Strategic Climate Litigation in the Dutch Courts: a source of inspiration for NGO’s elsewhere?

In its landmark Urgenda judgment of 20 December 2019 the Dutch Supreme Court confirmed the lower courts’ order compelling the State of the Netherlands to limit the joint volume of Dutch annual greenhouse gas emissions by at least 25% at the end of 2020 compared to 1990. This case, launched by the Dutch NGO Urgenda, may encourage further strategic climate change litigation against both governments and (multinational) companies. Already, building on Urgenda, the NGO Milieudefensie has launched a lawsuit against RDShell in the Dutch courts. To what extent may these cases serve as models in other jurisdictions? Two aspects deserve special attention: the procedural standing of NGOs, and the different legal grounds – duty of care derived from civil tort law (including choice of law), or from human rights law – upon which the courts in Urgenda based their decisions, and Milieudefensie bases its claim.


INTRODUCTION
Around the world, a growing volume of lawsuits deal with climate change. 2 The majority of cases are brought by citizens, NGOs and corporations against governments, with a trend showing that the number of plaintiff NGOs using litigation as a strategic tool to mitigate, adapt to, or compensate for losses from climate change is increasing. Such lawsuits are also on the rise against private corporations and the plaintiffs are, again, NGOs, but also cities, investors and shareholders.
Whether they include parties outside the court's jurisdiction or not, these cases have an inherently transnational dimension due to the global interests involved. They frequently build on each other. Often, where cases purport to influence government policies and corporations' accountability, strategic alliances are formed across borders.
This article is about recent developments regarding civil litigation on climate change in the Dutch courts. It discusses two cases initiated by Dutch NGOs. One against the Dutch government -Urgenda v. the State of the Netherlands ("Urgenda") -and one against a multinational corporation based in the Netherlands -Milieudefensie v. Royal Dutch Shell ("MD/RDS"). Both lawsuits are examples of strategic collective actions pursuing a public interest, supported by a number of persons defending their individual private interests. The remedy sought in both cases is injunctive relief to mitigate greenhouse gas (GHG) emissions.
The Urgenda judgment of the Dutch Supreme Court 3 has been called "the most important climate change court decision in the world so far" by the UN special rapporteur on human rights and the environment, David R. Boyd. 4 The case against Shell is in an early stage and has not yet led to a judgment, but the plaintiffs' strategy builds on that of Urgenda, and is also attracting wide interest.
To what extent may these cases, upon closer analysis, offer examples to follow in strategic climate litigation in other jurisdictions? One aspect to consider in this regard is the special Dutch rule on the standing in civil proceedings of NGOs representing collective interests or the public interest, which enabled these two lawsuits. Another, not unrelated to the first, is the variety of legal grounds -duty of care derived from civil tort law or from human rights law -upon which the courts in Urgenda based their decisions, and Milieudefensie bases its claim.

CIVIL PUBLIC INTEREST LITIGATION IN THE NETHERLANDS A) ADMINISTRATIVE AND CIVIL LITIGATION
Although administrative litigation may be used in the Netherlands to advance general interests, it is available only against orders and permits issued by administrative authorities. As a result, collective actions against policies and (lack of) action of the government have resorted to litigation before the civil courts. Similarly, the civil courts have been used for collective actions against private companies. In contrast to administrative proceedings, which in principle are limited to claims relating to 71 activities and interests within Dutch territory, civil actions may extend to activities and interests, including in environmental matters, outside the Netherlands.

