Unofficial English translation of Shell's Statement of Defense

On April 5th, 2019, the environmental group Milieudefensie/Friends of the Earth Netherlands and co-plaintiffs served Shell a court summons alleging Shell’s contributions to climate change violate its duty of care under Dutch law and human rights obligations. The case was filed in the Hague District Court. Co-plaintiffs include other NGOs (ActionAid NL, Both ENDS, Fossielvrij NL, Greenpeace NL, Young Friends of the Earth NL, Waddenvereniging) and more than 17000 citizens. The plaintiffs seek a ruling from the court that Shell must reduce its CO2 emissions by 45% by 2030 compared to 2010 levels and to zero by 2050, in line with the Paris Climate Agreement. 

This case builds on the landmark Urgenda decision which found that the Dutch government’s inadequate action on climate change violated a duty of care to its citizens. In the suit against Shell, plaintiffs extend this argument to private companies, arguing that given the Paris Agreement’s goals and the scientific evidence regarding the dangers of climate change, Shell has a duty of care to take action to reduce its greenhouse gas emissions. Plaintiffs base this duty of care argument on Article 6:162 of the Dutch Civil Code as further informed by Articles 2 and 8 of the European Convention on Human Rights (ECHR) which guarantee rights to life (Article 2) and rights to a private life, family life, home, and correspondence (Article 8). Plaintiffs’ argument outlines how Shell’s long knowledge of climate change, misleading statements on climate change, and inadequate action to reduce climate change help support a finding of Shell’s unlawful endangerment of Dutch citizens and actions constituting hazardous negligence. 

In November 2019, Shell submitted a Statement of Defense. Shell argued, among other defenses, that there is no legal standard, statutory or otherwise, that would establish that Shell is acting in conflict with an unwritten legal standard by failing to comply with emissions caps. Shell also argued that plaintiffs' claims are too general to fall within the scope of ECHR Articles 2 and 8. 

In September and October 2020, the parties provided their evidence for factual and legal justification. Four days of hearings were then held on 1, 3, 15 and 17 December 2020. Documents from the hearings are available <a href="https://en.milieudefensie.nl/news/overview-of-legal-documents-climatecase-against-shell">here</a>. 

On May 26, 2021, the Hague District Court ordered Shell to reduce its emissions by 45% by 2030, relative to 2019, across all activities including both its own emissions and end-use emissions. The Court wrote that it "orders [Royal Dutch Shell (“RDS”)], both directly and via the companies and legal entities it commonly includes in its consolidated annual accounts and with which it jointly forms the Shell group, to limit or cause to be limited the aggregate annual volume of all CO2 emissions into the atmosphere (Scope 1, 2 and 3) due to the business operations and sold energy-carrying products of the Shell group to such an extent that this volume will have reduced by at least net 45% at end 2030, relative to 2019 levels." In other words, the Court ordered Shell to reduce emissions by a net 45% across both emissions from its own operations and emissions from the use of the oil it produces. The Court made its decision provisionally enforceable, meaning Shell will be required to meet its reduction obligations even as the case is appealed. 

In its decision, the Court allowed the class action by Milieudefensie, Greenpeace NL, Fossielvrij NL, Waddenvereniging, Both ENDS, and Young Friends of the Earth NL because the interests served in the class action aligned with the objectives stated in their articles of association. The Court rejected claims by ActionAid, because its operations were not geared toward Dutch citizens, and individual claimants, because their interests were already served by the class action and they did not present independent interests.

The Court wrote "RDS’ reduction obligation ensues from the unwritten standard of care laid down in Book 6 Section 162 Dutch Civil Code, which means that acting in conflict with what is generally accepted according to unwritten law is unlawful." Plaintiffs had argued that, stemming from this standard of care, Shell had an obligation to prevent dangerous climate change through its policies, and the Court applied the standard of care to the company's policies, emissions, consequences of its emissions, and its human rights and international and regional legal obligations. The Court concluded that the standard of care included the need for companies to take responsibility for Scope 3 emissions, especially "where these emissions form the majority of a company’s CO2 emissions, as is the case for companies that produce and sell fossil fuels."

In applying this standard of care to Shell, the Court concluded that it must reduce its Scope 1, 2, and 3 emissions, across its entire energy portfolio, by 45% by 2030, relative to 2019 emission levels. The Court gave Shell flexibility in allocating emissions cuts between Scope 1, 2, and 3 emissions, so long as in aggregate, the total emissions were reduced by 45%. The Court wrote, "With respect to the business relations of the Shell group, including the end-users, this constitutes a significant best-efforts obligation, in which context RDS may be expected to take the necessary steps to remove or prevent the serious risks ensuing from the CO2 emissions generated by them, and to use its influence to limit any lasting consequences as much as possible. A consequence of this significant obligation may be that RDS will forgo new investments in the extraction of fossil fuels and/or will limit its production of fossil resources."

