Shell continues to expand its oil and gas operations and approve development of new extraction projects in an apparent violation of a 2021 Dutch court ruling requiring the oil major to reduce CO2 emissions across its entire supply chain by 45 percent by 2030, a new report suggests. The report released today by Milieudefensie (Friends of the Earth Netherlands) and Oil Change International comes just two weeks before the scheduled court hearings on Shell’s appeal of the landmark verdict. That ruling, issued on May 26, 2021 by the District Court in The Hague in a climate lawsuit brought by Milieudefensie, marked the first time in the world that a court had ordered a polluting company to take responsibility for the climate crisis by reducing emissions and aligning its business with the objectives of the Paris Agreement, which aims to limit global temperature rise to well below 2°C - preferably to 1.5°C. Expert reports and analyses, meanwhile, have confirmed that development of new oil and gas fields is incompatible with mitigation scenarios that hold dangerous warming to the 1.5°C limit. In its 2023 update to its Net Zero Roadmap report, the International Energy Agency states that “there is no need for investment in new coal, oil and natural gas” in the pathway that reduces emissions to net zero by 2050. The Intergovernmental Panel on Climate Change warns in its 2023 synthesis report that “projected CO2 emissions from existing fossil fuel infrastructure without additional abatement would exceed the remaining carbon budget for 1.5°C.” The head of the IEA, Fatih Birol, further warns in a 2023 report that the oil and gas industry faces “a moment of truth” in terms of its role in the clean energy transition, noting that this transition requires “much lower demand for oil and gas, which means scaling back oil and gas operations over time – not expanding them.” Yet expanding its extractive operations is precisely what Shell is doing, according to the new report titled Shell vs. the Climate: Expanding oil and gas, fueling the climate crisis. The report finds that Shell has approved the development of at least 20 new oil and gas extraction assets since the May 2021 Dutch court verdict. That is double the number of approved new extraction projects reported in a previous briefing from Milieudefensie and OCI in September 2022. The 20 new projects in total could result in emissions of 753 million metric tons of cumulative CO2 pollution, which is more than fives times the emissions of the Netherlands in 2021, the report notes. Shell approved six new oil and gas projects in 2023 alone. Any new project approvals are at odds with the Paris Agreement, Milieudefensie and OCI argue. “Any expansion of oil and gas goes against the court order for Shell to reduce its carbon dioxide emissions by 45% by 2030,” the organizations state in a press release. The report also found that Shell has ownership in full or in part in over 800 oil and gas assets yet to be developed, which threaten an additional 5.3 billion metric tons of CO2 emissions (38 times the emissions of the Netherlands in 2021). The projected volume of undeveloped oil and gas in Shell’s portfolio has increased by 24 percent since the 2022 briefing. “Rather than writing off undeveloped oil and gas as incompatible with 1.5°C, Shell is actively seeking more of it,” the report explains. Data on Shell’s assets, including production and investment plans, comes from Rystad Energy. The analysis from Milieudefensie and OCI is limited to the production and resulting emissions from oil and gas that Shell directly extracts, which makes up less than half of the total products that Shell sells. The vast majority of Shell’s supply chain emissions comes from the combustion of the company’s products (whether extracted directly by Shell or not), known as “Scope 3” emissions, and Shell is obligated to cut these emissions per the District Court’s mandate. Rather than shrinking its oil and gas business or investing more in renewable energy or other alternative fuels, however, Shell is doubling down on its extractive operations after raking in record profits of around $40 billion in 2022. Shell is expected to invest more than $13 billion annually in upstream oil and gas extraction through 2030, with much of that projected to go towards developing new extraction assets, particularly in fossil gas and “liquefied natural gas” (LNG). Last year Shell announced it would not gradually decline oil production by 1-2% annually until 2030, as the company had previously promised. Shell has also cut spending on its “renewables and energy solutions” segment.
In its Statement of Defense on Appeal filed with the Dutch appeals court, Milieudefensie argues that Shell’s current corporate policy “still provides for very large-scale investments in oil and gas and will consequently lead to no or hardly any emissions reductions on the part of the Shell Group by 2030.” The implication is that Shell is therefore defying the reduction obligation that the District Court imposed on it. As Miliudefensie notes in its Statement: “Shell has chosen to largely ignore a judgment which was declared to be immediately enforceable.” “The Court ordered Shell to reduce its total emissions by 45%. Since the vast majority of emissions caused by Shell’s business activities stem from the production, processing and sales of oil and gas, Shell must begin winding down these fossil fuel businesses across the board,” Milieudefensie’s Sumeyra Arslan, a co-author of the new report, told Climate in the Courts. “Serving as one of the important evidences in the appeal, this report shows what hides behind the greenwashing efforts of Shell,” she added. “The new strategy of Shell to focus more on fossil fuels and reduce its investments in renewables is a recipe for disaster and is not in line with the court's verdict.” In an emailed statement responding to the report, Shell argued that it is “playing an important role in the energy transition by providing energy needed today while investing in low-carbon energy solutions of the future.” “We expect LNG will play a critical role in the transition as it provides a secure supply of energy and will enable the world to make the most immediate progress in reducing emissions by replacing coal growth in industry,” a Shell spokesperson said in the statement. “Note that the court ruling in the climate case gives Shell broad discretion to determine how the emissions reduction should be achieved. Importantly, the court did not impose a prohibition on new oil and gas investments,” the Shell spokesperson added. The Court of Appeal in The Hague will hear Shell’s appeal of the 2021 verdict in early April, with proceedings scheduled for April 2, 3, 4, and 12, 2024.
