speaker 2>strong and unprecedented. Court couldn't do was grant and mission

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<v Speaker 2>reduction order. The Paris Agreement applies to states, and the

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<v Speaker 2>fort reduction that the Court in first instance order it

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<v Speaker 2>applies at state level globally, so the Court of Appeals

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<v Speaker 2>that we can't directly transpose that to companies like Shell.

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<v Speaker 3>We'll have to find.

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<v Speaker 2>Other norms for that, and those norms are currently not

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<v Speaker 2>sufficiently crystallized.

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<v Speaker 3>So I think this is also the disappointing bit. The

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<v Speaker 3>Court could have.

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<v Speaker 2>Perhaps gone for the minimum baseline that all of the

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<v Speaker 2>reduction pathways agree on twenty five percent. This is also

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<v Speaker 2>something that my other fancy had asked for, but it

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<v Speaker 2>didn't and we'll just have to live with it.

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<v Speaker 3>This is also why many.

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<v Speaker 2>Have called disappearing victory for Shell, because those reduction pathways

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<v Speaker 2>are forthcoming. They're currently being developed at sexral basis in

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

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<v Speaker 2>take long before those admission pathways are there and a

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<v Speaker 2>company like Shell in court can be held accountable for

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<v Speaker 2>it and can be forced to reduce its emissions.

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<v Speaker 1>I asked Noah Walker Crawford at the London School of

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<v Speaker 1>Economics about what kind of evidence or research exactly is

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<v Speaker 1>needed to build out those pathways to the point where

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<v Speaker 1>a court might feel comfortable insisting that a company stick

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<v Speaker 1>to them.

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<v Speaker 5>What was interesting about this decision is that the court said,

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<v Speaker 5>you know that companies have legal obligations to reduce their missions,

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<v Speaker 5>that companies like Shell must abide by the Paris Agreement,

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<v Speaker 5>they have human rights obligations, which has, you know, impacts

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<v Speaker 5>on companies climate policy, and so there's there's no doubt

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<v Speaker 5>to the fact that they have to reduce their emissions.

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<v Speaker 5>The question is precisely by how much, and they are

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<v Speaker 5>the court looking at the science, found such divergent numbers

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<v Speaker 5>that they came to the conclusion that at the moment,

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<v Speaker 5>there's no scientific consensus and so they can't make a

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<v Speaker 5>legal determination. So what we need on the scientific side

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<v Speaker 5>is more research looking specifically at how much emissions have

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<v Speaker 5>to be reduced for different sectors. And so this is

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<v Speaker 5>research that's already ongoing. And if we look to some

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<v Speaker 5>of the other ongoing cases against corporations, so they so

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<v Speaker 5>called corporate ambition cases that are about whether companies have

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<v Speaker 5>to reduce their emissions going forward. Some of the other

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<v Speaker 5>cases have put forward more sector specific calculations in terms

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

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<v Speaker 5>the cement company Haltzeem in Switzerland, another one of the

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<v Speaker 5>carbon majors, and in that case the plaintiffs use some

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<v Speaker 5>data from the IPCC where the global emissions reduction target

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<v Speaker 5>is translated into a sector specific target for cement, which

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<v Speaker 5>I think is forty two percent. Or there is a

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<v Speaker 5>loss brought by Greenpeace and others against Volkswagen against VW

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<v Speaker 5>in Germany, which is also very similar in the sense

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<v Speaker 5>that it's about getting VW to switch more quickly towards

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<v Speaker 5>electric cars and reduce its scope three emissions that way,

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<v Speaker 5>and there there was a very specific calculation that was

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<v Speaker 5>made for Volkswagen in terms of translating these global targets

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<v Speaker 5>to stay in line with one point five degrees. So

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<v Speaker 5>this is possible. But in the Shell case, the CORE

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<v Speaker 5>didn't find enough evidence to do or they found that

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<v Speaker 5>necessary evidence to calculate it specifically for Shell hadn't been

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<v Speaker 5>put forward. But that's not to say that it couldn't

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<v Speaker 5>be done in the fairly near future.

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<v Speaker 1>Do you think that that leaves the door open for

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<v Speaker 1>follow up case that have that calculation included.

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<v Speaker 5>I imagine there will be many follow up cases on this,

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<v Speaker 5>so with the better scientist, with a bit more scientific

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<v Speaker 5>research there, I imagine calculation of the necessary emissions reduction

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<v Speaker 5>can be done specifically for Shell and for other companies

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<v Speaker 5>like Shell. So it's likely that there are going to

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<v Speaker 5>be more cases like this in the future. Another interesting

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<v Speaker 5>point is that the court actually raised something else which

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<v Speaker 5>hadn't been brought up by the plaintiffs, namely that in

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<v Speaker 5>the court's opinion, it may be not it doesn't seem

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<v Speaker 5>to be in line with existing targets, with existing emissions

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<v Speaker 5>budgets if Shell is producing new fossil fuels, so they

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<v Speaker 5>basically said there may be a legal obligation for them not.

