The Netherlands is experiencing climate change litigation against a private actor in Milieudefensie et al. v. Royal Dutch Shell. The claimants alleged Shell’s contributions to climate change violated their duty of care under Dutch law and human rights obligations, seeking a ruling from the court ordering Shell to reduce their CO2 emissions by 45% by 2030, compared to 2010 levels, and zero in 2050 in line the Paris Agreement.

Regarding standing, Dutch civil law enables associations to bring class actions against private entities.  Therefore, in Milieudefensie et al. v. Royal Dutch Shell, the plaintiffs claimed their standing based on the same legal norm used in Urgenda (Art. 3:305a Dutch Civil Code), which granted the claimants standing as representatives of present and future generations. Furthermore, under Dutch civil law, individuals are entitled to bring class actions only when they have a sufficiently concrete individual interest.

The plaintiffs claimed that the company had violated its social duty of care. More precisely, they resorted to the following legal grounds:

  • Social standard of care derived from unwritten law: Under Dutch tort law (Art. 6:162 section 2 Dutch Civil Code), a tortious act can also be defined as “a violation of what according to unwritten law has to be regarded as proper social conduct.” When looking for a standard of unwritten law, different legal sources, including principle of laws, juridical views and customs, can be used. In Milieudefensie et al v. Shell, the plaintiffs interpreted the standard of care on the following legal grounds:
    • Kelderluik criteria (as interpreted in Urgenda): which was taken from the 1965 Supreme Court on damage caused unknowingly by creating a dangerous situation (Cellar Hatch case) and is used to determine whether a conduct equates to unlawful endangerment. The claimants explicitly referred to the interpretation of such criteria in the Urgenda case. The plaintiffs claimed that in Urgenda the Court had formulated a legal standard of a general nature, applicable in the climate context to all the “injurying parties” that fulfilled the Kelderluik criteria in a similar way to the state, and that such standard could be applied to Royal Dutch Shell.
    • Human rights, namely the right to life (Art. 2 ECHR) and private and family life (Art. 8 ECHR), which, based on the decision in Urgenda, the Court concluded that offer protection against dangerous climate change.
    • Soft law, namely the following sources as they had been endorsed by Shell:
      • UN Guiding Principles on Business and Human Rights (United Nations Human Rights Office of the High Commissioner, 2011), which was decisive in defining the content of the company’s standard of care. This included: avoidance of causing or contributing to human rights impacts through their activities and to address adverse impacts when they occur; and, seek to prevent or mitigate adverse impacts that are directly linked to their operations, products, or services by their business relationships, even if they have not contributed to those impacts. 
      • UN Global Compact
      • OECD Guidelines for Multinational Enterprises.

Based on the above, the plaintiffs claimed that Shell has an obligation to contribute to preventing climate change through the corporate policy it determines for the company group. The District Court, in its decision in May 2021, agreed with the plaintiffs that Royal Dutch Shell’s obligations ensued from the unwritten standard of care, that is, “the due care exercised in society”.

Finally, regarding Royal Dutch Shell specifically, the Court identified the following obligations:

  • an obligation of result to reduce the emissions deriving from Shell group’s activities
  • a best-efforts obligation, regarding Shell’s business relations, and end users, to “take the necessary steps to remove or prevent the serious risks ensuing from the CO2 emissions generated by them and use its influence to limit any lasting consequences as much as possible.” (Based on the previous considerations, the court ordered Royal Dutch Shell to limit or cause to be limited its scope 1, 2 and 3 emissions– as due to the group’s activities (scope 1 emissions), its business relationships (scope 2 emissions), and the sold products  (scope 3 emissions)– by at least 45% at end of 2030, relative to 2019 levels.)

The Netherlands also witnessed climate change litigation against a private actor in 2017, when several complaints were submitted to the National Contact Point reporting on a violation the OECD Guidelines for Multinational Enterprises against the Dutch multinational ING Bank. (Complaints against ING Bank by Oxfam Novib, Greenpeace, BankTrack en Milieudefensie)

Under Dutch tort law, claimants can bring a tort claim by proving they have suffered damage caused (to some extent) by the private actor.

Claims can then be based on the following grounds:

  • Violation of a duty of care under Dutch tort law (Dutch Civil Code, Art. 6:162): Although the Akpan v. Royal Dutch Shell PLC case was only successful against the Nigerian subsidiary (and not the parent company in the Netherlands), the Court ruled upon a violation of duty of care. The Court deemed the subsidiary liable for negligence due to the lack of preventive measures.
  • OECD Guidelines for Multinational Enterprises: These guidelines include the duty to adopt ‘measurable objectives’ and ‘targets for improved environmental performance’ and to disclose greenhouse gas emissions, both ‘direct and indirect, current and future, corporate and product emissions’. Complains can be brought before the National Contact Point. Successful complaints might even give rise to further climate litigation before domestic civil courts.

The Netherlands has witnessed several administrative law cases against the commissioning of new coal fired power plants between 2008 and 2016. These concerned the construction of three new coal fired power stations in two locations on the Dutch coast as part of the Dutch energy security policy.

Regarding standing, the General Administrative Law Act provides that ‘interested parties’ may appeal against decisions taken by the public authorities, including authorizations to development projects. (Section 8:1:1). Individuals are considered “interested” when they are directly affected by the decision, whereas environmental organizations  need to prove that the interest they represent, including the general and collective ones, may be affected. (Section 1:2, General Administrative Law Act).