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Lawyers representing oil and gas industry defendants in a climate lawsuit brought by the city and county of Honolulu are calling on the US Supreme Court to quash this suit and others targeting the industry as the cases start advancing towards trial. Warning that the industry faces the threat of billions of dollars in damage awards if the litigation proceeds, the industry lawyers argue in a freshly filed petition that the Court “should put a stop to it”, adding that this is likely the Court’s only chance to weigh in on these high stakes climate court cases in the near future.
In a certiorari petition submitted to the Supreme Court of the United States on February 28, the oil companies say the Court should decide “whether the state-law claims asserted in this nationwide litigation are even allowable before the energy industry is threatened with potentially enormous judgments.” Specifically, they are asking the Court to review a recent ruling from the Hawaii Supreme Court affirming that Honolulu’s climate lawsuit could advance towards trial under state tort law. The industry defendants in this case, which include major petroleum producers like Chevron, BP, and ExxonMobil, had argued unsuccessfully that federal law preempts state law in cases they say are about global climate change. Now they want the nation’s highest federal court to decide this question of whether federal law precludes state law claims in climate liability lawsuits. Honolulu’s case is one of more than two dozen cases brought by municipal and state governments against fossil fuel companies alleging the companies lied to consumers and the public about the climate consequences of their products, effectively inflating sales and delaying and obstructing the transition away from fossil fuels. Some of the lawsuits seek to recover damage costs associated with localized climate impacts and adaptation, some seek to hold companies like Exxon liable for alleged consumer fraud, and others take a hybrid cost-recovery and consumer fraud approach. But for the most part the cases are all brought under state law, including tort claims like public nuisance and failure to warn as well as violations of state and local consumer protection statutes. A pair of cases filed by communities in Puerto Rico features federal racketeering charges as well as state law claims. Similar to tobacco and opioid litigation, these climate lawsuits attempt to hold a powerful industry accountable for the harmful effects of its products and for its deceptive conduct. The new Supreme Court petition comes as many of the climate lawsuits have overcome initial procedural hurdles and are starting to address the substantive allegations – the “merits.” As industry lawyers explain in the petition: “Litigation on the merits in these cases is beginning in earnest, with discovery and pretrial proceedings underway in state courts.” Discovery is the pre-trial evidence gathering phase, and in these types of cases about corporate deceit, that involves obtaining internal documents and questioning former and current industry executives and insiders under oath. Fossil fuel defendants in Honolulu’s case and other climate suits against them have tried to avoid getting to this stage in litigation by asserting that only federal courts should handle these proceedings. Courts have resoundingly rejected these arguments, but the bid to try to force the lawsuits into federal courts has effectively delayed the litigation from swiftly getting to trial. At every turn, industry lawyers have mounted challenges to procedural rulings against their clients. They have even sought US Supreme Court review several times already. In October 2020, the Supreme Court did grant their petition to review a narrow technical matter in a climate case brought by the city of Baltimore. The Court heard oral arguments in January 2021, and its decision directed several federal appeals courts to reconsider defendants’ arguments in a handful of climate suits including Baltimore’s case. More recently, the Supreme Court in 2023 declined to take up the industry’s petitions to review appellate rulings affirming that these climate cases can proceed in state courts. In an order list issued on April 24, 2023, the Court denied cert petitions in climate cases filed by the city and county of Boulder in Colorado, the city of Baltimore, several coastal communities in California, Honolulu, and the state of Rhode Island. In denying the petition in Boulder’s case, the Court noted that Justice Samuel Alito – who owns stock in several oil companies – took no part in the decision, and that Justice Brett Kavanaugh was in favor of granting the petition. It remains to be seen whether the Court will accept or decline Big Oil’s latest petition, which one climate law expert described as a “Hail Mary” bid. “The fact that the Court denied cert in the Boulder case despite Kavanaugh’s dissent suggests there aren’t 4 votes to grant it in this case,” Patrick Parenteau, emeritus professor of law and senior fellow for climate policy at Vermont Law and Graduate School, told Climate in the Courts. Michael Gerrard, faculty director of the Sabin Center for Climate Change Law at Columbia Law School, said he fully expected industry defendants to once again turn to the Supreme Court for help. “This may be their best and last shot at avoiding multiple state court trials that would put them in a harsh spotlight and cost them very high legal fees, with a risk of massive judgments at the end,” Gerrard said. He added that he expects fossil fuel defendants in some of the other climate cases to try to further delay proceedings by requesting that courts pause or “stay” the litigation while the Supreme Court petition in Honolulu’s case is pending. “If the Supreme Court takes the case we probably won't have a decision until well into 2025,” Gerrard told Climate in the Courts. Oil Companies Say Lawsuits Pose a “Serious Threat” to Their Industry Lawyers working on behalf of Chevron and ExxonMobil appear to be leading fossil fuel defendants’ latest plea to the US Supreme Court to intervene before the companies are forced to face trial. Theodore J. Boutrous Jr. of the firm Gibson, Dunn & Crutcher LLP - lead counsel for Chevron - and Kannon Shanmugam and Theodore Wells, Jr. of the firm Paul, Weiss, Rifkind, Wharton & Garrison LLP – representing Exxon – are among the named lawyers listed on the front of the new cert petition in Sunoco LP et al., Petitioners v. City and County of Honolulu et al. In their petition, they argue that climate accountability lawsuits like Honolulu’s case are essentially impermissible attempts to regulate interstate and global greenhouse gas emissions, which they say are the source of the alleged climate damages. According to the industry lawyers, the Hawaii Supreme Court got it wrong in finding that “emissions were not the source of [Honolulu’s] injuries; [companies’] marketing and public statements were.” It is an argument they have repeatedly made in hearings and briefs in these climate cases, attempting to characterize the litigation as focused on global emissions while deflecting from the core allegations of deception, fraud and misleading marketing and advertising. “Industry spokespersons keep trying to make these cases about regulation and policy and politics,” Parenteau said. “But they aren’t about any of that. They