B) STANDING: THE INTERESTS REPRESENTED BY THE NGO
Urgenda based its standing before the civil courts on a specific provision for collective actions, Article 3:305a of the Dutch Civil Code (DCC). So does Milieudefensie in its case against RDS. This provision, in its version applicable in our cases, grants a right of action to foundations or associations promoting the "similar interests" of other persons through civil law claims. Although it contains elements of a class action (the "similar interests" must be suitable to be "bundled" through the collective action), it does not create a class action in the proper sense. It is the NGO that has standing, not the persons whose interests it bundles. Nor do those persons have to be consulted or give their consent. If the ensuing judicial decision makes it impossible to exclude a person not wishing to be affected thereby, the judgment nevertheless binds that person. Injunctions as imposed in Urgenda and requested in MD/RDS are examples of such a decision.
The provision is thus open-ended as to the interests the NGO promotes. 5 Those interests may indeed be "diffuse". Although private international law (PIL) aspects were discussed in the legislative process, 6 no special PIL rules were included to limit the article's scope. The provision covers both collective actions promoting private interests (which can indeed be "bundled") and actions in the general interest. Its hybrid nature explains why in Urgenda, the courts could differ in their views on whose interests to consider, and why in MD/RDS, the parties disagree on whether the interests the plaintiffs represent are sufficiently similar.

URGENDA V. THE STATE OF THE NETHERLANDS A) A NARROW DISPUTE
Urgenda brought its lawsuit in 2013, asking the court to order the State of the Netherlands to limit the volume of Dutch GHG emissions such that by the end of 2020 this volume would be reduced by 40%, or at least 25%, in comparison to 1990. The Government's and Urgenda's opinions regarding the reduction targets for 2100, 2050, and 2030 did not differ: the sole issue was the target for 2020, the pace required to reduce the emissions so as to stay below the 2°C global temperature rise target on which the parties agreed. 7 So the case exclusively concerned the narrow question of whether Dutch emissions must be reduced by at least 25% in 2020 compared to 1990, rather 5 According to the history of this statutory provision, ideological interests can also be represented in a class action. The admissibility of "a claim brought by an environmental organisation to protect the environment, without an identifiable group of persons requiring protection" is specifically mentioned. 6 See VAN  Urgenda brought the case both on its own behalf and on behalf of 886 individual persons. In so far as the foundation was acting on its own behalf, based on Article 3:305a DCC, the District Court held that it could act in the interest not only of the current population of the Netherlands, but also of persons outside the Netherlands, and of future generations, since "all of them hav[e] an interest in a sustainable society which [Urgenda] seeks to protect".
Regarding the 886 individual plaintiffs, the Court ruled that they lacked any additional personal interest, and denied the claims brought on their behalf. 9

LEGAL BASIS OF THE JUDGMENT: DUTY OF CARE DERIVED FROM CIVIL TORT LAW
Urgenda based its claim primarily on the core provision of the Dutch civil law on torts, Article 6:162 DCC, and alternatively on Articles 2 and 8 of the European Convention on Human Rights (ECHR). The District Court followed the plaintiff in its primary claim.
Given the world-wide interests represented by Urgenda, the Government might have argued that the laws of each State concerned, and not just Dutch law, should determine whether the conduct of the Netherlands was (un)lawful (Article 4 (1) Rome II Regulation). As it happened, in contrast to MD/RDS, Dutch tort law was applied without further ado. 10 The District Court based its finding that the State was acting unlawfully towards Urgenda on the duty of care -more specifically hazardous negligence -on "a rule of unwritten law pertaining to proper social conduct" contained in Article 6:162 DCC. 11 This duty of care being an "open norm", the court set itself the task of determining its levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels…" (Art. 2 (1) a). 8  One would have expected the Court to declare these claims inadmissible instead of denying them. The decision was not questioned in appeal, so that these individual claimants were no longer involved in the case. 10 Arguably, the Court should have raised the applicable law issue of its own motion, cf. Art. 10:2 DCC. 11 "1. A person who commits an unlawful act toward another which can be imputed to him, must repair the damage which the other person suffers as a consequence thereof. 2. Except where there is a ground of justification, the following acts are deemed to be unlawful: the violation of a right, an act or omission violating a statutory duty or a rule of unwritten law pertaining to proper social conduct. content in the case at hand, "being mindful of the State's power of discretion in the way of fulfilling its duty".

