Climate Law Insider, Newsletter 6/2021

Your monthly news on Climate Law
For more in-depth analysis go to lexxion.eu/cclr

CLIMATE LAW INSIDER
Newsletter 6/2021, 03 June 2021

List of Contents

  • Milieudefensie and Others Win Historical Case against Shell before the Hague District Court
  • Updating the German EU Climate Law: Immediate Response to Historic Ruling
  • UNFCCC Bottom-up Regime: New Efforts to Model National Decarbonisation
  • First Constitutional Climate Case in the Caribbean: Guyanese People Challenge Exxon’s Offshore Oil Drilling Project
  • Federal Court of Australia: Government has a Duty to Protect Young People from the Climate Crisis

 

- Milieudefensie and Others Win Historical Case against Shell before the Hague District Court -
On 26 May, in an unprecedented ruling, the Hague District Court in the Netherlands ordered Royal Dutch Shell (RDS) to reduce the CO2 emissions of the Shell group by net 45% in 2030, compared to 2019 levels, through the Shell group's corporate policy. Milieudefensie, as the representative of 17,379 individual claimants, and six other NGOs, originally filed the class action. From a procedural perspective, the court briefly discussed the admissibility of class actions, in which it stressed that only the claims of those NGOs that work for the public interest of the inhabitants of the Wadden Sea area are admissible, thus denying both the individual claims and those from one NGO whose area of work is in Africa. Additionally, the Court deemed that RDS’ adoption of the Shell group’s corporate policy constitutes an independent cause of action for environmental damage with respect to Dutch residents and the inhabitants of the Wadden region, thus confirming the applicability of Dutch law. Substantively, the Court identified an obligation of result for RDS which translates to emissions reduction of the Shell group’s entire energy portfolio and the aggregate volume of all emissions (Scope 1 through to 3). The Court also found that there is an obligation of conduct, or ‘significant best-efforts obligation’, with respect to the Shell group’s business relations, including with end-users. To reach this conclusion, the Court interpreted the unwritten standard of care laid down in Dutch Civil Code as including the due care RDS must observe when it establishes its corporate policy. Amongst other aspects, the Court included in its analysis of ‘standard of care’, the policy-setting position of RDS in the Shell group; the Shell group’s CO2 emissions; the consequences of the CO2 emissions for the Netherlands and the Wadden region; the right to life and the right to respect for private and family life of Dutch residents; and the UN Guiding Principles on Business and Human Rights (UNGPs). According to legal experts, this judgment is remarkable because the Court overcomes a major hurdle for the applicants to overcome, and that is the application of the standard of care to corporate actors through the use of ‘non-binding goals (under the Paris Agreement) and a non-binding instrument (the UNGPs) as interpretative tools’. Finally, the similarities with the Urgenda case are manifold, namely its reliance on tort law to draw emission reductions obligations, the likelihood of being appealed until reaching the final judicial instance, and the strong message it signals concerning the power of litigation to combat the climate crisis.

Learn more:https://sites.uef.fi/cceel/shell-shocked-a-watershed-moment-for-climate-litigation-against-fossil-fuel-companies/

- Updating the German EU Climate Law: Immediate Response to Historic Ruling -
After the German Constitutional Court’s ruling on the German Climate Law last month (see CLI 05/2021), the government promptly tabled a revised version of the law. Although the court had given the government until 2022, the cabinet agreed in less than two weeks on a more ambitious GHG reduction target for 2030 (-65%), an interim target for 2040 (-88%), and to pull forward the net zero GHG target from 2050 to 2045. In addition, for the first time, the new bill now includes specific targets for deliberate carbon removal from land use, land use change and forestry (LULUCF).
Debates on how to implement a policy-mix that leads to the achievement of these targets are ongoing and are likely to be part of the upcoming election campaign and the process of forming a government after the general elections this September. Clean Energy Wire provides a summary of latest developments, the history of the German Climate Law and its essential components here and here. The graph below illustrates the new decarbonisation pathway set into legally binding obligations once the Climate Law is formally adopted.
Learn more: https://www.bmu.de/gesetz/entwurf-eines-ersten-gesetzes-zur-aenderung-des-bundes-klimaschutzgesetzes/