are about the recovery of some of the costs incurred as a result of the companies deliberate and ongoing campaign of lies and deception about the dangers of their products.” More than three dozen communities across the US have filed climate accountability lawsuits against Big Oil over the past seven years, and more cases continue to be filed. The most recent filing came about two weeks ago by Chicago, the third-largest city in the country. “Those cases present a serious threat to one of the Nation’s most vital industries,” lawyers for Big Oil state explicitly in their cert petition. Climate accountability advocates say the industry feels the walls closing in and is desperate to evade having to face trial. “In light of the growing body of evidence of Big Oil’s climate fraud and deception, and lower courts’ continued rejection of their efforts to escape trial, it’s no surprise that fossil fuel companies are once again attempting to escape accountability,” said Alyssa Johl, general counsel with the Center for Climate Integrity. “Communities across the country deserve their day in court to hold Big Oil accountable for their climate lies and the damages they’ve caused.” The State of New York has filed a climate lawsuit against JBS, the world’s largest beef producer, seeking to hold it accountable for alleged misrepresentations and misleading marketing. The company has engaged in deceptive business practices and fraud through greenwashing claims about the environmental sustainability of its beef products and about its ability to meet its target of reducing greenhouse gas emissions across its supply chain to net zero by 2040, the State’s lawsuit argues.
Industrial agriculture, and especially beef production, is a significant contributor to greenhouse gas emissions that are driving climate breakdown. The world’s five biggest meat and dairy corporations together account for more annual GHG emissions than oil majors like ExxonMobil, Shell and BP do individually, and JBS’s emissions in 2021 were greater than that of Ireland. Yet despite its sizable climate impact, JBS highlights its net zero climate commitment and makes other environmental claims through advertisements and marketing that cater towards environmentally-conscious consumers. According to the New York Attorney General Office, such representations are deceptive and take advantage of consumers’ preference for sustainable products. “When companies falsely advertise their commitment to sustainability, they are misleading consumers and endangering our planet,” New York Attorney General Letitia James said in a statement. “JBS USA’s greenwashing exploits the pocketbooks of everyday Americans and the promise of a healthy planet for future generations. My office will always ensure that companies do not abuse the environment and the trust of hardworking consumers for profit.” The lawsuit was filed on February 28 in the New York County Supreme Court in New York City against JBS USA Food Company – JBS’s American subsidiary – and alleges violations of New York business law for false advertising and deceptive acts or practices and violations of state law pertaining to fraudulent conduct. New York seeks a court order for the company to cease its misleading marketing, and it also seeks civil penalties and disgorgement of profits. The state says that JBS continues to promote its “net zero by 2040” climate commitment even while it plans to expand beef production and even after the Better Business Bureau’s National Advertising Division determined that the company’s claims around this target were unsubstantiated and therefore create a misleading impression. According to the state’s complaint, JBS’s net zero target is “not feasible given the JBS Group’s current levels of livestock production and the company’s plans to grow global demand for its products.” The complaint points to a New York Times advertisement from April 2021 as an example of the company’s allegedly false representations. In that ad, JBS claims: “Agriculture can be part of the climate solution. Bacon, chicken wings and steak with net-zero emissions. It’s possible.” Climate scientists, however, explain in the Intergovernmental Panel on Climate Change’s latest scientific assessment that greenhouse gas emissions from animal agriculture, namely methane and nitrous oxide, cannot be mitigated effectively though existing or proposed technologies, and that production of and demand for meat, especially beef, must be curbed. Animal agriculture is responsible for more than 14 percent of total anthropogenic greenhouse gas emissions annually. JBS defended its environmental commitments in a comment responding to the new lawsuit. “JBS takes its commitment to a more sustainable future for agriculture very seriously,” Nikki Richardson, a company spokesperson, said in an emailed statement. “We disagree with the action taken today by the New York Attorney General’s office. JBS will continue to partner with farmers, ranchers and our food system partners around the world to help feed a growing population while using fewer resources and reducing agriculture’s environmental impact. Our belief that American agriculture can help sustainably feed the world is undeterred.” Environmental advocates and campaigners applauded the New York Attorney General Office for taking legal action against one of the world’s largest corporate greenhouse gas emitters. “JBS is one of the top global companies contributing to climate change and has proven time and again it can't be trusted to self-police,” Monique Mikhail, campaigns director in agriculture climate finance at Friends of the Earth U.S., said in a press release. “Corporations should and must be held responsible when they mislead the public about their harmful impacts.” “As the largest meat company in the world, with a significant climate footprint, JBS has a responsibility to be fully transparent about its emissions, reduction strategies, and outcomes,” said Ben Lilliston, director of climate strategies at the Institute for Agriculture and Trade Policy. “The New York Attorney General’s action today not only holds JBS accountable for its unsubstantiated net-zero claim, but also sends a strong signal to other companies that empty promises do not pass for climate action.” In November the New York attorney general filed a groundbreaking lawsuit against PepsiCo to hold the company accountable for its single-use plastic packaging that is polluting the environment, since most plastic cannot be recycled. The lawsuit claims PepsiCo failed to warn consumers about health and environmental risks associated with its plastic packaging and misleads consumers about its efforts to tackle the plastic problem. Like animal agriculture and beef production, plastic is a big contributor to greenhouse gas emissions that cause climate change. The city of Chicago filed a climate accountability lawsuit against half a dozen major oil and gas companies and their chief lobbyist group the American Petroleum Institute, charging them with deceptive conduct that resulted in escalating climate-related damages and costs incurred by the city and its residents. Chicago’s lawsuit is the latest from a US jurisdiction to target Big Oil for its alleged climate deception, and comes just five months after the state of California brought a similar climate lawsuit that was hailed as a “watershed moment” in the fight for climate accountability.
