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This is part 2 of an rigorous analysis of the judgment of the Hague District Court in Milieudefensie v. Shell. Part 1 was published in the previous issue of European Energy and Environmental Law Review. [ABSTRACT FROM AUTHOR]

To protect the inhabitants of The Netherlands against 'dangerous climate change', the Hague District Court (the 'Court') in the 'climate case of the century' (Milieudefensie v. Shell, 2021) resorted to paradoxical lex ferenda interpretations of Dutch tort law. The court found binding 'unwritten' corporate norms in documentation without any legal status, while it acknowledged that the corresponding multitude of demanding 'written' (i.e., statutory) norms are nonbinding, do not apply to private entities, and do not reflect custom. In dictating corporate climate policymaking, the court rewrote Dutch tort law, ignored its limits, and expanded it in ways that are not consistent with the Dutch Supreme Court's rulings. Based on the proposition that CO2 emissions cause 'dangerous' climate change, which is not a term used by the Intergovernmental Panel on Climate Change (IPCC), the judgment is a lengthy, but in the end circular argument: there is a duty of care because emissions cause danger, and emissions cause danger because there is a duty of care. Milieudefensie's case was built chiefly on a Dutch tort law case known as the 'Cellar Hatch' case. In the Cellar Hatch case, the Dutch Supreme Court first articulated the endangerment doctrine that resembles Learned Hand's negligence calculus. In Milieudefensie v. Shell, the Hague District Court applied the endangerment doctrine, but constructed a climatespecific version. To enforce the urgent CO2 emission reductions deemed scientifically necessary, the Court circumvented the logical consequences of the applying the Cellar Hatch's endangerment doctrine by referring to human rights, consensus and the concept of 'partial responsibility'. The judgment does not fit into the system of Dutch civil law, and reasons away all barriers to imposition of the remedy sought by Milieudefensie, including causation requirements. With the Court's moral reconstruction of the endangerment doctrine to 'save the planet', the Court opened the hatch, and fell into the dark cellar, along with the entire body of Dutch tort law, democracy, the rule of law, the rights and interests of citizens and the economy. In short, based on court-made 'unwritten' law, the Court concocted a result-oriented mix of science, law and expanded 'soft laws' to find an unlawful act without duly considering its plausible lawfulness and justification, entertained a vague, multi-faceted concept of climate-related damage without carefully examining its coherence, and constructed a causal link between the act and the damage based on the act's presumed unlawfulness. Ironically, given the way markets work, the court's judgment may well increase CO2 emissions, and thus not have any favourable effect on the climate, but it will restrict citizen's rights to participate in public affairs and impose a potentially large burden on the economy. Endorsing perceived consensus around a moral imperative to reduce emissions, the Court did not confirm, but merely assumed the effectiveness of the remedy and ignored its multiple adverse consequences. The reality is that to comply with the court order, in 2030, Shell could simply spin off its fossil fuel business. Regrettably, the court disposed of virtually the complete body of Dutch law to secure a pyrrhic victory for the climate movement that is likely to harm the environment. This article is published in two parts. This is part 1. Part 2 will be published in the next issue of European Energy and Environmental Law Review. [ABSTRACT FROM AUTHOR]

The Supreme Court's ruling in the Urgenda climate case requires that the Netherlands government step up the fight against climate change to reduce CO2 emissions by the end of 2020 by 25% (relative to 1990). Urgent action against 'dangerous climate change' was deemed scientifically necessary to safeguard the right to life of Netherlands residents. Upon close analysis, however, this revolutionary judgment appears to be based on uncritical examination of the factual evidence presented by Urgenda, judicial misappropriation of legislative power, expansive interpretations of the applicable law, careless or incomplete reasoning, and intentional omissions. Due to these deficiencies, the court's ruling will have serious consequences for future policy-making in The Netherlands and the liability exposure of companies in relation to climate change. This article analyses the judgment and discusses its implications. [ABSTRACT FROM AUTHOR]

The latest move in the environmentalists' fight against climate change involves judicial proceedings against states. In these proceedings, climate action groups seek court orders to force governments to impose more stringent measures to reduce greenhouse gas emissions. A recent judgment by a Dutch court has given this strategy momentum. In the Urgenda case, the court ruled that the Dutch government owes a duty of care to its citizens to provide protection against the risks posed by climate change. On this basis, the court ordered the government to revise its current policies to ensure that by 2020 carbon dioxide emissions are reduced by at least 25% compared to 1990 levels. As this article demonstrates, this kind of litigation raises constitutional issues, because courts may not infringe on the legislature's prerogatives. Climate policy-making requires a series of value judgments and policy choices, and the state has non-justiciable discretion as to how it meets its duties of care. [ABSTRACT FROM AUTHOR]

There is little novelty to be found in the Paris Agreement. Nevertheless, it may have serious implications for climate policymaking. It establishes an international framework for decentralized climate policy-making by states, which should aim to achieve an ambitious collective objective of limiting global average temperature increase to well below 2°C or even 1.5°C. The agreement does not set any mechanism, methodology or criteria, however, for assigning individual mitigation obligations to party states. It does not impose any signficant substantive obligations on the parties, and, from a legal, as opposed to political or moral, viewpoint, it seems to be virtually non-binding. This gap is destined to become the Paris Agreement's Trojan horse, because, under the guise of direct democracy in a system of multi-level, non-hierarchical governance, it grants not only credibility but also defacto authority to climate activists, thus posing a threat to constitutional government and representative democracy. The Paris Agreement demands that nation states acknowledge explicitly that their efforts are inadequate, while setting them up forfailure, thus changing the political environment in which climate policy is made. The ambition-obligation disparity creates a large arena for climate activism at international and national levels, effectuating a transfer of power, or at least of infuence, that is inconsistent with the fundamental principles of constitutional government. If the collective efforts appear to fall short of achieving the Paris Agreement's objectives, the judiciary is likely to be dragged into climate policy-making. Climate action groups or executive governments supporting ambitious action will charge the body politic with impotence, declare"government failure," and seek the help of the courts to get governments to "do the right thing. "To support their claims, they can invoke the admissions, objectives, and aspirations set out in the Paris Agreement. Thus, in demanding that the signatories concede that their efforts are inadequate, the Paris Agreement paves the way for the new international climate governance movement. Its implicit reliance on political activism by the climate movement and the related non-hierarchical governance by courts constitute a threat to constitutional government, the rule of law, and representative democracy. It risks an unconstitutional usurpation of power by activist groups and unelected and unaccountable judges that could undermine legislative power and the role of positive law in deciding legal disputes. This risk of subversion is not well understood by politicians and governments. Nations should protect themselves against these threats. After all, signing away control over climate policy to unaccountable and unelected actors is not in the public interest. Nor is it, under even the most optimistic of circumstances, a viable path to rational, effective and sustainable climate policies. Indeed, the future of representative democracy may be at stake. [ABSTRACT FROM AUTHOR]