a) Reflex effect of global and European norms; role of global science based climate policies
Climate change being a global hazard, in respect of which the Dutch government had a "shared risk management duty", both the State's duty of care to avoid dangerous impairment of the living climate, including in the Netherlands, and its margin of discretion were informed by the global and European normative framework concerning climate change binding upon the Netherlands, as well as its constitutional duties.
The Court referred in particular to the United Nations Framework Convention on Climate Change (UNFCCC, also often referred to as the "Rio Climate Change Treaty"), 12 the TFEU, Articles 191-193, 13 and Articles 2 and 8 of the ECHR. 14 Although these instruments, binding upon the State, "did not create rights Urgenda could directly invoke", they did have a "reflex effect" upon the State's duty of care. Therefore, this duty should be interpreted so as to avoid a conflict with the State's international obligations.
These obligations, moreover, had to be considered in the light of the latest scientific knowledge, foremost the reports of the Intergovernmental Panel on Climate Change (IPCC). The IPCC had determined that, in order to limit the rise in global temperature to 2°C, developed countries listed in Annex I to the Kyoto Protocol such as the Netherlands, should reduce their emissions by 25-40% by 2020 in comparison to 1990 levels.

b) Causality
Whilst proving the causal link between GHG emissions, global climate change, and its localized effects is a challenge in lawsuits for damages suffered, for the purpose of prospective injunctive relief the burden of proof is less severe. The Court found that the causal link between emissions from Dutch territory and climate change, including its effects on the Dutch living climate, was sufficiently established. That the current Dutch GHG emissions are limited on a global scale does not alter the fact that they contribute to climate change. Therefore the State has an obligation to take precautionary measures.
3. An unlawful act can be imputed to its author if it results from his fault or from a cause for which he is answerable according to law or common opinion" (translations from HAANAPPEL, P. And, "in view of a fair distribution, the Netherlands, like the other Annex I countries, has taken the lead in taking mitigation measures and has therefore committed to a more than proportionate contribution to reduction. Moreover, it is beyond dispute that the Dutch per capita emissions are one of the highest in the world." c) Trias politica, other defences; order given Finally, the Court rejected the State's objection that by granting the requested order it would interfere with the distribution of powers (trias politica) in the Dutch democratic system. We will see how the Supreme Court disposed of this objection.
After considering several other defences, the Court concluded that the State's duty of care required immediate additional mitigation action to ensure that by 2020 the Dutch GHG emission level was reduced by 25-40%. Given the State's margin of discretion, the reduction order was limited to 25% only.

STANDING: CLAIM ADMISSIBLE REGARDING THE INTERESTS OF CURRENT DUTCH POPULATION
On appeal by the Government and cross-appeal by Urgenda, the Court of Appeal confirmed the District Court's judgment, 15 but took a different course both regarding the standing of Urgenda and the legal basis for the reduction order.
For its decision on Urgenda's standing, the Court of Appeal considered Article 3:305a DCC together with Article 34 ECHR. The District Court had found that Urgenda was barred by the latter provision to rely on the ECHR in view of the ECtHR's case-law according to which it could not claim to be itself a victim of a violation of Articles 2 and 8, and "public interest actions" are excluded. In contrast, the Court of Appeal took the view that regarding access to the Dutch courts, not Article 34 ECHR but Dutch procedural law was conclusive. Under Article 3:305a DCC Urgenda's claim was already admissible insofar as Urgenda acted in the interests of the current, in particular the younger, generation of Dutch nationals.

LEGAL BASIS OF THE JUDGMENT: ARTICLES 2 AND 8 ECHR
This shift of focus regarding the standing of Urgenda paved the way for a shift in the legal basis for the GHG emission reduction order. Referring to global climate change policy and climate science, and to international and European law along the lines of the District Court's judgment, the Court concluded that the State by resisting a reduction by at least 25% by the end of 2020 was failing to fulfil its duty of care pursuant to the positive obligations flowing from Articles 2 and 8 ECHR. The Court came to this conclusion although, in the appeal stage, due to a new calculation method more in line with IPCC methodology, the aimed percentage for the State's GHG reduction for 2020 was adjusted to 23%. "That is not far from 25%, but a margin of uncertainty of 19-27% applies… Such a margin of uncertainty is unacceptable." D) THE SUPREME COURT: THE COURT OF APPEAL'S JUDGMENT CONFIRMED

STANDING: CLAIM ADMISSIBLE REGARDING THE INTERESTS OF CURRENT DUTCH RESIDENTS
The Supreme Court 16 agreed with the Court of Appeal that the fact that Urgenda could not lodge a complaint with the ECtHR on the basis of Article 34 ECHR because it is not itself a potential victim of a violation of Articles 2 and 8 ECHR, did not detract from its right to institute proceedings before the Dutch courts in accordance with Article 3:305a DCC "on behalf of residents who are in fact such victims".