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<v Speaker 5>It's almost seemed like the invitation from the court, who

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<v Speaker 5>isn't to bring new cases against Shell over oil explor

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<v Speaker 5>exploration and production.

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<v Speaker 1>I asked Toolings about this evidence gap as well. It

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<v Speaker 1>strikes me and I heard this from Noah this morning

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<v Speaker 1>as well, that what a lot of it speaks to

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<v Speaker 1>is the need for some additional scientific evidence, but that's

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<v Speaker 1>not an insurmountable level to reach. What's your take on

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<v Speaker 1>what's needed to be able to say this percentage is

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<v Speaker 1>what's required, and here's how they are or are not

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<v Speaker 1>hitting it. What's sort of the evidence gap?

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<v Speaker 2>I guess yes, you could say it's an evidence gap

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<v Speaker 2>or a normative gap that the Court felt uncomfortable and

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<v Speaker 2>crossing on it.

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<v Speaker 3>So I think part of it is science.

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<v Speaker 2>But the science, I.

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<v Speaker 3>Think mostly is already there.

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<v Speaker 2>It's how to translate the science, and maybe I can

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<v Speaker 2>take a step back.

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<v Speaker 3>And the real win of the more defense approach.

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<v Speaker 2>Has been it's already been codified, it's already been adopted

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<v Speaker 2>into more. When the Court in first instance ruled that

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<v Speaker 2>Shell as is obligated to reduce its emissions, that basically

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<v Speaker 2>paved the way for EU legislation all large companies too.

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<v Speaker 3>Not just publish their emissions and publish.

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<v Speaker 2>A plan to reduce their emissions, but they also have

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<v Speaker 2>to put that plan into effect. The specific piece of

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<v Speaker 2>regulation that contains its key provision, it's called the Corporate

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<v Speaker 2>Sustainable Due Diligence Directive, and the Shell ruling, the initial one,

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<v Speaker 2>paved the way for this.

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<v Speaker 3>So that obligation is there.

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<v Speaker 2>It's not just applicable to Shell, its applicable all large companies,

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<v Speaker 2>irrespectable of what sector they operated.

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<v Speaker 3>That is the real win.

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<v Speaker 2>The European Union European Commission will also issue guidance.

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<v Speaker 4>That guidance will contain the sexual pathways that the Court

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<v Speaker 4>was looking for, and those will be issued well before

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<v Speaker 4>the directive kicks into action, which is July twenty twenty seven.

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<v Speaker 3>So sheall has bought itself some time, but not that much.

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<v Speaker 1>Here's Noah Locker Crawford again.

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<v Speaker 5>In a whole lot of ways, they actually lost. And

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<v Speaker 5>even though it wasn't successful in terms of binding or

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<v Speaker 5>obliging Shell to commit to certain emissions reductions, it did

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<v Speaker 5>set an important precedent. So when the judge was reading

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<v Speaker 5>out the verdict on Tuesday in the court, she first

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<v Speaker 5>discussed all the kind of fundamental points, all the substantial

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<v Speaker 5>points at stake here, and she said that, yes, corporations

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<v Speaker 5>like Shell do have to abide by the Paris Agreement.

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<v Speaker 5>They do have to take action legally required to take

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<v Speaker 5>action to address climate change. In the verdict itself, the

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<v Speaker 5>judges addressed the argument that Shell made that they have

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<v Speaker 5>no responsibility for their Scope three emissions. The Court said

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<v Speaker 5>this argument does not hold water. So the Court made

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<v Speaker 5>very clear that corporations like Shell fossil fuel companies have

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<v Speaker 5>a legal responsibility for these emissions, so this is not

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<v Speaker 5>a reason for Shell or other fossil fuel companies to

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<v Speaker 5>celebrate with this kind of strategic litigation. With climate litigation,

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<v Speaker 5>we've seen in the past that these cases build on

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<v Speaker 5>each other, much the way we saw with litigation against

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<v Speaker 5>tobacco companies in the past, which took decades and where

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<v Speaker 5>there were many unsuccessful cases, but with each case you

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<v Speaker 5>could learn something and move to the next one.

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<v Speaker 1>I asked Walker Crawford if companies headquartered in countries that

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<v Speaker 1>are not signed on to the Paris Climate Accord or

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<v Speaker 1>that pull out of it the United States could also

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<v Speaker 1>be affected by this ruling.

