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Milieudefensie v. Royal Dutch Shell: What Corporate Canada Needs to Know About Climate Lawsuits

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Executive Summary

Climate activists celebrated a landmark victory in May in the Netherlands. In Milieudefensie et al. v. Royal Dutch Shell [1] (“Milieudefensie” or the “Shell case”), The Hague District Court (the “Court”) found that Royal Dutch Shell plc (“Shell”) owed a duty of care to Dutch citizens to prevent injury resulting from the carbon emissions associated with its operations and its products.

The Court held that there is an “unwritten standard of care” grounded in the Dutch Civil Code and informed by European and International treaties obligating Shell to take steps to reduce its carbon emissions and contribute to the prevention of dangerous climate change so that Dutch citizens may enjoy their right to life and their right to respect for private and family life. And, while Shell is widely recognized as a leader among its peers in the field of corporate climate policy and decarbonization efforts, the Court found that Shell was not moving fast enough or taking tangible reduction steps. Stated otherwise, Shell’s approach to emissions reduction did not (or, rather, imminently would not) meet the “unwritten standard of care.”

Even though Shell’s most recently published climate strategy is to reduce the carbon intensity of its products by 20% by 2030, 45% by 2035 and 100% by 2050 [2], the Court ordered Shell (including members of the Shell Group, such as Shell Canada) to reduce its overall emissions from 2019 levels on a net basis by 45% by 2030. The decision does not mandate how or where these reductions must occur, just the overall result to be achieved. As the decision applies both to Shell’s own emissions and the emissions associated with use of its products, the decision has implications for the entire supply chain. Shell’s CEO has indicated that it will appeal the decision, but also noted that the decision does not change Shell’s ambitious plans, it just expedites the actions to be taken.[3]

Will this decision move the dial on climate change? Not likely. Buried in the decision, and given short shrift, there is a recognition of the “twin challenge of curbing dangerous climate change and meeting growing global population energy demand.” [4] Until global demand for oil and gas and related products is reduced, an approach that targets individual companies on a piecemeal basis will have only limited effect on “curbing dangerous climate change.” As we’ve already seen from the exit of producers including Shell, Statoil and Total from Alberta’s oil sands, individual companies can reduce their own emissions by selling energy intensive assets to remove them from their portfolios. Those assets, however, remain in production. While the Canadian experience so far has been that such assets have been taken up by Canadian companies with their own ambitious approaches to responsibly managing their environmental liabilities, [5] this may not always be the case. Encouraging large companies such as Shell to divest from energy intensive assets does not mean the oil and gas will be left in the ground. Other producers may be less accountable or create different environmental impacts. In short, there is a potential issue of ‘be careful what you wish for’ when litigants (or shareholder activists) target individual oil and gas companies in a trade-exposed industry.

We leave aside this broad and complicated socio-political issue and, in this bulletin, provide our analysis of the decision and its implications for future climate litigation in Canada. We look briefly at the current state of climate litigation in Canada, including the success of arguments premised on the doctrine of justiciability, and we consider the prospects of a novel tort claim framed along the lines of Milieudefensie both under Canadian common law and under the Civil Code of Quebec.

The Shell Decision

In a first-of-its-kind ruling, a Dutch court has granted in part a class action lawsuit filed by Milieudefensie and six other environmental groups ordering Shell and all the members of the Shell group to cut their carbon dioxide emissions by net 45% in 2030 compared to 2019 levels. The claimants did not seek monetary damages, only a court order that Shell cut its carbon dioxide emissions.

 


 

How did Shell Respond to the Court ruling?

In a LinkedIn post following the ruling, Shell CEO Ben van Beurden said that Shell was surprised at the ruling and expected to appeal. He added that the plaintiffs and Shell shared the same goal, to tackle climate change and to achieve the goal of the Paris Agreement to limit global warming to 1.5 degrees Celsius.

