By Gisselle García and Florencia Ortúzar*
The Milieudefensie vs. Shell case in the Netherlands deserves special analysis because of its impact on climate litigation against companies responsible for the climate crisis.
In Latin America, these lawsuits are less frequent than in other parts of the world, perhaps due to fear of retaliation from powerful corporations or the difficulty of building cases against actors with virtually inexhaustible sources of resources. However, lawsuits with international repercussions like this one could pave the way for more of them in the region.
Let's analyze what is happening between Milieudefensie —the Dutch branch of the environmental organization Friends of the Earth—, its allies and Shell, one of the most powerful oil companies in the world.
What is the lawsuit about?
In 2018, seven NGOs and more than 17,000 plaintiffs dared to confront the giant Shell, filing a class action lawsuit demanding that the multinational align its operations with the Paris Agreement and drastically reduce its CO2 emissions .
Specifically, they requested:
- Mandatory emissions reduction:
- Shell should reduce its CO₂ emissions by at least 45% by 2030 compared to 2019 levels.
- That this reduction included all of its global operations, not just those in the Netherlands.
- That Shell assume responsibility for the emissions of its customers and suppliers (so-called Scope 3 emissions), resulting from the use of its products.
- Shell's acknowledgment of legal responsibility:
- That the court recognized that Shell had a legal obligation to prevent climate damage.
- That the company be held responsible for its contributions to the climate crisis under the principle of "duty of care" of Dutch civil law.
- A court order to force Shell to change its corporate strategy:
- That the court order Shell to adjust its business model to align with international climate goals.
The landmark 2021 ruling
In May 2021, the District Court of The Hague issued a landmark ruling that was celebrated worldwide by the environmental movement. Shell was found responsible for its contribution to climate change and ordered to reduce its CO2 emissions by 45% by 2030, compared to 2019 levels—much faster than the company had planned.
It was the first time that the courts had directly held a company responsible for its contribution to climate change, establishing a climate due diligence obligation, which translated into concrete measures to reduce its emissions, in line with international commitments such as the Paris Agreement.
Shell's appeal and the setback, in 2024
But the story didn't end there. Shell appealed the decision, and in November 2024, the International Court of Appeal in The Hague partially overturned the ruling. While the court reaffirmed Shell's climate responsibility, it removed the requirement for a specific 45% reduction in its emissions, arguing that a court cannot impose concrete targets on a private company.
On the one hand, the court noted that, while climate science supports the need to reduce emissions, there is no universal law or standard that allows for determining the amount of reduction Shell is required to make. Furthermore, it cited the so-called "substitution effect," according to which reducing Shell's fuel production would not necessarily lead to a reduction in emissions, as the space could easily be filled by other fossil fuel producers.
What does this case mean for climate litigation?
Although the appeal ruling is a disappointment, as it weakens the practical impact of the first instance ruling by eliminating the requirement for Shell to specifically reduce emissions, it remains a valuable precedent for the development of climate litigation.
The ruling upholds the recognition that companies have a climate due diligence obligation, which translates into a legal obligation to reduce their emissions. This is an inspiring case for other similar actions that could contribute to greater accountability in the business sector.
The case strengthens the environmental movement demanding greater accountability from fossil fuel companies, reaffirming that this is a matter of justice. Ultimately, the case demonstrates that the courts can be an effective avenue for demanding climate action, as well as informing the development of legal strategies in favor of the environment and climate.
The award of costs
One striking aspect of the 2024 ruling is that it ordered the plaintiffs to pay the court costs, despite the significant disparity in financial resources between the NGOs and one of the world's largest oil companies. However, this is more common in litigation in the Global North than one might expect from a Latin American perspective. In the Netherlands, the losing party is always ordered to pay costs at every stage of the proceedings, even if they don't lose entirely. Following the 2021 ruling, Shell paid the costs to the NGOs, and when they appealed, they were prepared to do so, even anticipating the amount they would have to pay if they lost.
What's next?
The case is not yet closed; there is still the final instance before the Supreme Court of the Netherlands, where the appeal decision could be overturned.
The hearings before the Supreme Court are expected to take place during this year and part of next year, and a final verdict is expected by 2026.
We will have to keep a close eye on the evolution of this trial, which so far has been presented as a paradigmatic case that could significantly influence future climate litigation.
Gisselle García is a lawyer at AIDA and Florencia Ortúzar is the director of AIDA's Climate Program.