Chicago filed its complaint on Tuesday, February 20 in the Circuit Court of Cook County. The complaint alleges causes of action under state tort law, including public nuisance, negligence, and failure to warn as well as civil conspiracy and unjust enrichment and violations of local city laws concerning consumer fraud and misrepresentations relating to sales and advertising. In addition to API, the named defendants are BP, Chevron, ConocoPhillips, ExxonMobil, Phillips 66, and Shell. These companies and API knew more than 50 years ago that burning fossil fuels would have potentially catastrophic consequences for society, yet rather than publicly acknowledging this they doubled down on production and distorted the public’s understanding of climate change to protect profits, the case argues, supported by documented evidence. The petroleum industry funded front groups and campaigns to promote climate denial and block regulatory and policy responses to the looming environmental threat, which has now grown into a full-blown crisis wreaking havoc in communities across the United States and beyond. With its legal filing, Chicago joins more than three dozen jurisdictions in the US that have turned to the courts seeking to hold the oil and gas industry liable for climate change harms. “These companies knowingly deceived Chicago consumers in their endless pursuit of profits. As a result of their conduct, Chicago is enduring extreme heat and precipitation, flooding, sewage flows into Lake Michigan, damage to city infrastructure, and more. That all comes with enormous costs,” Alderman Matt Martin said in a press release. The lawsuit demands that Big Oil shoulder some of these costs. Specifically, the city seeks compensatory and loss-of-use damages, penalties and fines for statutory violations, and disgorgement of profits, as well as a court order that defendants cease their deceptive conduct. While oil and gas companies no longer outright deny that climate change is real, they have shifted their misleading messaging to claiming that their products, particularly fossil gas, are climate friendly and that their industry is leading climate solutions. Oil industry representatives and their allies slammed Chicago’s lawsuit and said courts should not be deciding climate policy. Ryan Meyers, general counsel of the American Petroleum Institute, called Chicago’s action part of an “ongoing, coordinated campaign to wage meritless, politicized lawsuits against a foundational American industry,” the Chicago Sun-Times reported. Phil Goldberg, special counsel for the Manufacturers’ Accountability Project – an industry-backed campaign that pushes back against lawsuits targeting corporate polluters – said in a statement that “this litigation is not the type of action that is going to lead to meaningful solutions,” adding, “courts are simply not the appropriate places to decide climate policy.” Chicago officials, however, say their lawsuit is not about climate policy, but about accountability. “There is no justice without accountability. From the unprecedented poor air quality that we experienced last summer to the basement floodings that our residents on the West Side experienced, the consequences of this crisis are severe, as are the costs of surviving them,” Chicago Mayor Brandon Johnson said in a press release. “Evidence shows that these Defendants intentionally misled Chicago residents about the climate change-related dangers associated with their oil and gas products,” said Corporation Counsel Mary Richardson-Lowry. “We bring this lawsuit to ensure that the Defendants who have profited from the deception campaign bear responsibility for their conduct.” Montana Defendants Claim Trial Judge "Had No Authority" to Rule on Historic Youth Climate Case2/15/2024 In August 2023, Montana District Court Judge Kathy Seeley issued what has been described as a “landmark” and “historic” win for the sixteen young people who sued their state government over a policy that bans regulators from even considering climate change in routine environmental impact assessments. Following a seven-day trial in June, Seeley determined that Montana had violated its state constitutional guarantee of the right to a clean and healthful environment through this policy that shielded fossil fuel projects from scrutiny over their climate impacts – the first time in U.S. history that a government has been held accountable under constitutional provisions for actions that contribute to the climate crisis.