DUE DILIGENCE DERIVED FROM ARTICLES 2 AND 8 ECHR
The Supreme Court also followed the Court of Appeal regarding the legal grounds for its reasoning. The Supreme Court noted that the interpretation of Articles 2 and 8 by the Court of Appeal went beyond the case-law of the ECtHR, "which has not yet issued any judgments regarding climate change or decided any cases that bear the hallmarks that are particular to issues of climate change [such as] the dangers presented by a globally occurring activity -the emission of greenhouse gases all over the world, and not just from Dutch territory -whose consequences will have a worldwide impact, including in the Netherlands". It therefore took care to explain its interpretation method, paraphrasing the ECtHR's own interpretation standards. Referring to the "common ground" interpretation of the Strasbourg Court, the Supreme Court hooked international and European law, both legally binding and not binding, and global science policy and the findings of climate science onto positive ECHR obligations.
The Court stressed the serious risks of climate change that may take a wide variety of forms (sea level rise, heat stress, deteriorated air quality, increasing spread of infectious diseases, excessive rainfall, and disruption of food production and drinking water supply). The fact that these risks would only become apparent in a few decades did not mean that Articles 2 and 8 ECHR would not offer protection against this threat. Therefore, the risks caused by climate change are sufficiently "real and immediate", as required by the ECtHR's case-law to bring them within the scope of Articles 2 and 8.
Moreover, this protection is not limited to specific persons, but to society or the population as a whole. The Court referred here to judgments of the ECtHR, according to which with regard to environmental hazards that may endanger an entire region, Articles 2 and 8 ECHR offer protection to the residents of that region.

JOINT RESPONSIBILITY OF THE STATES AND PARTIAL RESPONSIBILITY OF INDIVIDUAL STATES
Whereas the "I only have to do my part, if the others do as well", "my emissions are too small to count" and the "waterbed" ("if I reduce my emissions, other States will produce more") arguments were dealt with the District Court in the context of causality required under civil tort law, the Supreme Court, relying on Articles 2 and 8 ECHR, followed a public international law approach. Under Articles 2 and 8 ECHR the Netherlands is obliged to do "its part" in order to prevent dangerous climate change, even if it is a worldwide problem. The objection that a State can decline its partial responsibility because other States do not comply with theirs, or that its reduction does not help because other States will continue their emissions, is unacceptable. And so is the assertion that a country's own share in global GHG emissions is very small and makes little difference on a global scale. "Indeed, acceptance of these defences would mean that a country could easily evade its partial responsibility by pointing to other countries or its own small share."

THE 25-40% TARGET
The Supreme Court concluded that although the 25-40% target was not a binding rule or agreement "in and of itself, there is a high degree of international consensus on the urgent need for the Annex I countries to reduce greenhouse emissions by at least 25-40% by 2020 compared to 1990 levels, in order to achieve at least the 2°C target, which is the maximum target to be deemed responsible. This high degree of consensus can be regarded as 'common ground' within the meaning of the ECtHR case law". This target applies to each Annex I country individually, irrespective of EU arrangements. The State has not "provided any insight into which measures it intends to take in the coming years". Nor has it substantiated that the reduction of at least 25% by 2020 is impossible or disproportionate: the State initially pursued a policy aimed at a 30% reduction by 2020, and other EU countries are pursuing much stricter climate policies than the Netherlands.