By Gisselle García and Florencia Ortúzar*
The Milieudefensie vs. Shell case in the Netherlands deserves special analysis because of its impact on climate litigation against companies responsible for the climate crisis.
In Latin America, these lawsuits are less frequent than in other parts of the world, perhaps due to fear of retaliation from powerful corporations or the difficulty of building cases against actors with virtually inexhaustible sources of resources. However, lawsuits with international repercussions like this one could pave the way for more of them in the region.
Let's analyze what is happening between Milieudefensie —the Dutch branch of the environmental organization Friends of the Earth—, its allies and Shell, one of the most powerful oil companies in the world.
What is the lawsuit about?
In 2018, seven NGOs and more than 17,000 plaintiffs dared to confront the giant Shell, filing a class action lawsuit demanding that the multinational align its operations with the Paris Agreement and drastically reduce its CO2 emissions .
Specifically, they requested:
- Mandatory emissions reduction:
- Shell should reduce its CO₂ emissions by at least 45% by 2030 compared to 2019 levels.
- That this reduction included all of its global operations, not just those in the Netherlands.
- That Shell assume responsibility for the emissions of its customers and suppliers (so-called Scope 3 emissions), resulting from the use of its products.
- Shell's acknowledgment of legal responsibility:
- That the court recognized that Shell had a legal obligation to prevent climate damage.
- That the company be held responsible for its contributions to the climate crisis under the principle of "duty of care" of Dutch civil law.
- A court order to force Shell to change its corporate strategy:
- That the court order Shell to adjust its business model to align with international climate goals.
The landmark 2021 ruling
In May 2021, the District Court of The Hague issued a landmark ruling that was celebrated worldwide by the environmental movement. Shell was found responsible for its contribution to climate change and ordered to reduce its CO2 emissions by 45% by 2030, compared to 2019 levels—much faster than the company had planned.
It was the first time that the courts had directly held a company responsible for its contribution to climate change, establishing a climate due diligence obligation, which translated into concrete measures to reduce its emissions, in line with international commitments such as the Paris Agreement.
Shell's appeal and the setback, in 2024
But the story didn't end there. Shell appealed the decision, and in November 2024, the International Court of Appeal in The Hague partially overturned the ruling. While the court reaffirmed Shell's climate responsibility, it removed the requirement for a specific 45% reduction in its emissions, arguing that a court cannot impose concrete targets on a private company.
On the one hand, the court noted that, while climate science supports the need to reduce emissions, there is no universal law or standard that allows for determining the amount of reduction Shell is required to make. Furthermore, it cited the so-called "substitution effect," according to which reducing Shell's fuel production would not necessarily lead to a reduction in emissions, as the space could easily be filled by other fossil fuel producers.
What does this case mean for climate litigation?
Although the appeal ruling is a disappointment, as it weakens the practical impact of the first instance ruling by eliminating the requirement for Shell to specifically reduce emissions, it remains a valuable precedent for the development of climate litigation.
The ruling upholds the recognition that companies have a climate due diligence obligation, which translates into a legal obligation to reduce their emissions. This is an inspiring case for other similar actions that could contribute to greater accountability in the business sector.
The case strengthens the environmental movement demanding greater accountability from fossil fuel companies, reaffirming that this is a matter of justice. Ultimately, the case demonstrates that the courts can be an effective avenue for demanding climate action, as well as informing the development of legal strategies in favor of the environment and climate.
The award of costs
One striking aspect of the 2024 ruling is that it ordered the plaintiffs to pay the court costs, despite the significant disparity in financial resources between the NGOs and one of the world's largest oil companies. However, this is more common in litigation in the Global North than one might expect from a Latin American perspective. In the Netherlands, the losing party is always ordered to pay costs at every stage of the proceedings, even if they don't lose entirely. Following the 2021 ruling, Shell paid the costs to the NGOs, and when they appealed, they were prepared to do so, even anticipating the amount they would have to pay if they lost.
What's next?
The case is not yet closed; there is still the final instance before the Supreme Court of the Netherlands, where the appeal decision could be overturned.
The hearings before the Supreme Court are expected to take place during this year and part of next year, and a final verdict is expected by 2026.
We will have to keep a close eye on the evolution of this trial, which so far has been presented as a paradigmatic case that could significantly influence future climate litigation.
Gisselle García is a lawyer at AIDA and Florencia Ortúzar is the director of AIDA's Climate Program.