Now, Montana is urging the state’s highest court to overturn that ruling by arguing that Seeley should never have been allowed to decide on the case in the first place. In their opening brief filed with the Montana Supreme Court on February 12, state defendants in Held et al. v. State of Montana claimed that the district court “had no authority to decide this case” because the youth plaintiffs lacked what is called standing, or the permission to be in court bringing a lawsuit. Specifically, the state argues that the policy at issue in the case did not cause climate change injuries to plaintiffs. It also argues that invalidating the policy would not redress any alleged harm, because scrapping it would not substantially alleviate the global climate crisis. In making these arguments, state defendants say that the ‘causation’ and ‘redressability’ requirements for plaintiffs to have standing have not been met. However, the state is not refuting the facts and evidence underlying Seeley’s decision or directly challenging her determination that the policy was unconstitutional. Instead, the state is claiming that it was not her place to even make that judgment. “It was very interesting that the State did not argue that Judge Seeley was wrong in finding that the state law barring consideration of climate change in making energy policy violated the environmental rights provisions of the state constitution. This amounts to an admission,” Michael Gerrard, founder and faculty director of the Sabin Center for Climate Change Law at Columbia Law School, said via email. While the Held lawsuit had a broader scope when it was filed in 2020, by the time it reached trial last year it had been narrowed in terms of challenged policies and requested relief. Seeley had denied plaintiffs’ request for ordering the government to develop a climate recovery plan to rapidly decarbonize in line with the best available science. The court could only declare government acts to be unconstitutional, not order a certain policy course change. By the time of trial, the sole policy or state law that she would be scrutinizing was a statute that prohibited assessment of climate impacts or greenhouse gas emissions under the Montana Environmental Policy Act (MEPA). It was essentially a weakening or restriction of MEPA, mandating that state agencies like the Montana Department of Environmental Quality turn a blind eye to climate pollution when doing environmental reviews as part of the permitting process. Seeley referred to it as the “MEPA limitation.” Echoing the arguments made at trial, state defendants asserted in their appellate brief that MEPA is strictly procedural and has no bearing on permitting decisions. The MEPA limitation therefore has no substantive authority or influence on regulators’ issuance of permits for environmentally harmful activities like a coal mine expansion, according to defendants. Seeley did not find such arguments convincing, and the state does not appear to be claiming that she was wrong in her finding that the MEPA limitation policy is unconstitutional. What the state is saying is that courts cannot tell the political branches what to do. Even if the MEPA policy is unconstitutional, agencies “are not are not required to analyze GHG emissions and climate impacts in MEPA reviews”, defendants argue. In other words, the state contends that while Seeley’s decision may invalidate the MEPA limitation, it is not a mandate that regulators must analyze GHG emissions in every environmental review. They could, and they are not prohibited from doing so, but they are not required to do this analysis – or so their argument goes. The Norwegian government is turning to the Court of Appeal seeking to reverse a landmark ruling that invalidated the State’s approvals of three new oil and gas fields in the North Sea on climate grounds. The verdict, delivered by the Oslo District Court on January 18, 2024, halted any further permitting or development of the offshore fields.
That court-imposed order, called an injunction, remains in effect regardless of the government’s attempt to challenge it, according to Frode Pleym, head of Greenpeace Nordic, which brought the climate lawsuit against the State along with Natur og Ungdom (Young Friends of the Earth Norway). The environmental groups successfully argued that the State’s approvals of the new oil fields, called Breidablikk, Yggdrasil, and Tyrving, did not adequately account for their expected contribution to global greenhouse gas emissions as required under Norwegian and EU law. The groups pointed to the Norwegian Supreme Court’s finding in a prior version of this litigation that Norway is obligated to consider the full climate impact of oil and gas projects prior to their approval. That includes the emissions generated when the oil is combusted, even if it happens outside Norway’s borders. In approving the North Sea fields, the government dismissed or downplayed the climate impact, the district court found. Such a deficient environmental assessment violates Article 112 of the Norwegian constitution and the EU Project Directive, according to the verdict. “This is the first win on oil for environmental organisations against the petrostate Norway,” Klimentina Radkova, climate and energy advisor and legal campaigner with Greenpeace Nordic, said via email. “It also creates precedent for other European countries, by way of the Project Directive.” The EU Project Directive mandates that EU member states take climate impacts into consideration in environmental impact assessments. Climate campaigners beyond Norway may seek to build upon the Greenpeace court win in Oslo as they challenge government-sanctioned fossil fuel expansion projects. While the UK is not subject to the EU Project Directive, climate lawyers there are hopeful they can convince courts that opening up new oil fields in the North Sea, like the Rosebank field, is absurd and unlawful in the midst of a climate emergency driven largely by fossil fuels. The UK also disregards combustion emissions in allowing these new projects to move forward. As Tessa Khan, a lawyer and executive director of the climate organization Uplift, writes in The Guardian: “The judgment in Norway has set an example that provides fertile ground for the government’s position to be challenged in UK courts.” It will now be up to the Court of Appeal in Norway to decide whether or not to uphold this judgment. “We can confirm that we are appealing the verdict,” Stine Grimsrud, spokesperson for the Norwegian Ministry of Energy, said via email. In a press release commenting on its decision to appeal, the Ministry said it disagrees with the district court’s finding of “procedural errors” in the fields’ approvals. According to the Ministry, it has complied with the Supreme Court’s ruling around consideration of a petroleum project’s full climate impact, claiming, “we now also assess combustion emissions when processing each individual development plan.” The Ministry says that going forward, it will be making adjustments in its assessment process for combustion emissions in order to be more inclusive. Norway’s Ministry of Energy also defended its continued support for oil and gas extraction. “The judgment from the Oslo district court is about the case management process related to new development projects, not whether we should have oil and gas production on the Norwegian continental shelf or not. We shall still have that. The government will further develop, not liquidate, the petroleum sector,” Energy Minister Terje Aasland said in the press release. Leaders with