An Apology Leading to Dystopia: Or, Why Fuelling Climate Change Is Tortious

Abstract

This invited response commentary engages with Benoit Mayer's case comment, published in this issue of Transnational Environmental Law, on the recent landmark decision by the District Court of The Hague (The Netherlands) of May 2021 in Milieudefensie v. Royal Dutch Shell. The Court ordered the oil giant Royal Dutch Shell to reduce at least 45% of its greenhouse gas emissions by 2030 compared with 2019 levels. In this response commentary I build on and contrast Mayer's examination of how the Court arrived at this target. In doing so, I discuss the normativity of tort law compared with international law against the background of the ideas of Martti Koskenniemi. I conclude that the District Court legitimately qualified Shell's business plans as tortious. The specific reduction target is the result of civil procedural rules on evidence and the debate between the parties. In the light of this analysis, I respectfully reject Benoit Mayer's suggestion that sectoral practices should play a more significant role in determining corporate climate mitigation obligations. In my view, such an approach would be dangerously apologetic and lead to dystopian outcomes.

The Legal Form of Climate Change Litigation: An Inquiry into the Transformative Potential and Limits of Private Law

“…Milieudefensie 11 is a landmark case (for different interpretations of the decision see Mayer 2022;Burgers 2022;Paiement 2023). In it, the District Court of The Hague states that climate change hampers Dutch citizens' human rights (I will return in Part III to the exclusion of standing on behalf of citizens from the global South and its implication): the defendant company (Shell) has a duty of care to mitigate climate change and to limit its GHG emissions.…”