On November 12, 2024, the Court of Appeal of The Hague (in the Netherlands) delivered its opinion in the Shell climate litigation. Paraphrasing the Court, the case revolved around the question whether Shell had the obligation to reduce its CO2 emissions by 45% by 2030 relative to 2019 levels. An NGO (Milieudefensie) had sought a court order to this effect on the basis that Shell acted unlawfully if it failed to reduce its emissions by 45%. In its judgment the Court of Appeal ruled that, on the basis of objective factors, Shell had an obligation to counter dangerous climate change. However, this finding did not imply that a civil court could establish that Shell should reduce its CO2 emissions by 45%, or any other percentage. In other words, the Court ruled that companies like Shell have a duty to mitigate dangerous climate change, but that the court cannot determine the extent of such a duty, meaning that the court cannot be used to enforce such a duty against a company.

This case note analyses the reasoning of the court. The court deduces the existence of a behavioral duty (to contribute to combatting global warming) on the part of Shell from the standard of care from Dutch tort law. I criticise this part of the judgement, because no precautionary duties can be derived from the standard of care from tort law. The standard of care in negligence is a measuring instrument that can be used to determine ex post whether certain behaviour conformed to the standard of due care. Tort law, however, does not contain a duty to behave with due care that would be ex ante (before damage has occurred or been proven) enforceable through injunctions. I also criticise the way in which Dutch courts, as opposed the more reasoned opinions of German courts in the litigation against the major German car firms, brushed aside the “political question” doctrine in the Shell litigation.