2022 – One year after the Shell ruling: Great victories and next steps for resolving climate disputes

Yesterday marks one year since the landmark court ruling in the Netherlands, which required Shell to cut carbon emissions in its operations by 45 per cent from 2019 levels in a bid to align with the Paris climate agreement. The ruling was a milestone in the climate litigation and demonstrates the courts’ potential ability to contribute to a just climate future. What’s Next?

Originally published by the Union of Concerned Scientists, Eq.
Written by L Delta Merner

The following year saw more significant developments in climate disputes aimed at holding companies and governments accountable for climate damage. With hundreds of climate-related cases and lawsuits progressing through courts around the world, I wanted to highlight some important victories, advances, and exciting new cases, all of which have occurred in the short time since the Shell ruling.

Philippines finds reasons to hold companies accountable

Earlier this month, the Philippines Commission on Human Rights (CHR) released the findings of a seven-year investigation documenting the connection between the deliberate actions of the world’s largest carbon emitters and climate-related human rights abuses in the Philippines. The report concluded that major oil, gas, coal and cement producers bear the responsibility to protect human rights and take remedial action.

Based on research by the Union of Concerned Scientists and others, the commission’s report found that fossil fuel companies have fully understood the climate impacts of their products since 1965, when their scientists discovered them. Instead of warning the world to stay away from fossil fuels, the industry has spent the past 50 years spreading disinformation and obstructing government action. According to the Center for Human Rights report, the industry’s actions were “motivated not by ignorance but by greed.”

According to the commission, a blackout on the industry’s climate science and its efforts to prevent a carbon transition could make fossil fuel companies legally liable, which argued that the companies violated standards of honesty and good faith established under Philippine law.

The Commission’s pioneering work is only the beginning. Their findings have the potential to influence legal opinion in other jurisdictions, and the commission has called on human rights institutions in other countries to conduct similar research.

Movement in American Courts

Lawsuits have multiplied in the United States to hold major oil and gas companies accountable for their role in the harms associated with global warming. Despite the length of the defendants’ litigation, which has stymied many cases in recent years, a number of significant victories have been achieved over the past year.

Since the Shell ruling, major oil and gas companies have lost court decisions in Baltimore, California, Colorado and Massachusetts. In addition, ExxonMobil and Chevron recently failed again to take their non-federal case in Rhode Island to federal court, which the two companies believe is a friendlier place. On the same day, the Massachusetts Supreme Court unanimously ruled that ExxonMobil’s attempt to dismiss the state’s consumer fraud lawsuit against the oil company was unanimous.

In March, I wrote about a US climate lawsuit in Hawaii. A state judge has ruled that the Honolulu case against several major oil companies can be taken to state court for fraudulent practices. With this ruling, the case can enter the “discovery” stage, an important next step in court proceedings. This is the first time a climate conflict has developed to this extent in the United States. The investigation phase will allow plaintiffs’ attorneys to view internal industry documents that can strengthen their case.

nNew approaches to climate conflict

As the effects of climate change increase, so are the types of lawsuits in climate disputes. Here are three new legal approaches to watch in the coming year.

In March, a unique case against Shell’s board of directors was announced. The lawsuit aims to hold them personally responsible for their failure to adopt and implement a climate strategy in line with the Paris Agreement. According to the lawsuit, the failure to lead an effective transition is a breach of the Board’s duties under UK Companies Act. This lawsuit points to a previous legal victory against Shell in the Netherlands. This ruling called on Shell to tackle emissions along the entire value chain, including pollution from burning Shell products. Now, a year later, the Shell board of directors has sought to narrow its responsibilities to address emissions from only Shell’s production and manufacturing operations.

Around the same time, a lawsuit was filed in France against TotalEnergies, the country’s largest energy company, for misleading the public with net-zero false claims. TotalEnergies launched a campaign that announced it could reach net zero emissions if it did, and plans include massive expansion of fossil fuels. The lawsuit argues that TotalEnergies’ advertising campaign is a form of disinformation, ultimately designed to delay urgent climate action and violate EU directives on unfair consumer practices. The lawsuit asks the courts to ban such misleading ads.

In April, the California attorney general launched an investigation into the role of major oil companies in the global plastic pollution crisis. Re-examining the deceptive practices of the oil industry, this investigation will attempt to determine whether the industry has broken the law by allegedly misleading the public about the possibility of recycling plastic products. This is a new approach to examining accountability mechanisms for the fossil fuel industry’s role in the climate crisis. Plastic is closely related to climate change: about 4 to 8 percent of annual global oil consumption is related to plastic.

The importance of climate differences

Climate-related lawsuits characterize climate protection today, and we’re seeing impressive successes. According to the latest report from the Intergovernmental Panel on Climate Change (IPCC), climate litigation has “impacted the outcomes and ambition of climate policy”. The report goes on to say:[o]Aside from formal climate policy processes, climate conflicts are an important arena for various actors to confront and interact on how to manage climate change.”

Despite clear scientific evidence showing potential current and future effects of climate change, carbon dioxide emissions have generally increased over the past year worldwide. According to the International Energy Agency, the increase in global carbon emissions of more than two billion tons in 2021 was the largest in recorded history and more than offset the decline associated with the pandemic the previous year. Governments and industries are heading in the wrong direction, but strategic and deliberate litigation, as Shell’s judgment has shown, can help ensure accountability and purposeful action to reverse course.

Dr. Merner provides timely scientific evidence to support legal cases that blame fossil fuel companies for climate-related damage.


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