Greenpeace Nordic and Natur og Ungdom say they are confident that their case will survive a challenge on appeal. “We have a very strong case and are ready to fight for this on behalf of future and current generations,” Pleym said. “We are disappointed that the State does not want to acknowledge their legally bound duty to assess the climate impacts of Norwegian oil and gas, but we are convinced that the Court of Appeal will uphold the verdict from Oslo District Court, Gytis Blaževičius, head of Natur og Ungdom, added. For now, the district court’s ruling remains in effect and demonstrates that courts can play a critical role in holding governments accountable in the context of the climate emergency. “It is another case in a long line of climate litigation which has been successful in holding authorities accountable,” Radkova said, “and it shows that no one is above the law and we as citizens have mechanisms in place which safeguard our rights.” *Updated February 1, 2024 with comments from Norway's Ministry of Energy The Dutch NGO that successfully sued Shell announces new climate case against fossil fuel financier ING, while the island of Bonaire files climate lawsuit against the Dutch state The Netherlands has been a hotspot for climate litigation. In 2015 the Urgenda Foundation along with Dutch citizens won a historic verdict against the Dutch government, marking the first time in the world that a court ordered a government to take more stringent climate mitigation action. The Dutch Supreme Court upheld this ruling in 2019, setting a powerful example indicating that governments have a legal duty to respond more urgently and effectively to the climate crisis in line with their human rights obligations. In 2021 a Dutch court delivered a groundbreaking decision in a climate lawsuit against oil major Shell, implying that this legal duty extends also to (multinational) corporations. Next month a court is expected to issue a decision in a climate case alleging greenwashing by Dutch airline KLM. And so far this month, Dutch citizens and climate campaigners have launched two new legal challenges – one against the government, and one against the country’s largest bank. On January 19, Friends of the Earth Netherlands (Milieudefensie) announced the initiation of legal action against the Dutch bank ING. In a “notice of liability” letter to ING’s board chair, the first step of litigation, Milieudefensie says the bank has breached its legal duty of care by failing to align its business with the objectives of the Paris Agreement, including by continuing to finance polluting companies that are driving dangerous levels of warming inconsistent with global climate action goals. “ING continues to exacerbate the climate crisis,” Donald Pols, director of Milieudefensie, said at a press conference announcing the group’s plan to take the bank to court. He noted that ING “still partners with and funds companies that start new fossil fuel projects” and that ING has said it would stop funding new oil and gas projects only by 2040 – 15 years too late. According to the letter, ING has self-reported that its financed GHG emissions are 61 megatonnes of CO2-equivalent (in 2022), which is greater than the annual emissions of entire countries like Sweden or Cambodia. And in the years since the Paris Agreement entered into effect, ING has issued more than 83 billion Euros in bonds to the fossil fuel industry. Given this financing going into climate destabilizing companies and activities, Pols says that ING “is the banker of the climate crisis.” His organization is demanding that the bank stop engaging with big polluters if they fail to demonstrate they have credible climate transition plans. Milieudefensie also demands that ING halve its own emissions by 2030 (at least 48% reduction in CO2 and 43% reduction in CO2-e) and ensure its climate plan is fully aligned with the Paris Agreement goal of limiting warming to no more than 1.5 degrees C. In an online statement responding to the announcement from Milieudefensie, ING defended its climate position, saying its financing of non-sustainable activities like fossil fuel projects is merely “a reflection of the current global economy.” “We're confident that we take impactful action to fight climate change,” Arnaud Cohen Stuart, head of Business Ethics for ING, said in the statement. “We will of course respond in court if necessary.” Milieudefensie has requested a response to its letter within eight weeks, and if the bank does not agree with the NGO’s demands, then the group will file a lawsuit in court. Milieudefensie Jong, the organization’s youth division, is also a claimant in the matter. “I hope that just like in the Shell case, the scales of Lady Justice will be in favor of life, and not money,” Winnie Oussoren, chairman of Milieudefensie Jong, said during the press conference. Milieudefensie is the Dutch NGO that took Shell to court over climate change – and won. The District Court of the Hague ruled in 2021 that Shell must reduce its entire supply chain emissions (Scopes 1, 2, and 3) by at least 45 percent by 2030. Shell has appealed the verdict, and the appellate court is scheduled to hear the case this April. Meanwhile, eight Dutch citizens from the Caribbean island of Bonaire along with Greenpeace Netherlands officially sued the Dutch state last week over climate. Bonaire, a low-lying island located about 80 kilometers off the coast of Venezuela, is a former Dutch colony that is now a special municipality of the Netherlands. The island is vulnerable to rising sea levels and is already experiencing severe flooding, extreme heat, and degradation of coral reefs, among other consequences of anthropogenic warming.
The Netherlands has not done enough to protect residents of Bonaire from these worsening climate impacts, the claimants say. By taking the Dutch government to court, they aim to compel the state to develop a concrete plan to help the island adapt and survive, and to ensure the Netherlands takes even more aggressive climate mitigation action than it has already committed to. The lawsuit requests the court to order the government to do its “fair share” to try to limit warming to no more than 1.5 degrees C, which entails zeroing out emissions by 2040 at the latest, 10 years earlier than currently planned. In the government failing to take these actions, the case alleges the government is violating its legal obligations under human rights law. “It is the duty of the Dutch government to protect us all from the consequences of the climate crisis,” Andy Palmen, director of Greenpeace Netherlands, said in a press release. “Bonaire is being hit hard by rising sea levels, heat and the disappearance of coral. The government has a duty to limit global warming as much as possible and is now failing to do so.” According to a Greenpeace-commissioned study by the Vrije Universiteit Amsterdam (VU), a fifth of the island could be permanently submerged before the end of the century. Greenpeace Netherlands initiated legal proceedings last year in May by sending a letter to the Dutch prime minister laying out the demands to protect Bonaire from further climate injustice. On January 11, Greenpeace delivered the court summons at the District Court of The Hague. Norwegian Court Overturns Norway's Approvals of New Offshore Oil Fields on Climate Grounds1/18/2024 A court in Norway has delivered a key victory for climate campaigners in the fight against fossil fuel expansion, determining that the Norwegian government’s approvals of three new offshore oil and gas fields violated Norwegian and European law.
