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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 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]