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

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<v Speaker 5>to that country's laws, and if that country says that

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<v Speaker 5>corporations need to abide by the Paris targets, for example,

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<v Speaker 5>that's something that they can ultimately be held liable for

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<v Speaker 5>in that jurisdiction.

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<v Speaker 1>When I read this ruling, one of the things that

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<v Speaker 1>I was thinking about was the extent to which a

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<v Speaker 1>lot of these companies are pushing false solutions.

0:15:32.920 --> 0:15:36.440
<v Speaker 2>This particular ruling didn't really deal with ccs or a

0:15:36.560 --> 0:15:40.320
<v Speaker 2>carbon dioxide remobile. It's definitely something that the fossil fuel

0:15:40.360 --> 0:15:45.920
<v Speaker 2>companies are leaning on, and that the level of dependency

0:15:46.120 --> 0:15:50.600
<v Speaker 2>is really problematic, especially in the long run. We need

0:15:50.960 --> 0:15:54.600
<v Speaker 2>real emission reductions now and they have to be drastically

0:15:54.640 --> 0:15:58.480
<v Speaker 2>reduced to is actual exactly what the court said. What

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<v Speaker 2>the court also said is Shell has currently lots of

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<v Speaker 2>expansion plans, eight hundred fields they currently have in development,

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<v Speaker 2>and that's simply I reconcile.

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<v Speaker 5>Currently, we're in a situation where this technology is being

0:16:16.000 --> 0:16:21.600
<v Speaker 5>celebrated by a lot of actors, including the big oil companies,

0:16:22.120 --> 0:16:26.280
<v Speaker 5>as a technology that will help fight climate change if

0:16:26.320 --> 0:16:29.880
<v Speaker 5>it's sufficiently scaled in the future. In a sense, this

0:16:30.200 --> 0:16:34.160
<v Speaker 5>gives these companies somewhat of a free card to continue

0:16:34.160 --> 0:16:38.320
<v Speaker 5>emitting more based on the promise that technology will help

0:16:38.480 --> 0:16:42.440
<v Speaker 5>capture lots of carbon in the future. But that's not guaranteed.

0:16:42.480 --> 0:16:45.120
<v Speaker 5>We don't know whether that's actually going to be possible,

0:16:45.520 --> 0:16:48.040
<v Speaker 5>and so this is an issue. And when we're talking

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<v Speaker 5>about emissions reduction pathways, some of the pathways that are

0:16:52.440 --> 0:16:55.880
<v Speaker 5>put forward by fossil fuel companies assume that there will

0:16:55.880 --> 0:17:00.200
<v Speaker 5>be significant carbon capture in the future. But since that's

0:17:00.240 --> 0:17:04.399
<v Speaker 5>not guaranteed. From a scientific standpoint, we might say that's

0:17:04.760 --> 0:17:07.760
<v Speaker 5>wishful thinking. If we want to be on the safe side,

0:17:07.800 --> 0:17:11.280
<v Speaker 5>we need to reduce emissions more drastically. Today we can

0:17:11.440 --> 0:17:14.960
<v Speaker 5>depend on technologies that might or might not be feasible

0:17:14.960 --> 0:17:15.560
<v Speaker 5>in the future.

0:17:16.119 --> 0:17:20.199
<v Speaker 6>Right has estimated the potential of carbon capture actually at

0:17:20.240 --> 0:17:23.719
<v Speaker 6>a much higher level than other oil majors, which is

0:17:23.800 --> 0:17:26.360
<v Speaker 6>interesting in the context of a case like this where

0:17:26.359 --> 0:17:29.199
<v Speaker 6>they're saying, well, you're not taking into account all the

0:17:29.200 --> 0:17:33.360
<v Speaker 6>things that we're doing to contribute to acting on climate.

0:17:33.880 --> 0:17:37.879
<v Speaker 5>Yeah. Yeah, that's why it's all the more important to

0:17:38.280 --> 0:17:41.600
<v Speaker 5>explain very clearly to the courts in these cases what

0:17:41.720 --> 0:17:46.199
<v Speaker 5>kinds of assumptions are being made in different emissions reductions pathways.