Mr. van Beurden also said that the ruling did not mean a change in Shell’s climate change strategy, but rather an acceleration. He added that the energy transition was “far too big a challenge for one company to tackle” or even one country or one continent.  The change must address the demand for carbon-based energy, not just its supply, and that means that demand for new low-carbon products must grow. “For companies to invest successfully, they also need bold, clear and consistent government regulations,” he pointed out.

 


 

The Court’s order directs Shell, both directly and via the companies and legal entities that it commonly includes in its consolidated annual financial statements, to limit the aggregate volume of all carbon dioxide emissions from business operations and products sold by the Shell group (ie. Scope 1, 2, and 3 emissions [6]) to at least net 45% less than 2019 levels by the end of 2030.

Role of Conventions, International Agreements and Policy

While international agreements bind states and not private parties, it is important to consider international conventions, and especially European treaties, as they played an important role in the Shell decision. Significantly, some of these conventions refer to non-party stakeholders or non-State actors, and the Court made use of the content of these international conventions as an element to be considered in the analysis of the “unwritten standard of care” of the Civil Code of the Netherlands. For example, the Court noted that the Paris Agreement makes reference to “non-Party stakeholders” and mentioned the Treaty on the Functioning of the European Union and European Directives that established a scheme for greenhouse gas emissions allowance trading.

The Court also took notice of a number of other initiatives that helped inform the “unwritten standard of care,” including the Climate Ambition Alliance established in 2019, in which states and non-State actors signalled their intention to achieve net-zero CO2 emissions by 2050; the reports of the International Energy Agency and the World Energy Outlooks published annually, and especially the report published in October 2020 that accepted the concept of Net Zero by 2050.

Finally, the Court noted the December 2019 decision of the Supreme Court of the Netherlands in Urgenda Foundation v State of the Netherlands (“Urgenda”) [7], in which the Court upheld lower court decisions and ordered the State to reduce the country’s greenhouse gas emissions. By then, and following the lower court decisions, the Dutch cabinet had already reached a National Climate Agreement and in 2019 the Dutch Climate Act [8] came into force. These encompassed a series of measures between companies, social organizations and government bodies for the reduction of greenhouse gas emissions by 49% in 2030 relative to 1990. More than 100 parties have jointly worked on a cohesive set of proposals with the aim of achieving the 2030 carbon reduction target. Shell Nederland signed onto that agreement on September 12, 2019.

The Role of Shell and Shell Group Activities

The Court examined the climate change activities of the Shell group, noting that Shell reported on the greenhouse gas emissions of the various Shell companies, including 100% of the emissions for entities that Shell operated (even if not exclusively owned by Shell) and a pro-rata percentage of emissions based on Shell’s equity interest in other entities.

The Court even made reference to Shell’s activities in Canada:

2.5.10 From 2006/2007 onward, the Shell group invested in tar sand in Canada in order to extract tar sand oil. The Shell company in question, Shell Canada, sold some parts of this investment in 2017. From late 2017/January 2018, the Shell group started to focus on the extraction of oil and gas from shale, which requires a drilling technique known as fracking. It is an intensive process that costs extra energy and consequently may culminate in a higher CO2 emission per unit of energy generated as compared to the conventional extraction of petroleum and natural gas. Moreover, the extraction of shale gas and shale oil, it turns out, releases the highly potent greenhouse gas methane into the atmosphere.

The Court noted that the Shell group is a “major player” on the worldwide market for fossil fuels and that the total emissions of the Shell group, including those of the consumers of its products, exceed the carbon dioxide emissions of many states, including the Netherlands.

The Court referred to a number of Shell documents, including:

