Speaker 1: Hello, Hello, okay. Last month, in November, a Dutch court
Speaker 1: ruled in Shell's favor on an appeal in a big
Speaker 1: international climate case. It got loads of headlines around the world,
Speaker 1: but it wasn't quite the wind for Shell that a
Speaker 1: lot of media coverage has made it out to be.
Speaker 1: This was an appeal of a twenty twenty one ruling.
Speaker 1: It held that Shell is required to reduce all of
Speaker 1: its global emissions everywhere that it operates, including what are
Speaker 1: called Scope three emissions, so not just the emissions of
Speaker 1: its operations, but also the emissions associated with the use
Speaker 1: of its products. The court back in twenty twenty one
Speaker 1: ruled that Shell had to reduce those emissions by forty
Speaker 1: five percent by the end of twenty thirty. It was
Speaker 1: a huge ruling, and then and an unexpected one. Shell
Speaker 1: predictably appealed that ruling, and this new judgment is the
Speaker 1: result of that appeal. The biggest thing that the court
Speaker 1: walked back was this specific number forty five percent by
Speaker 1: twenty thirty. That's the commitment that countries have made when
Speaker 1: they signed on to the Paris Climate Accord that they
Speaker 1: would reduce emissions by forty five percent by the end
Speaker 1: of twenty thirty compared with their twenty nineteen emissions. What
Speaker 1: the court called into question was whether that same commitment
Speaker 1: is applicable to Shell or whether it needs to be
Speaker 1: adjusted for particular companies. So that's what's been reported as
Speaker 1: this big win. But at the same time that it
Speaker 1: said it's not quite sure about these specific numbers, the
Speaker 1: Court did reaffirm that Shell is in fact required to
Speaker 1: reduce its global emissions, including Scope three, because its failure
Speaker 1: to do so could make it impossible for the Netherlands
Speaker 1: to meet its comments under the Paris Climate Accord. That's
Speaker 1: actually a pretty big deal, so much so that one
Speaker 1: expert I spoke with even said he would not be
Speaker 1: surprised to see Shell appeal this ruling, despite the fact
Speaker 1: that they're currently taking a victory lap in the news.
Speaker 1: I'm Amy Westervelt today a look at what this ruling
Speaker 1: means for future attempts to use the court to hold
Speaker 1: companies and governments accountable on climate I'm joined today by
Speaker 1: Jasper Tooling, strategic advisor to the non profit Climate Litigation Network,
Speaker 1: and Noah Walker, Crawford Research Fellow with the Grandsom Research
Speaker 1: Fellow with the Grantham Research Institute of the London School
Speaker 1: of Economics.
Speaker 2: So lawyer Defensi the Dutch and YEO, which is a
Speaker 2: branch of the Global Friends of.
Speaker 3: The Earth network, started this case in eighteen.
Speaker 1: This is Yasper Toolings talking about the origins of this case, and.
Speaker 3: They were initially successful. They secured a court order which
Speaker 3: ordered Schill at the headquarter level to bring its emissions
Speaker 3: down in line with the Paris Agreement, so forty five
Speaker 3: percent reduction by twenty thirty across all of its emissions,
Speaker 3: so not just its own production, also the products itself.
Speaker 3: So that's really a groundbreaking ruling and across all of
Speaker 3: its companies across the world. That ruling has now been overturned,
Speaker 3: but in part, in fact, most of it still stands.
Speaker 2: Yeah.
Speaker 1: I think that's the piece that seems to be missing
Speaker 1: from a lot of the coverage. So can you explain
Speaker 1: that what has been chucked out in what remains?
Speaker 4: No.
Speaker 2: The only think that has not been ordered, and that's
Speaker 2: not a small thing. It is the court order that
Speaker 2: no defense he sought against Shell to reduce the emissions.
Speaker 2: But the ruling now by the Court of Appeals in
Speaker 2: the Hague contains a lot of stuff that's really fundamental
Speaker 2: and groundbreaking and will offer lots of material and fodder
Speaker 2: for climate litigation and climate obligations from years to come.
Speaker 2: So the Court of Appeal said, there can be no
Speaker 2: doubt that protection from dangerous climate change is a human right.
Speaker 2: It is recognized worldwide that states of an obligation to
Speaker 2: protect their citizens from adverse effects of dangerous climate change.
Speaker 2: So when it comes to climate change as being a
Speaker 2: human right, and that states have an obligation, and that
Speaker 2: was clearly affirm here. But more importantly, I think this
Speaker 2: is the other real foundation of this case. The Court
Speaker 2: help that Shell has a duty to reduce its emissions.