TRIAS POLITICA; POLITICAL DOMAIN
The Government had argued that the reduction order amounted to an order to create legislation, which according to Supreme Court's own case-law was not permissible. Moreover, it was not for the courts to engage in the political considerations necessary for a decision on the reduction of GHG emissions.
In response to the first complaint, the Supreme Court pointed out that if the Government is obliged to do something, it may be ordered to do so by the courts, as anyone may be, at the request of the entitled party. This is a fundamental rule of constitutional democracy. The order is not for the State to take specific legislative measures, but leaves it free to choose the measures to be taken to achieve a 25% GHG emission reduction by 2020.
In response to the second complaint, the Supreme Court recognised the large degree of discretion under the Dutch constitutional system of the decision-making power of the government and parliament regarding the reduction of GHG emissions. But it is up to the courts to decide whether they have remained within the limits of the law by which they are bound, including those for the State arising from the ECHR. "This case involves an exceptional situation", in which "the Court of Appeal was allowed to rule that the State is in any case obliged to achieve the aforementioned reduction of at least 25% by 2020".

WERE THE COURTS RIGHT TO STEP IN? TO PROTECT WHOM?
In our 2015 Hague Academy lecture, delivered one month after the District Court's Urgenda judgment, we welcomed it "as a remarkable decision, based on an acute awareness of the nature and magnitude of an inherently global problem, and providing extensive and detailed grounds based on a review of the relevant global, European, and domestic law as well as available scientific evidence." 17 The judgment also met with broad criticism, however. Many expected that it would not stand in appeal. But it did. Yet, the confirmation of the order by the Court of Appeal and Supreme Court, once again, met with criticism.
We believe that part of the criticism (how can a NGO, acting without any check on whether it represents the interests it purports to promote, obtain an order from the courts requiring the State to reduce GHG emissions?) actually concerns the provision on collective actions, Article 3:305a DCC, which, as we have seen (supra II. B.) is an unusually open-ended and hybrid procedural norm. In fact, since 1 January 2020 a more limited version of this article applies. But it will still, it would seem, allow actions such as those discussed here.
Whilst this provision is not beyond criticism, given that it exists we do not share the view that the courts overstepped the boundaries of their judicial task. As the Supreme Court points out, "in this exceptional case" the courts had a special responsibility, and, as organs of the domestic legal order, they provided legal protection by ensuring compliance by the executive of its duty of care.
Moreover, it may be said that as a substitute for the missing international organs of collective enforcement, they stepped in to enforce the State's share in maintaining the global legal order regarding climate change: an example of George Scelle's notion of "dédoublement fonctionnel". 18 This appears most clearly and consistently in the District Court's judgment. By recognizing Urgenda's standing as representing the interests of humanity, present and future, the decision acknowledges that climate change affects people around the globe, and, by implication, that it affects them very unevenly regarding time, space, severity of, and capability to cope with, its impacts. Hence the distinction made in the UNFCCC between Annex I (industrialised) countries and non-Annex I (developing) countries and the Paris Agreement (concluded after the judgement) where it specifically takes into account "the urgent and immediate needs of those developing country Parties that are particularly vulnerable to the adverse effects of climate change". 19 By narrowing Urgenda's standing to the interests of the current Dutch population (Court of Appeal) or residents (Supreme Court), instead of those of humanity and future generations, these Courts lost some of the global perspective, and focused on the vertical relation between the State of the Netherlands and those within its jurisdiction. This view leads not only to a huge reduction in the numbers of people concerned, 20 but also of the distributional justice aspect 21 that forms part of the background of the District Court's ruling.