  • The 2019 Sustainability Report in which the board of directors is designated in a climate change management “org chart” as having oversight of climate change risk management (para. 2.5.1);
  • The Net Carbon Footprint Ambition presented in 2017, a long-term ambition with which the Shell group seeks to reduce the CO2 intensity of the energy products sold by the group by 2050 (para. 2.5.11);
  • The 2018 Sky Report for the Development of Future Energy Systems, which is used by Shell to support and test its business decisions. The report assumes that society will reach net zero emissions in 2070;
  • The 2020 Responsible Investment Annual Briefing aimed at investors in which Shell states that the group strives for a reduction of CO2 emissions to net-zero, in 2050, or sooner from the manufacture of all its products (Scope 1 and 2 emissions), and that Shell wants to reduce the CO2 intensity of its energy products sold (Scope 3 emissions) by 30% per unit of energy sold by 2035 and by 65% by 2050 (para. 2.5.18); and
  • An October 2020 explanation of the group’s strategic direction which included the statement: “Shell will reshape its portfolio of assets and products to meet the cleaner energy needs of its customers in the coming decades. The key elements of Shell’s strategic direction include: Ambition to be a net-zero emissions energy business by 2050 or sooner, in step with society and its customers….”

While Shell no doubt made these commitments and issued these public reports and statements in order to demonstrate its commitments and its concrete actions toward addressing climate change, Milieudefensie used Shell’s own reports, briefings to investors and the fact that Shell Netherlands had signed the Dutch Climate Agreement to argue that Shell’s actions were “too little too late.” The Court agreed, finding that Shell’s actions were “insufficiently concrete.” While it is too early to know if courts in other jurisdictions, or even an appeal court in the Netherlands, would draw the same conclusion as the Court, it is a timely reminder for all companies that corporate documents and disclosures on climate change and emissions reduction are likely to become evidence in a climate change lawsuit. As a result, all such public disclosures should be evaluated carefully through that lens.

A Class Action?

In the initial pages of the judgment, the claimants are referred to as part of a class action. The words “class action,” however, must be understood as a procedural vehicle under Dutch law, which does not follow the North American model, but is more similar to European models. A crucial distinction is that the Dutch model does not have a certification or authorization process.

While the Court ruled that the class action was admissible under Dutch class action law as a public interest class action, it confirmed that that the interests of “current and future generations of the world's population” were not suitable for “bundling.” In Canadian terms, that means the proposed class definition was too large. The Court, however, did approve a “bundling” of the interests of current and future generations of Dutch residents.

We would expect a Canadian court to take a similar approach in rejecting a global class, but even then the road to certification or authorization is likely to be harder under Canadian law. A class comprising “current and future generations of Canadian residents” is also likely too broad a class for Canadian courts to certify.

Legal Basis for the Claim

As mentioned previously, Milieudefensie and the other claimants based their claims on the “unwritten standard of care” grounded in the Dutch Civil Code, and described their claim against Shell (referred to as RDS in their claim) as follows:

RDS has an obligation, ensuing from the unwritten standard of care pursuant to Book 6 Section 162 Dutch Civil Code to contribute to the prevention of dangerous climate change through the corporate policy it determines for the Shell group. For the interpretation of the unwritten standard of care, use can be made of the so-called Kelderluik criteria, human rights, specifically the right to life and the right to respect for private and family life, as well as soft law endorsed by RDS, such as the UN Guiding Principles on Business and Human Rights, the UN Global Compact and the OECD Guidelines for Multinational Enterprises. RDS has the obligation to ensure that the CO2 emissions attributable to the Shell group (Scope 1 through to 3) will have been reduced at end 2030, relative to 2019 levels, principally by 45% in absolute terms, or net 45% (using the IPCC SR15 report and the IEA’s Net Zero emissions by 2050 scenario as a basis), in the alternative by 35% (using the IEA’s Below 2 Degree Scenario as a basis), and further in the alternative by 25% (using the IEA’s Sustainable Development Scenario as a basis), through the corporate policy of the Shell group. RDS violates this obligation or is at risk of violating this obligation with a hazardous and disastrous corporate policy for the Shell group, which in no way is consistent with the global climate target to prevent a dangerous climate change for the protection of mankind, the human environment and nature.