Speaker 2: And I'm going to quote again, the Court of Appeal
Speaker 2: is of the opinion that companies like Shell, which contributes
Speaker 2: significantly to the climate problem and have it within their
Speaker 2: power to contribute to combating it, have an obligation to
Speaker 2: limit your two missions in order to counter dangerous climate change,
Speaker 2: even if this obligation is not exclicitly laid down in
Speaker 2: public law regulations of the countries in which the company operates.
Speaker 2: Companies like Shell thus have their own responsibility in achieving
Speaker 2: the targets of the Paris Agreement. So that is pretty
Speaker 2: strong and unprecedented. Court couldn't do was grant and mission
Speaker 2: reduction order. The Paris Agreement applies to states, and the
Speaker 2: fort reduction that the Court in first instance order it
Speaker 2: applies at state level globally, so the Court of Appeals
Speaker 2: that we can't directly transpose that to companies like Shell.
Speaker 3: We'll have to find.
Speaker 2: Other norms for that, and those norms are currently not
Speaker 2: sufficiently crystallized.
Speaker 3: So I think this is also the disappointing bit. The
Speaker 3: Court could have.
Speaker 2: Perhaps gone for the minimum baseline that all of the
Speaker 2: reduction pathways agree on twenty five percent. This is also
Speaker 2: something that my other fancy had asked for, but it
Speaker 2: didn't and we'll just have to live with it.
Speaker 3: This is also why many.
Speaker 2: Have called disappearing victory for Shell, because those reduction pathways
Speaker 2: are forthcoming. They're currently being developed at sexral basis in
Speaker 2: the new context, totally a matter of time. I won't
Speaker 2: take long before those admission pathways are there and a
Speaker 2: company like Shell in court can be held accountable for
Speaker 2: it and can be forced to reduce its emissions.
Speaker 1: I asked Noah Walker Crawford at the London School of
Speaker 1: Economics about what kind of evidence or research exactly is
Speaker 1: needed to build out those pathways to the point where
Speaker 1: a court might feel comfortable insisting that a company stick
Speaker 1: to them.
Speaker 5: What was interesting about this decision is that the court said,
Speaker 5: you know that companies have legal obligations to reduce their missions,
Speaker 5: that companies like Shell must abide by the Paris Agreement,
Speaker 5: they have human rights obligations, which has, you know, impacts
Speaker 5: on companies climate policy, and so there's there's no doubt
Speaker 5: to the fact that they have to reduce their emissions.
Speaker 5: The question is precisely by how much, and they are
Speaker 5: the court looking at the science, found such divergent numbers
Speaker 5: that they came to the conclusion that at the moment,
Speaker 5: there's no scientific consensus and so they can't make a
Speaker 5: legal determination. So what we need on the scientific side
Speaker 5: is more research looking specifically at how much emissions have
Speaker 5: to be reduced for different sectors. And so this is
Speaker 5: research that's already ongoing. And if we look to some
Speaker 5: of the other ongoing cases against corporations, so they so
Speaker 5: called corporate ambition cases that are about whether companies have
Speaker 5: to reduce their emissions going forward. Some of the other
Speaker 5: cases have put forward more sector specific calculations in terms
Speaker 5: of emissions reductions. So, for example, there's a case against
Speaker 5: the cement company Haltzeem in Switzerland, another one of the
Speaker 5: carbon majors, and in that case the plaintiffs use some
Speaker 5: data from the IPCC where the global emissions reduction target
Speaker 5: is translated into a sector specific target for cement, which
Speaker 5: I think is forty two percent. Or there is a
Speaker 5: loss brought by Greenpeace and others against Volkswagen against VW
Speaker 5: in Germany, which is also very similar in the sense
Speaker 5: that it's about getting VW to switch more quickly towards
Speaker 5: electric cars and reduce its scope three emissions that way,
Speaker 5: and there there was a very specific calculation that was
Speaker 5: made for Volkswagen in terms of translating these global targets
Speaker 5: to stay in line with one point five degrees. So
Speaker 5: this is possible. But in the Shell case, the CORE
Speaker 5: didn't find enough evidence to do or they found that
Speaker 5: necessary evidence to calculate it specifically for Shell hadn't been
Speaker 5: put forward. But that's not to say that it couldn't
Speaker 5: be done in the fairly near future.
Speaker 1: Do you think that that leaves the door open for
Speaker 1: follow up case that have that calculation included.
Speaker 5: I imagine there will be many follow up cases on this,
Speaker 5: so with the better scientist, with a bit more scientific
Speaker 5: research there, I imagine calculation of the necessary emissions reduction
Speaker 5: can be done specifically for Shell and for other companies
Speaker 5: like Shell. So it's likely that there are going to
Speaker 5: be more cases like this in the future. Another interesting
Speaker 5: point is that the court actually raised something else which
Speaker 5: hadn't been brought up by the plaintiffs, namely that in
Speaker 5: the court's opinion, it may be not it doesn't seem
Speaker 5: to be in line with existing targets, with existing emissions
Speaker 5: budgets if Shell is producing new fossil fuels, so they
Speaker 5: basically said there may be a legal obligation for them not.