Regarding grounds for project-specific litigation, it should be noted that it is not possible to challenge policies before administrative courts. Moreover, CO2 emissions of installations cannot be regulated under environmental permits (cf. the EU Industrial Emission Directive), meaning that project permits will not specifically address climate change impacts.

Moreover, NGOs could initiate project-specific litigation on the basis of Dutch and EU nature and conservation law (e.g. the EU Wild Bird and Habitat Directives). It was to these latter grounds that the plaintiffs resorted to, in the cases against the construction of the coal power plants. (Administrative Law Decisions of the Council of State decisions of February 2008, ECLI:NL:RVS:2008:BC5785;4 May 2011, ECLI:NL:RVS:2011:BQ3434;24 August 2011, ECLI:NL:RVS:2011:BR5684; 30 October 2013, ECLI:NL:RVS:2013:1694; 27 January 2016, ECLI:NL:RVS:2016:170, District Court of Amsterdam, 7 April 2008, ECLI:NL:RBAMS:2008:BC9281).  In Stichting Greenpeace Netherlands v. Board of Zeeland Provincial Executive, the environmental NGO claimed that due to the plants’ vicinity to protected areas under the EU Birds and Habitat directive, the projects’ impacts needed to be investigated before authorizing the plants’ construction.  (Administrative Law Division of the Council of State decision of 28 February 2008, ECLI:NL: RVS:BC5785) Along with other NGOs, Greenpeace appealed the revised decisions that followed, based on the same legal grounds, until their final judicial uphelding in 2016.

As for the remedies, under the administrative law, courts might dispose the annulment of the decision, whenever the appeal is admissible and well-founded, or provisional measures, where speed is essential to preserve the interests involved (sections 7:25 and 8:81 of the General Administrative Law Act). In the mentioned cases, the plaintiffs asked for either a preliminary injunction, i.e., to stop the construction of the power plants until further investigation, or for the annulment of the decision. As an example, in Stichting Greenpeace Netherlands v. Board of Zeeland Provincial Executive, the Council of State agreed to stop the construction, while demanding to research on the project’s impacts on the protected species. ((Administrative Law Division of the Council of State decision of 28 February 2008, ECLI:NL: RVS:BC5785) In 2011, the new decision authorizing the construction was annulled based on its failure to properly consider the project’s adverse impacts, including the emissions of sulphur and nitrogen oxide. (Administrative Law Decision of the Council of State of 24 August 2011, ECLI: NL: RVS: 2011: BR5684) Finally, in 2016 the Council of State put an end to the legal saga, considering that the municipal decision had thoroughly considered the conservation requirements in its impact assessment (27 January 2016, ECLI:NL:RVS:2016:170)

Further project-specific litigation to challenge insufficient (or the lack of) adaptation measures could rely on Article 21 of the Dutch Constitution(i.e. the economic right to the ‘liveability’ of the country) to interpret broad open norms within the regulatory and administrative regime (e.g. within spatial planning and the environment or flooding). Moreover, litigation against carbon-intensive projects could rely on the revised EIA directive, which includes climate change among the factors to be considered in a project’s impact assessment (art. 3 lett. C EU Directive 2014/52).

The Netherlands has experienced climate change litigation challenging the State for ineffective climate action in Urgenda Foundation v. State of the Netherlands. This case observed the claimants challenging the Dutch government for failing in being ambitious enough in their national climate change policy (to reduce greenhouse gas emissions by 17%). The claimants were successful, and the court concluded that failing to reduce greenhouse gas emissions by at least 25% by end of 2020 would find the Dutch Government in violation of Articles 2 and 8 of the European Convention on Human Rights (ECHR). The claimants based their claim on the following grounds, and under Dutch tort law (Dutch Civil Code, Book 6, Art.162), to establish an unlawful action or inaction:

  • Establishing an action contrary to legal norms: the claimants argued that the current Dutch climate policy violates Article 2 and 8 ECHR and Article 21 of the Dutch Constitution. As these human rights target natural persons, NGOs cannot invoke these human rights. Nevertheless, they do play a role in interpreting open norms, such as the unwritten duty of care standard.
  • Establishing a violation of the duty of care: in order to establish the unwritten duty of care standards, the Court heavily relied on a number of binding and non-binding rules and principles. Although the claimant cannot directly rely on international law obligations, as they are directed to States, they can play a role in interpreting open standards. The Court relied on the following grounds:

Regarding standing, non-governmental organisations (NGOs) can initiate a public interest case (Article 3:303a Dutch Civil Code). In the Urgenda case, the District Court (The Hague District Court C/09/456689) clarified that Urgenda, as a legal person, cannot be considered as a victim under Art. 34 ECHR. However, based on the mentioned civil law norm, NGOs like Urgenda have standing to bring class actions on behalf of individuals whose rights under Art. 2 and 8 of the ECHR have been violated. Therefore, the Court accepted standing for the Urgenda Foundation as a representative of both current and future generations by referring to the aim of the foundation (i.e. striving for a more sustainable society) (s [2018] The Hague Court of Appeal 200.178.245/01).

Remedial action includes a court order to the State to change of its climate change policy, and more specifically, to achieve a stricter emission target (Urgenda case)

Additionally, there may be scope for further climate litigation challenging the state for ineffective climate actionunder Dutch tort law, concerning the Climate Plans under the new Climate Law of 2018, if they are found to be too weak. In addition, further tort cases could focus on insufficient adaptation measures. These could include grounds, such as human rights, international climate law and Article 21 of the Dutch Constitution (i.e. the economic right to the ‘liveability’ of the country).