The Court rejected arguments by Shell that the EU Emissions Trading System (ETS) preempted further emissions cuts ordered by the court, and arguments that the reduction obligation would have no effect. The Court rejected the ETS argument on the grounds that the ETS only applies to some of the emissions in Europe Shell is responsible for, and the ETS does not cover emissions outside the EU. The standard of care, on the other hand, requires Shell to reduce all global emissions that will harm Dutch citizens. Further, the Court rejected the claim that a reduction obligation would have no effect because such emissions would be substituted by other companies. The Court wrote that it remains to be seen whether other companies will substitute Shell production in the face of Paris Agreement obligations and noted the causal relationship between production limitation and emissions reduction. The Court wrote, "The court acknowledges that RDS cannot solve this global problem on its own. However, this does not absolve RDS of its individual partial responsibility to do its part regarding the emissions of the Shell group, which it can control and influence."

On July 20, 2022, Shell appealed the decision.  

On April 25, 2022, Milieudefensie sent a letter to Shell’s Board of Directors calling for urgent action to comply with the verdict of May 26, 2021 and warning for personal liability risks towards third parties resulting from a failure to act. 

On November 12, 2024, the Court of Appeal in The Hague issued its judgment on the appeal. It followed the First Instance Court by deciding that Shell carries a legal duty of care to curb dangerous climate change, following from Dutch tort law, read in light of international human rights law instruments, as well as EU and international climate law. The Court of Appeal thus generally endorses the interpretative approach of the Court of First Instance. However, the appeals court overturned the judgment by refusing to impose a specific emission reduction target for Shell. It concludes that there is insufficient scientific consensus about a specific reduction percentage or pathway that an individual company such as Shell should adhere to. It is not possible to impose on Shell a specific legal obligation to cut its emissions by 45% by 2030 as compared to 2019. Of note is that the reduction obligation still encompasses both Scope 1, 2 and 3 emissions. However, especially for the scope 3 emissions, the Appeals Court sees important obstacles in law and practice to impose a specific reduction aim, or to legally require GHG-related activities to be limited in a specific way (e.g., achieving reductions in certain sectors, forbidding the sales of gas and oil products specifically). In relation to the Scope 1 and 2 obligations, the Court is unwilling to impose a specific reduction target, but notes at the same time that Shell seems to be on its way to achieving its own current (stricter) reduction target of 45% by 2035 compared to 2016. In relation to the Scope 3 emissions, the Appeals Court seems to be more open to the argument that limitations on the sales of certain products may lead to other companies substituting for the Scope 3 emissions curbed by Shell. However, this Court also hints at the fact that especially investments in new fossil fuel production activities could be at odds with its duty of care to curb dangerous climate change. It considers that this activity is not sufficiently at the heart of this case, though; the issue under consideration is chiefly whether Shell could be obliged to reduce its total emissions by any specific rate by 2035. The Court rules that this is not the case.

In February 2025, Milieudefensie announced that it would appeal the decision to the Supreme Court of the Netherlands, requesting a specific rate of emissions reductions.


Milieudefensie et al. v. Royal Dutch Shell plc.

<p>This entry was provided by the Sabin Center for Climate Change Law. Please see the terms of use for citation and licensing of third party data.</p>

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

People who are less able to respond to the effects of climate change due to having limited financial or physical assets

A tax advantage is a fiscal incentive where the government reduces or exempts selected activities, goods or actors from taxes.

A loan is a policy instrument where funds are provided to a borrower with the expectation of repaying the principal plus interest.

Direct investments by the governments using public funds. This can be to support climate initiatives or integrate climate into other projects.

Financial support to help individuals manage the effects of unexpected events, securing their livelihoods and increasing the resilience of people and businesses to the changing climate. It’s especially vital in developing regions where everyday risks, climate-related weather extremes, or crop failures can push people into poverty. Without insurance, people may have to resort to selling assets or cutting consumption to cope with losses.

Tradable permits are market-based tools that grant permission for specific activities, frequently used to regulate emissions. These permits can be issued within a trading system to manage environmental impacts.

Codes and standards are regulatory instruments that specify minimum standards to protect health and safety. This ranges from performance standards, which prescribe outcomes while allowing flexibility to achieve compliance, to the more prescriptive approach of technology-specific standards.

The processes through which enterprises can identify, prevent, mitigate and account for how they address their actual and potential adverse impacts. Due diligence is the idea that reasonable precautions should be taken to avoid causing harm to people, the environment, or society. It also involves identifying and mitigating risks before they occur.