Speaker 5: It's almost seemed like the invitation from the court, who
Speaker 5: isn't to bring new cases against Shell over oil explor
Speaker 5: exploration and production.
Speaker 1: I asked Toolings about this evidence gap as well. It
Speaker 1: strikes me and I heard this from Noah this morning
Speaker 1: as well, that what a lot of it speaks to
Speaker 1: is the need for some additional scientific evidence, but that's
Speaker 1: not an insurmountable level to reach. What's your take on
Speaker 1: what's needed to be able to say this percentage is
Speaker 1: what's required, and here's how they are or are not
Speaker 1: hitting it. What's sort of the evidence gap?
Speaker 2: I guess yes, you could say it's an evidence gap
Speaker 2: or a normative gap that the Court felt uncomfortable and
Speaker 2: crossing on it.
Speaker 3: So I think part of it is science.
Speaker 2: But the science, I.
Speaker 3: Think mostly is already there.
Speaker 2: It's how to translate the science, and maybe I can
Speaker 2: take a step back.
Speaker 3: And the real win of the more defense approach.
Speaker 2: Has been it's already been codified, it's already been adopted
Speaker 2: into more. When the Court in first instance ruled that
Speaker 2: Shell as is obligated to reduce its emissions, that basically
Speaker 2: paved the way for EU legislation all large companies too.
Speaker 3: Not just publish their emissions and publish.
Speaker 2: A plan to reduce their emissions, but they also have
Speaker 2: to put that plan into effect. The specific piece of
Speaker 2: regulation that contains its key provision, it's called the Corporate
Speaker 2: Sustainable Due Diligence Directive, and the Shell ruling, the initial one,
Speaker 2: paved the way for this.
Speaker 3: So that obligation is there.
Speaker 2: It's not just applicable to Shell, its applicable all large companies,
Speaker 2: irrespectable of what sector they operated.
Speaker 3: That is the real win.
Speaker 2: The European Union European Commission will also issue guidance.
Speaker 4: That guidance will contain the sexual pathways that the Court
Speaker 4: was looking for, and those will be issued well before
Speaker 4: the directive kicks into action, which is July twenty twenty seven.
Speaker 3: So sheall has bought itself some time, but not that much.
Speaker 1: Here's Noah Locker Crawford again.
Speaker 5: In a whole lot of ways, they actually lost. And
Speaker 5: even though it wasn't successful in terms of binding or
Speaker 5: obliging Shell to commit to certain emissions reductions, it did
Speaker 5: set an important precedent. So when the judge was reading
Speaker 5: out the verdict on Tuesday in the court, she first
Speaker 5: discussed all the kind of fundamental points, all the substantial
Speaker 5: points at stake here, and she said that, yes, corporations
Speaker 5: like Shell do have to abide by the Paris Agreement.
Speaker 5: They do have to take action legally required to take
Speaker 5: action to address climate change. In the verdict itself, the
Speaker 5: judges addressed the argument that Shell made that they have
Speaker 5: no responsibility for their Scope three emissions. The Court said
Speaker 5: this argument does not hold water. So the Court made
Speaker 5: very clear that corporations like Shell fossil fuel companies have
Speaker 5: a legal responsibility for these emissions, so this is not
Speaker 5: a reason for Shell or other fossil fuel companies to
Speaker 5: celebrate with this kind of strategic litigation. With climate litigation,
Speaker 5: we've seen in the past that these cases build on
Speaker 5: each other, much the way we saw with litigation against
Speaker 5: tobacco companies in the past, which took decades and where
Speaker 5: there were many unsuccessful cases, but with each case you
Speaker 5: could learn something and move to the next one.
Speaker 1: I asked Walker Crawford if companies headquartered in countries that
Speaker 1: are not signed on to the Paris Climate Accord or
Speaker 1: that pull out of it the United States could also
Speaker 1: be affected by this ruling.
Speaker 5: Yes. Absolutely, Whatever country's corporations operate on in their subject
Speaker 5: to that country's laws, and if that country says that
Speaker 5: corporations need to abide by the Paris targets, for example,
Speaker 5: that's something that they can ultimately be held liable for
Speaker 5: in that jurisdiction.
Speaker 1: When I read this ruling, one of the things that
Speaker 1: I was thinking about was the extent to which a
Speaker 1: lot of these companies are pushing false solutions.
