Incubator project: A Shell Game — The Use of Science in Climate Change Litigation

Output

In August 2022, we used insights from the court case to write an opinion piece for the Dutch Newspaper NRC about the importance of governing claims to so-called ‘residual emissions’ and the resources needed to remove them in the future. In October 2022, we presented our project and insights at the Earth System Governance conference, linking to the working group on Climate Transparency, Accountability and Litigation. We are also in the process of producing a scientific journal article that contains our results in more detail.

Background

Climate litigation is on the rise worldwide, and the Netherlands, with its recent ground-breaking climate court cases, is becoming a focal point for international attention. On May 26th 2021, a coalition of advocacy groups including Milieudefensie obtained a landmark court ruling against Royal Dutch Shell. The advocates’ most important point was that Shell’s continued investment in oil and gas runs counter to key scientific insights, namely the need for the world to become ‘net-zero’ by 2050 in order to have a chance at limiting global warming to below 2 degrees Celsius. The court decided in favour of the advocacy groups, ordering Shell to increase its interim emissions reductions goal from 20% by 2030 to 45% by 2030 (compared to 2019). While the advocacy groups cited the science of the Intergovernmental Panel on Climate Change (IPCC) to make their case, Shell itself relies on the same science to argue for the continuation of its business model.

Our approach

The recent court case in the Netherlands highlights the key role of science for policy and law making. We used this incubator to study how judges, advocacy groups and Royal Dutch Shell itself utilised climate science to make their case. A part of our analysis was to study how fundamentally different actions and positions can be justified with the same science. To study the case, we first conducted an in-depth argumentative analysis of the summons, the response and the verdict. We then built an analytical framework based on the results, identifying danger and responsibility as two key argumentative dimensions. Finally, we applied this framework to re-analyse the three texts and parse out the argumentative structure used by the three participants in the court case.

Anticipatory climate litigation

Using combined legal, policy, STS and climate science expertise, we found the MDF vs. Shell case to represent a new kind of approach to climate litigation: Instead of making ex-post claims for past damages, the claimants in this case focused on ex-ante responsibility for future endangerment. This difference is a key explanatory factor for the success of the case. Given that the attribution of a specific climate effect to the behaviour of a specific actor is notoriously difficult, providing a waterproof chain of evidence that links the two is one of the greatest hurdles for ex-post climate litigation. In ex-ante, or what we call ‘anticipatory climate litigation’, this kind of chain of evidence can be much looser and better reflects the complex nature of climate change science.

A game of confidence

We also found that to make a convincing case in anticipatory climate litigation, the presentation and perception of scientific and political consensus are key. Consensus and legitimacy were at the heart of this court case, and parties used references to authoritative organizations, well-known universities and international agreements to argue for why the science that they were presenting was the most relevant and legitimate. Often, science and policy were connected – it was thus less about particular numbers, and more about the impression that there was a strong consensus around the need for prioritizing one type of behaviour (e.g. reducing emissions in the short term), over another (e.g. providing affordable energy for development).

We express our thanks to the Wageningen Center for Sustainability Governance for financial support on this project.