0:17:46.200 --> 0:17:49.240
<v Speaker 5>And so in this case there was a legal discussion

0:17:49.359 --> 0:17:53.320
<v Speaker 5>where the plaintiffs and SEE and the others and defendant

0:17:53.760 --> 0:17:57.160
<v Speaker 5>Shell we're putting forward very different figures of what kinds

0:17:57.160 --> 0:18:01.360
<v Speaker 5>of emissions of reductions will be necessary. But the problem

0:18:01.400 --> 0:18:05.040
<v Speaker 5>here is that when Shell, we're putting forward arguments that

0:18:05.320 --> 0:18:08.280
<v Speaker 5>was based on the idea that ccs will play a

0:18:08.280 --> 0:18:11.320
<v Speaker 5>significant role in the future. But if it doesn't, then

0:18:11.480 --> 0:18:15.080
<v Speaker 5>those pathways that are claiming will be possible, they won't

0:18:15.119 --> 0:18:19.200
<v Speaker 5>work to keep emissions in line with the Paris Agreement targets.

0:18:21.320 --> 0:18:23.480
<v Speaker 1>That's a huge thing to look out for in the

0:18:23.560 --> 0:18:27.640
<v Speaker 1>year ahead, especially as our reporting and others is increasingly

0:18:27.720 --> 0:18:30.840
<v Speaker 1>finding not only that carbon capture does not live up

0:18:30.840 --> 0:18:34.920
<v Speaker 1>to the potential that oil companies describe, but also that

0:18:34.960 --> 0:18:40.440
<v Speaker 1>they are well aware of the technology's shortcomings. I asked

0:18:40.480 --> 0:18:43.240
<v Speaker 1>Tollings what else to look out for in the next year.

0:18:43.960 --> 0:18:46.200
<v Speaker 2>There are already a number of cases that have been

0:18:46.240 --> 0:18:48.160
<v Speaker 2>inspired if you will bet a shell case.

0:18:48.359 --> 0:18:49.800
<v Speaker 3>So there are cases.

0:18:49.440 --> 0:18:55.679
<v Speaker 2>Pending against Total in France, against Peariba or It's fonsil

0:18:55.720 --> 0:19:00.199
<v Speaker 2>field financing in Fronce where similar measures are sought to

0:19:00.280 --> 0:19:03.760
<v Speaker 2>reduce the emissions or to stop funding fossil fuel expansion,

0:19:03.800 --> 0:19:06.800
<v Speaker 2>as a case pending against Volkswagen in Germany. There's a

0:19:07.720 --> 0:19:11.520
<v Speaker 2>case pending against the Cement Company, one of the other

0:19:11.560 --> 0:19:16.480
<v Speaker 2>carbon majors in Switzerland on the half of inhabitants of

0:19:16.480 --> 0:19:21.160
<v Speaker 2>an Indonesian ireland, where similar measures are sought. One case

0:19:21.160 --> 0:19:24.160
<v Speaker 2>I find particularly interesting has been filed in Italy against

0:19:24.160 --> 0:19:27.200
<v Speaker 2>any the Shell of Italy, a large fossil fuel company.

0:19:27.280 --> 0:19:30.360
<v Speaker 2>And the interesting thing with them is that they are

0:19:30.480 --> 0:19:31.600
<v Speaker 2>partially state owned.

0:19:32.200 --> 0:19:34.159
<v Speaker 3>About five percent of the.

0:19:34.359 --> 0:19:37.080
<v Speaker 2>Shares are owned by them is to finance and the

0:19:37.119 --> 0:19:41.359
<v Speaker 2>twenty five percent are owned by the State Development Bank,

0:19:41.960 --> 0:19:44.560
<v Speaker 2>and they are co defended in the case. And the

0:19:44.600 --> 0:19:49.280
<v Speaker 2>demand against them is to bring their voting policy as

0:19:49.320 --> 0:19:52.879
<v Speaker 2>a state in line with the Paris Agreement. So I

0:19:52.920 --> 0:19:58.320
<v Speaker 2>think that points to particularly interesting avenue where state owned

0:19:58.480 --> 0:20:04.119
<v Speaker 2>enterprises are pursued via the state as a shareholder to

0:20:04.240 --> 0:20:07.720
<v Speaker 2>implement those very same duties the state duties the human

0:20:07.800 --> 0:20:11.240
<v Speaker 2>rights climate obligations through their voting policies.

0:20:11.400 --> 0:20:14.359
<v Speaker 3>I think that's a powerful living one that votes will

0:20:15.240 --> 0:20:15.919
<v Speaker 3>for the future.

0:20:20.160 --> 0:20:23.000
<v Speaker 1>And that's it for this time. I hope you found

0:20:23.040 --> 0:20:25.920
<v Speaker 1>that breakdown of the Shell case interesting and we'll definitely

0:20:25.960 --> 0:20:29.359
<v Speaker 1>be keeping an eye on these and other cases as

0:20:29.400 --> 0:20:33.000
<v Speaker 1>they move forward. Thanks for listening, and don't forget to

0:20:33.080 --> 0:20:35.440
<v Speaker 1>check out Drilled Dot Media for more