Speaker 2: This particular ruling didn't really deal with ccs or a
Speaker 2: carbon dioxide remobile. It's definitely something that the fossil fuel
Speaker 2: companies are leaning on, and that the level of dependency
Speaker 2: is really problematic, especially in the long run. We need
Speaker 2: real emission reductions now and they have to be drastically
Speaker 2: reduced to is actual exactly what the court said. What
Speaker 2: the court also said is Shell has currently lots of
Speaker 2: expansion plans, eight hundred fields they currently have in development,
Speaker 2: and that's simply I reconcile.
Speaker 5: Currently, we're in a situation where this technology is being
Speaker 5: celebrated by a lot of actors, including the big oil companies,
Speaker 5: as a technology that will help fight climate change if
Speaker 5: it's sufficiently scaled in the future. In a sense, this
Speaker 5: gives these companies somewhat of a free card to continue
Speaker 5: emitting more based on the promise that technology will help
Speaker 5: capture lots of carbon in the future. But that's not guaranteed.
Speaker 5: We don't know whether that's actually going to be possible,
Speaker 5: and so this is an issue. And when we're talking
Speaker 5: about emissions reduction pathways, some of the pathways that are
Speaker 5: put forward by fossil fuel companies assume that there will
Speaker 5: be significant carbon capture in the future. But since that's
Speaker 5: not guaranteed. From a scientific standpoint, we might say that's
Speaker 5: wishful thinking. If we want to be on the safe side,
Speaker 5: we need to reduce emissions more drastically. Today we can
Speaker 5: depend on technologies that might or might not be feasible
Speaker 5: in the future.
Speaker 6: Right has estimated the potential of carbon capture actually at
Speaker 6: a much higher level than other oil majors, which is
Speaker 6: interesting in the context of a case like this where
Speaker 6: they're saying, well, you're not taking into account all the
Speaker 6: things that we're doing to contribute to acting on climate.
Speaker 5: Yeah. Yeah, that's why it's all the more important to
Speaker 5: explain very clearly to the courts in these cases what
Speaker 5: kinds of assumptions are being made in different emissions reductions pathways.
Speaker 5: And so in this case there was a legal discussion
Speaker 5: where the plaintiffs and SEE and the others and defendant
Speaker 5: Shell we're putting forward very different figures of what kinds
Speaker 5: of emissions of reductions will be necessary. But the problem
Speaker 5: here is that when Shell, we're putting forward arguments that
Speaker 5: was based on the idea that ccs will play a
Speaker 5: significant role in the future. But if it doesn't, then
Speaker 5: those pathways that are claiming will be possible, they won't
Speaker 5: work to keep emissions in line with the Paris Agreement targets.
Speaker 1: That's a huge thing to look out for in the
Speaker 1: year ahead, especially as our reporting and others is increasingly
Speaker 1: finding not only that carbon capture does not live up
Speaker 1: to the potential that oil companies describe, but also that
Speaker 1: they are well aware of the technology's shortcomings. I asked
Speaker 1: Tollings what else to look out for in the next year.
Speaker 2: There are already a number of cases that have been
Speaker 2: inspired if you will bet a shell case.
Speaker 3: So there are cases.
Speaker 2: Pending against Total in France, against Peariba or It's fonsil
Speaker 2: field financing in Fronce where similar measures are sought to
Speaker 2: reduce the emissions or to stop funding fossil fuel expansion,
Speaker 2: as a case pending against Volkswagen in Germany. There's a
Speaker 2: case pending against the Cement Company, one of the other
Speaker 2: carbon majors in Switzerland on the half of inhabitants of
Speaker 2: an Indonesian ireland, where similar measures are sought. One case
Speaker 2: I find particularly interesting has been filed in Italy against
Speaker 2: any the Shell of Italy, a large fossil fuel company.
Speaker 2: And the interesting thing with them is that they are
Speaker 2: partially state owned.
Speaker 3: About five percent of the.
Speaker 2: Shares are owned by them is to finance and the
Speaker 2: twenty five percent are owned by the State Development Bank,
Speaker 2: and they are co defended in the case. And the
Speaker 2: demand against them is to bring their voting policy as
Speaker 2: a state in line with the Paris Agreement. So I
Speaker 2: think that points to particularly interesting avenue where state owned
Speaker 2: enterprises are pursued via the state as a shareholder to
Speaker 2: implement those very same duties the state duties the human
Speaker 2: rights climate obligations through their voting policies.
Speaker 3: I think that's a powerful living one that votes will
Speaker 3: for the future.
Speaker 1: And that's it for this time. I hope you found
Speaker 1: that breakdown of the Shell case interesting and we'll definitely
Speaker 1: be keeping an eye on these and other cases as
Speaker 1: they move forward. Thanks for listening, and don't forget to
Speaker 1: check out Drilled Dot Media for more