Commentators have referred to this “duty of care” as an expression that echoes the common law tort of negligence, but the Netherlands is a civil law country and the basis of the claim and the Court’s decision is firmly grounded in the specific language in Book 6 Article 6 of the Dutch Civil Code which reads as follows:

[unofficial translation]
Article 6:162 Definition of a ‘tortious act’
1. A person who commits a tortious act (unlawful act) against another person that can be attributed to him, must repair the damage that this other person has suffered as a result thereof.
2. As a tortious act is regarded a violation of someone else’s right (entitlement) and an act or omission in violation of a duty imposed by law or of what according to unwritten law has to be regarded as proper social conduct, always as far as there was no justification for this behaviour.
3. A tortious act can be attributed to the tortfeasor [the person committing the tortious act] if it results from his fault or from a cause for which he is accountable by virtue of law or generally accepted principles (common opinion).

Shell contested the action and filed a motion for inadmissibility, which in Canada is the equivalent of a motion to strike or dismiss on the basis that the claim was not justiciable, or appropriate for adjudication by the Court. Shell appears to have argued that Milieudefensie’s claim was not based on Shell having failed to comply with applicable law, but rather on the idea that Shell should be going above and beyond what the law required. As such, the resolution of the issues raised in the claim advanced by Milieudefensie should not be provided by a court, but should instead come from the legislature and the political process (para. 4.1.2). As discussed further below, to date, the doctrine of justiciability has been a successful defence in some climate change litigation in Canada, though the Canadian experience is with cases brought against governments and not private companies. In Canada, justiciability is concerned with the Court’s proper role within Canada’s constitutional framework and the demarcation of powers between the Courts and the other branches of government.

What Milieudefensie appears to have argued in response, based on reasoning that the Court later adopted in its decision on the merits, was that the “unwritten standard of care” from the Dutch Civil Code was not limited in scope to an obligation to comply with existing Dutch law. Instead, it should be informed and given content by other elements, including international “soft law” instruments and the human rights related provisions found in international and European treaties. Those included the rights related to the protection of life, and in respect of protection against state infringement on the private and family life of Dutch citizens. On this basis, the Court declined Shell’s motion for inadmissibility, observing that “[a]ssessing whether or not RDS has the alleged obligation and deciding on the claims based thereon is pre-eminently a task of the court” (para. 4.1.3). The Court wholly disregarded Shell’s argument about the undesirability of claims against individual corporations to achieve broad social goals (para. 4.5.3).

Decision on the Merits

The decision on the merits relies on specific elements of Dutch and European law that are quite different from the laws applicable in Canada.

In particular, Shell was found to have an obligation to reduce its emissions arises from an:

“unwritten standard of care laid down in Book 6 Article 162 Dutch Civil Code, which means that acting in conflict with what is generally accepted according to unwritten law is unlawful. From this standard of care ensues that when determining the Shell group’s corporate policy, Shell must observe the due care exercised in society. The interpretation of the unwritten standard of care calls for an assessment of all circumstances of the case in question.” (para. 4.4.1)

In interpreting the “unwritten standard of care” and considering whether Shell’s corporate policy adhered with this standard, the Court considered:

(1.) the policy setting position of RDS in the Shell group, (2.) the Shell group’s CO2 emissions, (3.) the consequences of the CO2 emissions for the Netherlands and the Wadden region, (4.) the right to life and the right to respect for private and family life of Dutch residents and the inhabitants of the Wadden region, (5.) the UN Guiding Principles, (6.) RDS’ check and influence of the CO2 emissions of the Shell group and its business relations, (7.) what is needed to prevent dangerous climate change, (8.) possible reduction pathways, (9.) the twin challenge of curbing dangerous climate change and meeting the growing global population energy demand, (10.) the ETS system and other ‘cap and trade’ emission systems that apply elsewhere in the world, permits and current obligations of the Shell group, (11.) the effectiveness of the reduction obligation, (12.) the responsibility of states and society, (13.) the onerousness for RDS and the Shell group to meet the reduction obligation, and (14.) the proportionality of RDS’ reduction obligation.