The Oslo District Court’s verdict, issued January 18, 2024, is the culmination of a legal challenge launched last year by Greenpeace Nordic and Natur og Ungdom (Young Friends of the Earth Norway) that sought to invalidate the state’s approvals of the Breidablikk, Yggdrasil and Tyrving fields in the North Sea. The environmental groups argued the government’s decision did not adequately account for the fields’ expected contribution to the climate crisis, and were illegal under the Norwegian Constitution, EU law and the UN Convention on the Rights of the Child. Ultimately, the court agreed that the fields’ approvals were unlawful. The court’s verdict renders them invalid and prohibits the government from issuing any new permits to construct and operate the fields. Production from one of the fields, Breidablikk, had already started. “The judgement establishes that the Breidablikk, Yggdrasil and Tyrving oil and gas fields were approved on an illegal basis and that production must be stopped immediately. We expect a halt to all further developments,” Frode Pleym, head of Greenpeace Norway, said in a statement. The legal challenge built upon a prior lawsuit brought by the same organizations against the government over its granting of new offshore oil licenses. While the Norwegian courts did not rule in the environmental groups’ favor, the Norwegian Supreme Court did determine that the government is obligated to consider the full climate impacts of new oil projects before granting approvals. That determination formed the basis of the new lawsuit, which claimed these climate assessments were either not done or were highly insufficient. The Oslo District Court found that the government failed to consider the combustion emissions that would stem from new oil production even if those emissions occur outside of Norway. These emissions, the court said, are “such a significant and particularly characteristic consequence of such projects”, and they must be taken into account in order to comply with EU law and with Article 112 of the Norwegian constitution. Additionally, the court pointed to procedural deficiencies with the approvals of the new oil fields, including a lack of opportunity for public participation. Along with revoking the state’s approvals of the three North Sea fields, the court ordered the state to pay damages and court fees amounting to NOK 3,260,000. The verdict comes following a trial held in late November and early December 2023, at the same time that the COP28 UN climate conference was taking place in the United Arab Emirates. “If we win, it would provide a lot of transparency about the real consequences of new oil and gas fields in Norway,” Klimentina Radkova, climate and energy adviser and legal campaigner at Greenpeace Nordic, said during a COP28 press conference hosted by Greenpeace International, appearing via video from the court in Oslo. Nikki Reisch, climate and energy program director at the Center for International Environmental Law, noted during that press conference that new oil and gas development is inconsistent with global climate goals. “If we are to avoid foreseeable climate catastrophe there is simply no room to open up new oil and gas fields,” she said. “This case in Norway is a reminder that no matter what happens in these halls at COP, governments have existing legal duties outside and will be held accountable to them in court.” Gytis Blaževičius, head of Natur og Ungdom, called the ruling from the Oslo District Court an “important victory for current and future generations and the environment.” “During the trial, the State tried to diminish the impact of the emissions Breidablikk, Tyrving and Yggdrasil would have globally,” Blaževičius said. “As confirmed by the court’s decision, emissions from the oil fields would have catastrophic effects on the global climate, on people and the planet. We are pleased the oil and gas will remain untouched in the ground.” The youth climate activists from Ontario, Canada challenging their provincial government’s scaled back climate policy through the courts continue their battle for accountability as their case came before the appellate court this week in a critical hearing. On January 15, the Ontario Court of Appeal heard oral arguments in the youth climate case Mathur et al. His Majesty in Right of Ontario, which contends that the Ontario government’s relaxed 2030 greenhouse gas emissions reduction target exacerbates grave climate harms in violation of the fundamental rights of youth and future generations under the Canadian Charter of Rights and Freedoms. The lawsuit, brought in 2019 by seven young people from across the province, advanced to a hearing on the merits in September 2022 – the first rights-based climate case in Canada to reach this stage. Despite affirming many of the youth applicants’ points, the Superior Court ruled in April 2023 to dismiss the case, a decision currently being challenged on appeal. “Our fight against Ontario’s inadequate climate targets is undeterred,” 16-year-old applicant Sophia Mathur of Sudbury, Ontario said in a statement. “Heading to the Court of Appeal, we stand resolute, unwavering in our commitment to protect the rights of all and secure a sustainable future for generations to come.” “Backtracking is Unacceptable” The litigation arose in response to action taken by the province’s conservative government, under the leadership of Premier Doug Ford, in 2018 to repeal Ontario’s 2016 climate law that established a cap-and-trade program and set GHG emissions reduction targets. Rather than upholding or strengthening the 2030 target of 37% reduction (below 1990 levels), the government’s new plan rolled back the target, setting it at 30% reduction (below 2005 levels). According to Danielle Gallant, a lawyer with the nonprofit organization Ecojustice that is supporting the youth applicants in the case, this move was completely inconsistent with climate science and warranted a rights-based legal challenge. “We say in doing so they violate youth and future generations’ rights to life, to security of the person and to equality protected under the Canadian Charter of Rights and Freedoms,” Gallant explained in a phone interview. “Ontario has done what not many governments have done in the world and that is to take a step backwards on climate action, when the world’s scientists tell us we have to do more rather than less,” she said. “I think this element of backtracking is unacceptable.” “In this day and age given the extent of the crisis and what we know will happen,” Gallant added, “there’s no excuse for governments to set targets that are so out of line with science.” While the Superior Court agreed that the weakened target lacked scientific basis and that inadequate climate action poses an increased risk of harm to young people, it determined that the scaled back policy was not ‘arbitrary’ and did not amount to Charter violations. The youth applicants’ legal team argued at the Court of Appeal that this finding was erroneous, given the court’s acknowledgement that the target fell severely short of the scientific consensus on climate mitigation. Gallant said the team also argued that the government was affirmatively endangering young people. “This is not a case about mere inaction…the government is actively stepping in and increasing the risk of harm and death to Ontarians.” Nearly a dozen intervenor groups representing constituencies such as parents and grandparents, Indigenous communities, and doctors and physicians appeared in court to speak in support of the young Ontarians’ case, Gallant said. The youth applicants were there as well, and it was the first time they were able to physically be in court since previous hearings were held remotely.