DUTY OF CARE DERIVED FROM CIVIL TORT LAW OR FROM HUMAN RIGHTS LAW?
There is no doubt that, especially in vulnerable developing countries with limited capabilities to mitigate or adapt to climate change, the human rights of individuals and communities, often highly dependent on agriculture or coastal livelihoods, are at this point in time already at stake. 22 But can this also be said, in the circumstances of this case, of the residents of the Netherlands, the population of one of the richest of the Annex I countries? Without any further differentiation, or assessment of the situation of groups or individuals?
According to the Supreme Court, Urgenda, representing the residents of the Netherlands, could invoke Articles 2 and 8 ECHR notwithstanding its Article 34 that bars actio popularis before the ECtHR. But Article 34 has a reason. Its aim is to bar complaints of an abstract nature: "an applicant must produce reasonable and convincing evidence of the likelihood that a violation affecting him or her personally will occur". 23 Certainly, the State of the Netherlands fell short of its duty of care. The Government, knowing it should do more to pursue an effective climate policy, did not take the necessary action without a credible justification. Parliament let it happen. The State of the Netherlands, while pretending to lead, in fact stayed behind almost all other EU countries, thereby increasing the risk of irreversible harm to its own population and the rest of the world.
Yet, the ECtHR has consistently held that, when applying Articles 2 and 8 to environmental matters, "the crucial factor in determining whether, in the circumstances of a case, environmental damage has violated one of the rights guaranteed by Article 8 (1), is the existence of a harmful effect on the private or family sphere of a person, and not simply the general deterioration of the environment…". 24 One can agree with the Supreme Court where, building on the existing case-law of the ECtHR, it interprets Articles 2 and 8 ECHR to the effect that they may also offer protection against harm caused by climate change, all the more because of its irreversible effects. These concrete effects may manifest themselves in (threat of) local droughts, heavy rainfalls, storms, etc, which present an immediate and real danger to certain individuals or even certain communities. But we do not think, in the light of the ECtHR's case-law, that it is, in the circumstances of this case, given the narrow issue at hand, a tenable position to say that the Dutch population is currently a (potential) victim of a violation of its human rights under Articles 2 and 8 ECHR. This is also hardly defensible if one compares this case with cases of vulnerable people elsewhere on our planet. 25 Such an overly broad interpretation of Articles 2 and 8 risks stripping these human right provisions of their effectiveness.
Furthermore, the way the Supreme Court uses the "common ground" method of interpretation of the ECtHR to hook international and European law and global science policy onto positive ECHR obligations, gives rise to doubt. Certainly, these international and European norms are broadly shared. But if, as the Supreme Court admits, its extensive interpretation of Articles 2 and 8 breaks new ground, then more is needed to argue that these shared norms also lend broad support to the position taken by the Supreme Court in this case.
The Supreme Court had the choice to base the State's duty of care on civil tort law (following the District Court) or human rights (following the Court of Appeal). 26 It chose to follow the Court of Appeal. While agreeing with the outcome of the Supreme Court's judgment, we believe that in this case the District's Court approach is more compelling than that of the Supreme Court. MD is asking the court to order RDS to limit the joint volume of all CO 2 emissions associated with its business activities and fossil fuel products such that the joint volume of those emissions be reduced by 45% by 2030, 72% by 2040, and 100% by 2050, all compared to 2010 levels; or, in any case, by 45% by 2030. 27 In contrast to Urgenda, the positions of the parties in this case are far apart. Among other issues, they disagree on the extent of the control of RDS over its CO 2 emissions, and the legal regime(s) that apply to these emissions. RDS argues that it has control solely over the emissions of RDS plc, and not, as MD claims, over the emissions of its subsidiaries, which are subject to the laws of each State where they are active, nor over those of the end users of its products who have their own responsibility for the use they make of these products.

