The Shell judgment: following developments in society is unlawful? Noblesse oblige?

On 26 May 2021, the The Hague District Court rendered a much talked-about judgment in the case of Milieudefensie et al. v. Shell.

In the judgment, the Court has ordered Shell to reduce the CO2 emissions of the entire Shell group worldwide to such an extent that the annual net volume of those emissions will at the end of 2030 have reduced by at least 45% relative to the 2019 level (the Reduction Obligation).

Milieudefensie had requested such order and inter alia invoked the right to life and the right to respect for private and family life. The Court holds that Milieudefensie cannot directly invoke these human rights vis-à-vis Shell. However, due to the fundamental interest of human rights and the value for society as a whole they embody, the human rights may nonetheless play a role in the relationship between Milieudefensie and Shell, said the Court.

The Court factors in the human rights and the values they embody in its interpretation of the unwritten standard of care, which means that acting in conflict with what is generally accepted according to unwritten law is unlawful. From this standard of care ensues, according to the Court, that when determining the Shell group’s corporate policy, Shell must observe the due care exercised in society and, hence, the Reduction Obligation.

The Court acknowledges that Shell’s policy, policy intentions and ambitions are already aimed at emissions reduction, but the Court finds that these plans (‘ambitions’ and ‘intentions’) largely amount to rather intangible, undefined and non-binding plans for the long-term (2050). In particular, the Court takes issue with the disclaimer that the plans are dependent on the pace at which society moves (‘in step with society and its customers’). According to the Court, Shell’s policy mainly follows developments in society. In doing so, Shell disregards its individual responsibility, which requires it to actively effectuate the Reduction Obligation, said the Court.

That is a striking consideration. Apparently, Shell can, according to the Court, act in conflict with what is generally accepted by following developments in society. But isn’t what is generally accepted determined by what society accepts as legal norms? And since these norms are apparently not (sufficiently) established – society could also move slower according to the Court – is it then even possible to hold that Shell acts in conflict with an unwritten norm if it follows developments in society? Can the unwritten norm for a party like Shell be different than the one for the average participant in economic transactions? Something like: noblesse oblige?

However desirable emissions reduction may be, we haven’t heard the last of what the unwritten norm for Shell entails. This is an important point that will have to be reconsidered on appeal and probably also by the Dutch Supreme Court.

For more information, please contact Theodoor Verheij.