A decision could come within the year, and the case is likely to then go to Canada’s Supreme Court regardless of the outcome as a final appeal is expected. If the lawsuit is ultimately successful, the courts could order Ontario to set a new 2030 target that is grounded in the science. That is one remedy the applicants seek. They also want the courts to declare that the province’s current policy violates their Charter rights. Outside of Canada, rights-based climate lawsuits against governments have seen some successful outcomes, mostly in Europe. In the US a state court judge delivered a groundbreaking victory last summer to young people in Montana who sued their state government over a fossil fuel-friendly policy that contravened climate science. The state is currently appealing that decision, which remains in effect with the Montana Supreme Court this week denying the state’s request to stay (or pause) the ruling while the appeal is underway. Gallant said that Montana’s historic verdict “was a source of hope, because the US is such a larger emitter. So to see a jurisdiction within the US finally be held accountable means a lot to the rest of the world.” Like the Montana case, the litigation in Ontario is part of a broader trend of youth turning to the courts amidst the worsening climate emergency, and the stakes are incredibly high. “It’s their generation that stands to bear the brunt of climate change,” Gallant said. “For them this issue is existential. They’re fighting for their right to a livable future.” The state of Delaware’s lawsuit seeking to hold fossil fuel companies liable for alleged climate deception and climate-related costs is one step closer to trial after a state court judge refused to completely dismiss defendants’ bids to toss out the case.
Superior Court Judge Mary M. Johnston issued an opinion on January 9 striking out several elements of the state’s complaint but upholding other allegations, including a claim that the companies failed to warn about the climate consequences associated with their products. "We're grateful that the Court denied several Big Oil defendants' efforts to evade accountability," Mat Marshall, a spokesperson for the Delaware Attorney General Office, said in an emailed statement. "We're reviewing Judge Johnston's opinion and analyzing next steps, and are undeterred in our pursuit of justice for Delawareans enduring the cost of climate change." Delaware’s lawsuit, filed in September 2020, targets more than two dozen oil and gas companies and their chief lobby group the American Petroleum Institute, accusing them of decades of deceitful conduct intended to maximize fossil fuel sales and profits while publicly denying or downplaying the climate risks. This has led to increased fossil fuel combustion and subsequent climate breakdown with severe and costly impacts to the state such as coastal flooding and erosion and extreme heat, the complaint asserts. Delaware also alleges the defendants continue to mislead the public through greenwashing and false advertising. The lawsuit includes claims of negligent failure to warn, nuisance, trespass, and violation of the Delaware Consumer Fraud Act. After unsuccessfully trying to force the case into federal court, where they envisioned an easier path to dismissal, the industry defendants lodged a multitude of grounds for dismissing the lawsuit. The court heard these arguments in late September 2023, and its decision reflects some concessions granted to defendants. The consumer fraud claims and general allegations of greenwashing were tossed out. Judge Johnston’s opinion found that the Delaware Consumer Fraud Act claims are barred by the five-year statute of limitations, and that the state’s alleged misrepresentations lacked specificity, though the state could amend its complaint to address that with more particularity. Her opinion also partially sided with defendants on the question of whether the federal Clean Air Act preempts the state’s claims pertaining to global greenhouse gas emissions. Interstate emissions are subject to the CAA and preemption would apply, though not for “damages resulting from air pollution originating from sources in Delaware.” The court declined to dismiss the state’s claims of nuisance and trespass, though it did narrow the scope of those claims to pertain only to state-owned land. The court also refused to dismiss Delaware’s failure to warn claim. A move by six of the defendants – BP, Chevron, Exxon, Shell, TotalEnergies, and American Petroleum Institute – to assert lack of specific jurisdiction, claiming they lacked any relevant contact with the state of Delaware, was further rejected by the court. The court did find, however, that TotalEnergies should be dismissed or released from the case due to “failure to be served with process.” Additional motions to dismiss under Anti-SLAPP laws, as requested by API and Chevron, were also denied. The court’s ruling overall does limit the scope of Delaware’s case, but allows it to advance nonetheless towards the discovery and trial stages. The ruling comes one day after another climate accountability case brought against Big Oil by the state of Minnesota got a boost from the US Supreme Court’s denial of defendants’ petition to intervene, allowing it to proceed in state court. Several other climate cases, including ones filed by Massachusetts and by the city and county of Honolulu, are now in the pre-trial discovery phase. Updated January 12, 2024 with a statement from the Delaware Attorney General Office |
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