After weighing these various considerations, the Court ultimately decided that Shell’s policy, policy intentions and ambitions amounted to “rather intangible, undefined and non-binding plans for the long-term (2050).” The Court also noted that Shell’s plans were not unconditional. Rather, the disclaimers and cautionary notes in its policy documents demonstrated that they were “dependent on the pace at which global society moves towards the climate goals of the Paris Agreement (‘in step with society and its customers’).” From this, the Court deduced that Shell was retaining the right “to let the Shell group undergo a less rapid energy transition if society were to move slower.” The Court described Shell’s policy as demonstrating that the Shell group mainly monitors developments in society and lets states and other parties play a pioneering role. The Court concluded that this disregards Shell’s individual responsibility, which requires it to actively effectuate its reduction obligation through the Shell group’s corporate policy (para. 4.5.2). Shell’s policy, intentions and ambitions were incompatible with its reduction obligation, which implied an imminent violation of the reduction obligation (para. 4.5.3).

Québec readers will see that the “unwritten standard of care” set out in the Dutch Civil Code has some resemblance to article 1457 of the Civil Code of Quebec, which also deals with non-contractual obligation and which reads as follows:

1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.

He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody.

That said, the law in Quebec is clear and less accommodating: the violation of a statutory obligation does not amount to fault unless the statutory obligation amounts to the violation of an elementary rule of prudence [9]. In the other Canadian provinces, the rule is essentially identical, there is no such thing as a “regulatory or statutory tort.” [10] In short, if not even a breach of a clear statutory requirement forms the basis of a tort claim against an individual, it is difficult to conceive how the failure to meet requirements under international treaties could do so.

Thus, it seems doubtful that Canadian courts would have the means to rely on international treaties on the same basis as the Court did in the Shell decision in ascribing an unwritten standard of care to corporations in Canada. We also expect that in Canadian courts there would be close scrutiny of the issue of proximity in assessing the duty of care, and extensive consideration of the issues of causation as well as the remoteness of damage, if the duty was found to exist.

Climate Change Litigation in Canada: Implications of Shell and Novel Claims

So far, climate change litigation in Canada has been limited to actions against governments and has not proved very successful:

