Effectiveness should not be a criterion in climate lawsuits

Companies are sued over inadequate climate plans more and more often. According to critics, these kind of cases miss the mark quite often; they think judges should use an effectiveness requirement. According to Elbert de Jong, that is not a good idea. From Shell to Mercedes-Benz, and from Total to the German energy company RWE AG. Around the world, there are many ongoing lawsuits against companies in which they are held accountable for their contributions to climate change.

After Milieudefensie won the lawsuit against Shell, the organisation sent a letter to thirty big Dutch companies. It was an invitation to commit to the reduction mandates too, and at the same time a threat of lawsuits against companies Milieudefensie saw as unwilling.

You would think: the use of lawsuits and threatening with them is NOT a bad development for the sake of the climate, a good way to encourage companies to social change. The IPCC supports that. One of its recent reports states that lawsuits can make a contribution to counteracting climate change.

But there are opposing viewpoints as well. Both the Urgenda and Shell rulings received criticism that they are ineffective. More than that: they are sometimes even counter-productive when it comes to achieving the climate goals the cases were started over. For instance, researcher Benoit Mayer states that both cases led to a (slight) increase in worldwide greenhouse-gases exhausts.

A substitution effect is also pointed out: if Shell provides less gas and oil, consumers are possibly forced to choose for another party that takes the climate (even) less seriously. Various authors therefore state that judges must take the effectiveness or ineffectiveness of (intended) rulings into account.

Counter-productive

At first glance, there seem to be few opposing arguments to this. Nobody is waiting for climate procedures that do not really help and can even be bad for the climate. But it is more complicated. Because when is a ruling effective, and how do you assess whether or not a ruling has unintended (counter-productive) effects?

I see multiple problems if the judge takes the effectiveness of his ruling into account while drafting his ruling. I will explain some of them. First of all, it is right that a judge should look at ALL possible (direct and indirect) effects a procedure can have. That is not that easy, maybe currently impossible. It requires sufficient knowledge and certainty on the (potential) consequences of a ruling. But how does the judge obtain those?

The requirement that a climate ruling has to be effective is not wise

Simply too little research has been done into the effects and impacts of climate procedures in order to get a complete image of their effectiveness. That makes it more difficult to assess what the effects of a ruling will be. It is already tricky to predict what the future effects of a yet to be made ruling will be. There is a risk that the judge will assess the effects of his ruling based on incomplete or even speculative evidence, or that the procedure results in time-consuming discussions about possible consequences of a ruling. Whether or not those discussions will result in a correct image remains the question.

Another problem is that it is not easy to assess the relationship between a specific ruling AND certain effects. The lack of effectiveness or even the counter-productivity of a ruling can also result from the policy choices in response to a ruling, for instance because the accountable company or the responsible government does not act in the spirit of the ruling.

Nobody is waiting for climate procedures that do not really help

For instance, the Dutch government has taken various measures in order to implement the Urgenda norm. But in hindsight, these turn out to be insufficient in order to make the norm. They only worked thanks to the pandemic and the soft winter. You can then cynically assess that the Urgenda ruling did not result in the required policy and was thus not effective. But it is more realistic to emphasise that the policy-based reaction to Urgenda came too late and was not adequate. So there was a factor of a lack of willingness to observe the judicial ruling. That may not be rewarded too easily.

On top of that, we also attach little value to the effectiveness argument in other regards. It would be strange to approve environmental pollution of one company on the single ground that the other company pollutes as well. Such a defence is based on a quite cynical worldview. ‘I have no responsibility because others do not take their responsibility either and are also not willing to do so.’

That is why the requirement that a climate ruling has to be effective is not wise. On top of that, such a requirement is not practically enforcible in the context of a civil procedure. Paradoxically enough, setting such a requirement can reduce the effectiveness of the law. Considering the state of the climate, the idea that companies have a responsibility to counteract climate change and the worldwide inability to adopt adequate climate regulations, this is not an appealing perspective.