A ban is a legal action that prevents the sale or supply of a product or service, or that recalls a product from the market. Examples are bans on SF6, greenwashing, fossil fuel advertisement or single-use plastics.

A company that is owned wholly or partially by the state, typically operating in key sectors.

A target to reduce the prevalence of a greenhouse gas over a specific time frame

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Conditions that enhance the feasibility of adaptation options. Enabling conditions include finance, technological innovation, strengthening policy instruments, institutional capacity, multi-level governance and changes in human behaviour and lifestyles.

Actions or measures to adapt terrestrial systems to climate change.

Actions or measures to adapt freshwater systems to climate change.

Actions to adapt human health, healthcare systems and well-being to climate change.

Actions to adapt and increase the resilience of rural and urban infrastructure and settlements to climate change.

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

A potent, short-lived greehouse gas, largely released from livestock, fossil fuel extraction and waste management.

Replacing technologies that burn fossil fuels directly with alternatives powered by electricity.

Actions to reduce emissions in energy generation and supply.

Investment in electricity transmission and distribution systems capable of integrating renewable energy, supporting electrification and strengthening energy system resilience.

Technologies that capture and hold energy in reserve for later use.

Risks to the ecosystem health of the marine environment, including ocean warming, ocean acidification, and ocean deoxygenation, harming biodiversity, species health, ecosystem services, and coastal community livelihoods.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

Air pollution involves harmful contaminants in the air, affecting both indoor and outdoor environments. It can lead to health issues like respiratory diseases and heart problems, and climate impacts such as global warming. Pollutants can damage plants, trees, habitats, and water bodies like rivers and lakes.

Energy derived from biological compounds that are renewable due to their short life cycle within the carbon dioxide cycle.

Social inclusion is the process of improving the terms on which individuals and groups take part in society—improving the ability, opportunity, and dignity of those disadvantaged on the basis of their identity.

Production of electricity and heat from solar irradiation.

Kinetic energy of airflow transformed into useful energy, mostly electrical energy.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

Coal is a combustible sedimentary rock formed from carbonised plant matter, rich in carbon and hydrocarbons, and occurring in several main types including hard coal and brown coal.

People with different national or cultural traditions from the dominant population

Social and cultural groups that share collective ancestral ties to the lands and natural resources where they live, occupy or from which they have been displaced

Jobs that contribute to preserving or restoring the environment. We include jobs which require a high amount of green skills or which spend much of their time on green activities, as well as jobs transforming polluting industries.

woman and genders outside of the gender binary

Any compulsory, unrequited payment to the government levied on corporations or individuals. This can be for environmental reasons, such as introducing a Carbon tax to set a price that emitters must pay for the greenhouse gases they emit.

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

The activities of industries that transforms raw materials into finished goods through industrial processes.

The activities of industries involved in the production, distribution, and sale of energy, including electricity, gas, and renewables.

This sector involves managing waste treatment, sanitation, pollution control and environmental cleanup.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

This sector involves the wholesale and retail selling of goods.

This sector involves activities to move goods and people, alongside the storage of products.

This sector creates and distributes information and entertainment through television, radio, print, and digital platforms.

This sector provides communication services, software development, and IT solutions.

This sector involves activities that impart knowledge and skills to individuals, including formal schooling, vocational training and educational support.

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

Activities that involve the cultivation of crops and raising of livestock for food, fibre, and other products essential for human life and industry.

Activities that relate to the production of goods and services from forests.

This sector involves the distribution, treatment, and conservation of water resources.

Climate change can have a range of impacts on technological system. Extreme weather events can cause infrastructure failures like power outages or damage to roads and bridges, as well as the impacts from waste following natural disasters. Human activities also cause technological impacts, such as the risks posed by oil spillage and leaks.

Any substance with chemical properties that can cause physical harm to people or damage the environment, including ammonia, carbon monoxide, phosphine, chlorine, arsenic, cadmium, mercury, pesticides, dioxins, microplastics, benzene, asbestos, aflatoxins, fluoride, methanol, and toxins from marine sources.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

The cryosphere is the frozen part of the Earth—it includes sea ice, glaciers, snow, and ice sheets. It helps regulate the climate and weather by reflecting sunlight. Rising temperatures are causing melting, leading to sea ice loss, glacier collapse, and glacier landslides and avalanches. This threatens the livelihoods of around 700 million people who rely on the cryosphere for food, water security, and cultural practices.

Milieudefensie et al. v. Royal Dutch Shell plc. - reply

Target

Policy instrument

Risk

Impacted group

Just transition

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance