Background of the Shell litigation

In the first climate change litigation, which commenced in 2019, Milieudefensie successfully obtained a first-instance judgment on 26 May 2021 ordering Shell to reduce its Scope 1, 2 and 3 greenhouse gas (GHG) emissions in the period until 2030 (please be referred to our earlier article on this). That judgment was partially overturned on appeal. While the Court of Appeal of The Hague acknowledged the seriousness of climate change and Shell’s responsibility to contribute to mitigation efforts, the court ultimately rejected the requested emission reduction order, in particular with regard to Shell’s Scope 3 emissions (please be referred to our earlier case analysis on this). Central to the court of appeal’s reasoning was the effectiveness argument. This concerned the risk that emissions reductions by an individual company (i.e. Shell) would not necessarily result in a corresponding reduction in global GHG emissions, due to substitution by other market actors.

The Supreme Court proceedings now pending against Shell concern to what extent specific civil-law climate obligations can be imposed on an individual company (i.e. specific reduction obligations of Scope 1,2, and 3 GHG emissions) and how effectiveness and causality should be assessed in that context.

In this context, it is interesting that Milieudefensie has once again initiated a new climate change litigation. At first glance, this might appear repetitive. On closer inspection, however, the new Shell climate case can be read as a moment of reflection: an attempt to come to terms with the limits identified in the first Shell climate case and to reformulate the Court of Appeal’s reasoning into a more concrete and legally operational approach.

The new proceedings initiated by Milieudefensie

Similar to the first Shell climate case, the new Shell climate change litigation includes claims aimed at reducing Shell’s Scope 1, 2 and 3 GHG emissions in line with the 1.5°C temperature goal. In that sense, there is clear continuity: Milieudefensie maintains that Shell’s current corporate climate policy remains insufficient and incompatible with internationally accepted climate pathways.

The writ of summons issued by Milieudefensie sets out in more detail the manner in which GHG emission reductions are to be actually realised in practice:

  • First, Milieudefensie emphasises that Scope 1, 2 and 3 GHG emission reductions must be real and effective. Milieudefensie seeks to prevent Shell from complying through formally acceptable but substantively ineffective measures (such as carbon credits or divestment strategies that externalise GHG emissions by selling emission-intensive assets or activities to competitors, without reducing overall GHG emissions). The claims therefore exclude the use of carbon credits and restrict divestment strategies that merely shift emissions outside the Shell group. Reductions must be absolute, not the result of offsetting, accounting techniques or asset transfers that leave global emissions unchanged. This approach directly responds to the effectiveness concerns articulated by the Court of Appeal in the first climate case against Shell, by structuring the relief sought in a way that is intended to result in tangible reductions in Scope 1, 2 and 3 GHG emissions.
 
  • Second, the new proceedings target Shell’s upstream investment strategy. Milieudefensie seeks court orders preventing Shell from investing in-, producing from, trading in or transferring rights relating to new oil and gas fields for which a final investment decision was taken after a specified cut-off date. Rather than focusing on existing GHG emissions, this pillar is aimed at preventing future emissions from being ‘locked in’ through long-term fossil fuel investments. By targeting upstream investment decisions – where Shell exercises decisive control and where long-term production capacity is created – this claim gives operative effect to the Court of Appeal’s recognition in the first climate change litigation against Shell that such upstream investments may undermine the energy transition and may, under certain circumstances, be incompatible with Shell’s duty of care.

It seems that Milieudefensie has sharpened its litigation strategy in response to its first climate case against Shell, in which the Court of Appeal issued doubts about the effectiveness that undermined the sufficient interest required for far-reaching GHG emission reduction orders. In the new Shell climate case, Milieudefensie addresses this concern by targeting concrete corporate conduct – upstream investment decisions and concrete and effective GHG emission reduction pathways – where Shell exercises decisive control and where preventive measures can meaningfully contribute to avoiding climate change.

More implicitly, the new climate case seems to mirror Milieudefensie’s concerns about the way the Court of Appeal in the first climate case translated climate science into legal standards, prompting a shift towards claims that rely less on contested reduction percentages and more on concrete, preventive corporate conduct.

In this context, the new climate change litigation against Shell should not be viewed in isolation. This reflects a broader trend in ESG and climate change litigation, in which claimants increasingly seek to move beyond abstract, outcome‑based obligations and instead aim to compel specific, concrete, and preventive forms of corporate conduct by individual companies (please be referred to our earlier trend report on this).

What is next?

Procedurally, the next step in the new Shell proceedings will be a statement of defence by Shell later this year but this obviously depends on the development of the case. Meanwhile, the already pending climate change litigation against Shell before the Dutch Supreme Court will continue, with an upcoming hearing on May 22, 2026.

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As ESG legislation and litigation continue to evolve rapidly, our firm is closely monitoring these developments and the potential liability risks for companies. For further information please feel free to contact one of our colleagues below.