Seven months after his landmark victory against Royal Dutch Shell, Roger Cox has never been busier.
Little known outside his native Netherlands, Cox is probably the world’s most successful climate litigator. His win against Shell in May, when a judge in The Hague ordered the Anglo-Dutch energy supermajor to cut its carbon emissions by 45 per cent by 2030, rippled around the world.
He is now preparing to respond to Shell’s appeal next year, petitioning the Belgian government to comply with another of his court victories and consulting on half a dozen climate cases in other countries.
After the success of the Shell case he expects copycat legal action against other oil majors, companies in other sectors and eventually individual directors.
“I expect an avalanche of cases against the fossil fuel industry and related industries like the car industry,” he told the Financial Times from his home in Maastricht.
“One of the big reasons for the judiciary to exist is to bring balance in society and to protect us from human rights violations from our governments and other large entities that dictate our world and our wellbeing,” he said. “It is just a matter of time [before] the same kind of approaches will also be successful in other countries.”
Cox, 53, studied law at Leiden University and later worked for a law firm in the port city of Rotterdam before writing the book that has served as the blueprint for his climate cases. Revolution Justified: Why Only the Law Can Save Us Now, published in 2011, argues that the courts are the world’s best hope of averting further catastrophic climate damage.
It has been reviewed only once on Amazon’s Kindle Store, albeit with five stars. But the argument Cox makes has had an impact on a much bigger audience via the courtroom.
His first climate victory following the publication of the book was against the Dutch government in 2015 on behalf of environmental non-profit group Urgenda. In the first ruling of its kind, the court in the Netherlands ordered the state to cut carbon dioxide emissions by 25 per cent from 1990 levels before 2021.
Cox’s case hinged on the argument that ever since the 1992 UN Framework Convention on Climate Change, its 165 signatory states had been legally compelled to keep greenhouse gases in the atmosphere at a level that would prevent “dangerous anthropogenic interference with the climate system”.
“The question then is how does this universally defined danger line transfer to national law and what does it mean for duty of care,” Cox explained.
At the 2015 COP21 climate summit in Paris, that “danger line” became more concrete, with 195 nations agreeing to “pursue efforts” to limit any temperature increase to 1.5C above pre-industrial levels.
Cox has since used the Paris climate agreement and the Urgenda victory in his case against Shell and in a successful case in Belgium, where a court ruled in June that the Belgian government had breached the human rights of 58,000 individual claimants by not taking adequate climate action.
Using the courts in this way is necessary when government is unwilling to act, Cox argues.
“In a constitutional democracy, we not only have our political powers — the legislative and executive branch — but we also have a balancing power, which is the judiciary,” he said.
Through his work, Cox has become ever more concerned about lasting damage to the planet if the Paris targets are not met.
“The consequences for life and for wellbeing, and for your right to water and food, will all be violated for eternity if we do not address this,” he said. “We’re talking about the most widespread human rights violations ever. Obviously courts do feel a very strong urge to intervene once they understand what the problem is, how urgent the problem is and what is at stake.”
Central to the case against Shell was the assertion that companies have a responsibility to protect human rights even if the state is doing little or nothing to help. Shell has said it will cut emissions from its own operations by more than the court has ordered, but argues it cannot be held responsible for the carbon emitted by its products, particularly while governments are doing little to regulate consumer demand.
Cox said he accepted “from a legal point of view” why Shell would choose to appeal against the ruling, although he wished it would not. “They could certainly create a lot of leverage by embracing a court case like this and put much more pressure on the market and on institutional investors by doing so,” he added.
A similar lawsuit opened against TotalEnergies in January 2020 in France. Last month in Germany, Greenpeace sued Volkswagen to end the production of combustion-engine cars and cut total emissions by 2030. Another group of German activists opened a comparable case against BMW and Daimler in September.
Cox expects banks and financial regulators, such as the European Central Bank, to be targeted next. “Financing these large CO2 emissions is not something that can be accepted any more,” he said, adding that his team was also investigating the question of directors’ liability and considering cases against individual company board members.
“We have to keep the pressure on, as much as we can, to make sure that everyone understands that there is a legal duty to act and that concrete action is taken to make sure these targets are met.”
Cox estimates that there are already 30 “Urgenda-type” cases ongoing against governments, including in Ireland, Australia and Germany.
In the Netherlands the results have been mixed. The Dutch government introduced a series of carbon-cutting measures in April 2020, five years after the Urgenda ruling and only after the Supreme Court had rejected its last appeal. The court case, nevertheless, shifted the national debate from whether to do something to cut emissions to how to do it, Cox said — “it changed the discussion”.
The COP26 climate conference in Glasgow in November similarly focused minds but delivered less than hoped, despite agreements on emissions reporting and rules for global carbon markets.
These were “baby steps compared to what is needed”, Cox said. “I don’t think that any climate litigator in the world is looking at these COPs and expecting an outcome that will make us stop doing what we are doing.”
Copyright The Financial Times Limited 2021