- UNFCCC Bottom-up Regime: New Efforts to Model National Decarbonisation -

With the implementation of the bottom-up elements of the new UN climate regime, policy-relevant climate science is paying greater attention to national emissions reduction scenarios. In Nature Climate Change, Fujimori et al. propose a systematic and standardised scenario framework for long-term national scenarios to coordinate modelling of decarbonisation pathways, increase compatibility, and build capacity for modelling. Promoting comparability of national targets and model results will be policy-relevant in light of the global stocktake under the UNFCCC, which begins in 2023. Exploring these issues also touches on the politically contentious issues of climate justice and fairness. Dooley et al. have recently pointed to critical gaps in the discussion of how to incorporate equity considerations into modelling and policymaking; a debate that is likely to heat up in the coming years. In climate science, policymaking and climate litigation.

Learn more:https://www.nature.com/articles/s41558-021-01048-z

- First Constitutional Climate Case in the Caribbean: Guyanese People Challenge Exxon’s Offshore Oil Drilling Project -
On 21 May, Guyanese citizens filed a constitutional complaint challenging the government’s approval of a massive, ExxonMobil-led oil and gas buildout off the country’s coast. The applicants challenge the fossil fuel production on the grounds that it exacerbates global warming and thus threatens human rights. They argue that the authorisation of the offshore oil operations violates the government’s legal duty to protect their rights to a healthy environment, sustainable development and the rights of future generations. Guyana is central to ExxonMobil’s expanding oil production and its largest play outside of the Permian Basin. At the same time, further development of its oil reserves puts the country at risk in two specific ways: locally, its rich biodiversity and status as a carbon sink is at risk due to the planned oil drilling, and globally, Guyana belongs to the most vulnerable nations impacted by the climate crisis, with parts of its country, including its capital city, lying below sea level. Still, the government entered Exxon’s Petroleum Production Agreement which requires the country to repay the company for exploration and development costs. The – substantial – financial risks of the project are thus shifted to the people of Guyana at a time when even the International Energy Agency warned that the world must immediately halt approvals of new oil and gas projects.
Learn more:https://www.ciel.org/news/guyana-consitutional-court-case-oil-and-gas/

- Federal Court of Australia: Government has a Duty to Protect Young People from the Climate Crisis -
In Sharma and others v Minister for the Environment eight high school students brought a class action against the Australian Federal Environment Minister for approving a major extension to the Vickery coal mine in New South Wales. In its judgment from 27 May, the Federal Court of Australia found that the Minister has a duty of care not to cause harm to the younger generation from climate change. One of the student plaintiffs, Ava Princi, 17, said, ‘I’m thrilled because this is a global first. We understand it is the first time a Court of law, anywhere in the world, has ordered a government to specifically protect young people from the catastrophic harms of climate change.’
While this finding is groundbreaking in itself, the Court stopped short of issuing an injunction to prevent the Minister from approving the mine extension. Instead the Court called upon the parties to confer on proposed orders over the future of the proposed project, which the Court will consider in the near future.

Learn more:http://climatecasechart.com/climate-change-litigation/non-us-case/raj-seppings-v-ley/

Getting to Zero
- Getting to Zero: Climate Change Mitigation and Land Use | Free Online Session -
https://dev.lexxion.eu/en/events/getting-to-zero-climate-change-mitigation-and-land-use/#overview

Achieving ‘net-zero GHG emissions’ (or ‘climate neutrality’) has become one of the most relevant targets of climate mitigation policies worldwide. In this context, the ‘land sector’ plays a crucial role.
Join us for a online session to discuss our recent Special Issue which sheds light on how legislation in the land sector can contribute to achieving ‘net-zero’ GHG emissions through case studies and analyses of legal frameworks in multiple countries.
The Special Issue was prepared through a collaboration of members of the IUCN World Commission on Environmental Law (WCEL)’s Climate Change Specialists Group (CCSG). It was Guest Edited by Fabiano de Andrade Correa and Christina Voigt.

Register For Free:https://dev.lexxion.eu/en/events/getting-to-zero-climate-change-mitigation-and-land-use/#register

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Kind Regards,
Anne, Juan, and Felix

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