C) JURISDICTION
MD bases the jurisdiction of the Hague District Court primarily on Articles 1, 4, and 63 of the Brussels I recast regulation (BIR), since Royal Dutch Shell plc, although having its statutory seat in London, has its principal place of business in The Hague. Moreover, MD invokes Article 7(2) BIR, arguing that the main cause of the damage occurs in the Netherlands, since it is there that RDS adopts the group policy that results in the climate damage, and affects people and the environment in the Netherlands, among other countries.
In contrast to a series of other cases against RDS, now pending before the Hague Court of Appeal, 28 MD is not also suing subsidiaries of RDS in other countries, but only the parent company. D) PRIMARY GROUND FOR THE CLAIM: CIVIL TORT LIABILITY MD bases its claim primarily on a civil tort committed by RDS arguing that Dutch law applies, not on the basis of Article 4 (1) but Article 7 of the Rome II Regulation. As damage may be suffered everywhere on Earth, Article 4 (1) could lead to the 27  application of a large variety of applicable laws. To avoid that result MD has opted for the choice of Dutch law permitted under Article 7 (1), claiming that RDS determines the group policy that its subsidiaries follow. RDS's response is that the event causing damage is not the group policy decision by RDS, which is "a mere preparatory act", but the concrete implementation thereof by Shell companies at the local level, as well as the conduct of the end users across the world. So, not Article 7 (1) (nor 4 (2) or (3)), but 4 (1) Rome II is applicable. In any event, even if Dutch law is held to be applicable, Article 17 Rome II should be applied. Based on the application of Dutch law, MD argues that RDS is acting contrary to the "rule of unwritten law pertaining to proper social conduct" referred to in Article 6:612 DCC. RDS was aware of the gravity of the danger to people and the environment caused by fossil fuels and of its share in creating the climate danger. Yet, since 2007 it has been reducing its investments in sustainable energy and has increased its investments in fossil activities. It is hampering the energy transition, e.g., by actively encouraging demand for fossil fuels, opposing government initiatives aiming to regulate Shell's activities, and misleading the general public about its real intentions and the real urgency of the climate issue. It thus violates its duty of care. For its part, RDS contests the causal link between its specific activities and dangerous climate change. Reducing its activities would make hardly any difference, and if RDS were ordered to do so, other companies active in the global market would immediately fill the gap. Therefore, RDS is not violating any duty of care. MD, building on the judgment of the Court of Appeal in Urgenda, argues, by way of alternative claim, that RDS is violating Articles 2 and 8 ECHR, which have "horizontal effect" in its relations with MD, but also the UN Guiding Principles on Business and Human Rights (UNGP's), the UN Global Compact, and the OECD Guidelines for multinationals. According to RSD, the parallel is unfounded: RDS is not a State, moreover, the requested order, which would not take effect before 2030, 2040, or 2050, is solely addressed to RDS and not to the many actors who are contributing to climate change. Of the international regimes that MD is invoking, the UNGP's are addressed to States, not to companies, and the UN Global Compact and OECD Guidelines are not binding upon companies either.
The oral pleadings before the Hague District Court are scheduled for December 2020.

F) DISCUSSION
In Urgenda, the plaintiff's private interests confronted a government, a defendant in charge of the public interest with jurisdiction over the territory of the Netherlands. The courts managed -albeit through different routes -to link the conduct of the State of the Netherlands to the global climate policy target of a minimum re-duction by Annex I States of 25% in comparison to 1990. That target applies to States, however, each State having to contribute "its share" within its jurisdiction, the idea being that if all States would comply with their duties under the Paris agreement, it should be possible to reach the 1.5° (preferably) or the 2°C target. 29 MD v. RDS is a different game. In this case the defendant is a private party providing society with energy, whilst operating in a global market. As RDS argues, it is only one of multiple actors contributing to climate change. Although developments in quantifying fossil fuel companies' past and current contributions to climate change, and in attributing fractions of the accumulation of CO 2 in the atmosphere to individual companies are progressing, 30 establishing an objective standard for future emissions, addressed by injunctive relief, is not evident.
A creative attempt has been made by a group of climate change lawyers to define an objective yardstick under civil tort law for the reduction obligation of enterprises, based on the "carbon budget" of the State where they operate, which itself would be derived from an annually determined global "carbon budget", with corrections to be made if the emissions of companies' supply chains, subsidiaries and end-users are included. However, MD has not relied on these Principles on Climate Obligations of Enterprises. 31 Nonetheless, RDS and other fossil fuel corporations have an increasing interest "to become part of the solution rather than passive (and profitable) bystander to continued climate disruption". 32 More broadly, one can see a trend away from a model of corporate responsibility narrowly focused on shareholders' interests, in which public health and safety risks are seen as external factors, towards a broader "stakeholder-oriented" model, requiring companies to act in a socially and environmentally acceptable manner, and assume these risks as an internalized corporate risk. Pressure from investors and shareholders, as well as ongoing public scrutiny, are helping to accelerate the transition of fossil fuel to non-fossil energy production. 33 Civil lawsuits such as the case Milieudefensie has launched also keep Shell and other fossil fuel corporations' eyes on the (green) ball, even though the legal basis for the claim may not be sufficiently strong to support the outcome the plaintiffs are hoping for. 34