This Dutch class action, spearheaded by several environmental NGOs, was brought against Royal Dutch Shell ("RDS"), the head of a multinational group of companies headquartered in the Netherlands and the UK (the "Shell Group"). In essence, the claimants argued that RDS owed a duty to Dutch citizens to protect them from the adverse effects of climate change. The claimants alleged that RDS breached the standard of care it owed to them by failing, in implementing globally applicable Shell Group corporate policies, to sufficiently commit to reducing its level of emissions to an appropriate level by 2030. In 2021 the Dutch District Court agreed with the claimants and held that RDS had breached its duty of care. We wrote a detailed briefing on this decision and its application to the UK here.
This claim received significant press attention at the time, and spawned several copy-cat claims (including in Belgium and Germany) (more on this below). In March 2022, the RDS filed its Statement of Appeal and announced that it expected the appeal process would take between two and three years. Under Dutch law, appeals are heard de novo, which means the decisions of the lower court will be fully scrutinised and, of course, may be overturned.
This delay is notable because at the time the claim was filed the activists were pushing for significant changes to the Shell Group's emissions within ten years (i.e. by 2030): given the time that has already passed, and given that the appeal process may take a further two to three years, then from the claimant's perspective (even in a best case scenario) there has been five years of inaction and half the time to act has passed.
In acknowledgement of this delay the claimants have continued to push for change, albeit via a PR route. In April 2022 Milieudefensie, through its lawyers, wrote an open letter to the directors of Shell plc to criticise the Shell Group's decision to continue to fight the claim in the Netherlands, suggesting that (i) the Shell Group could become liable for "unprecedented liability risks" in respect of its carbon emissions, and (ii) Shell plc's directors could become personally liable for their perceived failure to do what is necessary to meet the goals of the Paris Agreement. In parallel with this effort, in the UK ClientEarth also wrote to the directors of Shell plc alleging that the directors had failed to implement a climate strategy that is in-keeping with the goals of the Paris Agreement. ClientEarth's letter had slightly more punch, however, as it was the precursor to a derivative action filed in February 2023 (we will shortly be publishing a briefing on the subject of derivative actions in the UK, and will address this ClientEarth claim in detail).
Relatively little media attention was given to the decision to appeal and until the appeal process ends there is little to report. It is interesting to see both Milieudefensie and ClientEarth have continued to draw media attention to the claim via plugging the gap with media campaigns and alternative legal strategies. The claim, while stalled for a prolonged period of time, has needed to be supplemented by PR strategies (and secondary litigation) in order to keep the claim in the limelight.