  • ENvironnement JEUnesse c Procureur général du Canada, a class action lawsuit filed in Quebec seeking a declaration that the federal government had failed to adopt satisfactory measures to combat greenhouse gas emissions in violation of its international obligations as well as seeking punitive damages failed at the authorization stage [11]. The Quebec Superior Court found that the issues raised were justiciable, but that a class action was not the right vehicle. In particular, the Court found that it should not decline jurisdiction on the basis of justiciability where a Charter violation is alleged. With respect to the class, however, the Court found that it was arbitrary, subjective and inappropriate as the Plaintiff did not provide a factual or rational explanation to justify the choice of age (i.e. citizens of Quebec aged 35 and under). The Court found that impossible to objectively and rationally identify a class that would be efficient and equitable (para. 140). The Court, however, alluded to its expectation that the issues raised would be subject to another action commenced by a single plaintiff. The plaintiffs have appealed.
  • La Rose v Canada, a similar lawsuit grounded in sections 7 and 15 of the Canadian Charter of Rights and Freedoms [12] against the federal government challenging the federal government’s conduct in the face of climate change, was met by a successful motion to strike on the basis that the claim was not justiciable and disclosed no reasonable cause of action [13]. The Plaintiffs were fifteen children and youth from across Canada. The Federal Court found that the claims under both sections 7 and 15 of the Charter were not justiciable. In considering justiciability, the question to be decided is whether the Court has the institutional capacity and legitimacy to adjudicate the matter. The Court noted that while policy and political questions are not a bar to judicial involvement, some questions are so political that courts are incapable or unsuited to deal with them. The Court noted that policy choices must be translated into law or state action in order to be amenable to Charter review and otherwise justiciable. In this instance, the Court found the claims were not justiciable because the Plaintiffs alleged a diffuse and overly broad and unquantifiable number of actions and inactions on the part of the federal government that did not clearly challenge specific policy responses translated into law or state action. The plaintiffs have appealed.
  • The claim against the government of Ontario in Mathur v Ontario [14] had a more precise focus and survived a motion to strike. In Mathur, a group of 12 to 24 year-old plaintiffs brought an application to challenge the Ontario government's repeal of the 2016 Climate Change Act, when Doug Ford’s conservatives took office. The Applicants asserted that Ontario’s emission reduction target is insufficiently ambitious, and that Ontario’s failure to set a more stringent target and a more exacting plan for combating climate change over the coming decade infringes the constitutional rights of youth and future generations. the Applicants are challenging very specific governmental actions and legislation. The result in La Rose could be distinguished because in Mathur, the Applicants were challenging policy decisions that were translated into law – in the form of the Cancellation Act – and state action – in that the Ministry of Environment set the Target, pursuant to the Cancellation Act. The action has not progressed further at this time.
  • Misdzi Yikh v. Canada [15] is a representative action filed by two hereditary chiefs of the Wet’suwet’en First Nation that asked for broad declaratory relief against the federal government for a host of activities, but that did not assert the claims in the context of any aboriginal or treaty rights. Like in La Rose, the claim was cast broadly. The Court noted that no specific laws or state actions that breach the rights of Dini Ze’ had been pled and granted the Crown’s motion to strike on the basis that the case was not justiciable. The plaintiffs have appealed.
  • Ecology Action, et al. v Minister of Environment and Climate Change is an application for judicial review by Ecojustice on behalf of Ecology Action Centre, Sierra Club Canada Foundation and WWF-Canada of the Report of the Regional Assessment Committee for the Regional Assessment of Offshore Oil and Gas Exploratory Drilling East of Newfoundland and Labrador, dated February 29, 2020 (the “Report”). They allege the Canadian government failed to properly assess the risks of exploratory drilling for oil and gas off the coast of Newfoundland and Labrador. The application asserts that the Impact Assessment Agency of Canada relied on a deficient assessment report in completing its regional assessment of offshore exploratory drilling in the region under the Impact Assessment Act. The applicants contend, among other things, that an increase in offshore oil and gas exploration threatens Canada's commitment to reach net-zero emissions by 2050. The Federal Court dismissed the claimants’ motion for an interim injunction prohibiting the Respondent Minister from making a regulation based on the Report until the Court issues a decision on the underlying application for judicial review, but also dismissed the respondents’ motion to strike the application for judicial review. [16] The matter has not yet progressed beyond this stage.

This summary demonstrates that climate change litigation is really in its infancy in Canada. To date, only governments have been named in claims and they have found some success in defeating such claims based on arguments regarding arbitrariness of the class (in class certification proceedings) and the overbreadth and diffuse nature of claims (in motions to strike based on justiciability). As these cases have yet to make their way through appeal courts, tremendous uncertainty still exists around the future of climate change litigation in Canada. In the meantime, the success achieved by the claimants in Milieudefensie will likely spur similar lawsuits in Canada with claimants seeking to rely on duty of care arguments that were successful in The Hague. It is worth noting, however, that before the decision in Milieudefensie, Dutch litigants had previously achieved success in holding the Dutch government accountable in Urgenda, where the Supreme Court ordered the State to reduce the country’s greenhouse gas emissions.

It seems a stretch, at least at this time, that Canadian courts would be prepared to hold individual companies liable for failing to meet standards informed by international law applicable to state actors, when they have been reluctant to examine whether the conduct of provincial or federal governments meets those standards. Unless and until a court is prepared to find that certain policy actions or legislation passed by governments to curb emissions is inadequate, we would expect individual companies to rely on compliance with such policies and legislation in defence of any claims. For the reasons discussed above and summarized below, we expect that a claim against an individual Canadian company for failing to reduce emissions adequately to protect the rights of Canadian citizens would face substantial hurdles in Canada.

  • First, there is no equivalents in Canada of the “unwritten standard of care” in Book 6 Article 162 of the Civil Code of the Netherlands, the legislative basis that allowed The Hague District Court to incorporate international and European conventions in ascribing a standard of care to Shell.
  • Second, we do not have the equivalent of the Dutch Climate Agreement and the Dutch Climate Act, nor do we have the European human rights treaties and the Directives of the European Commission referenced by the Court. It is well established in Canada’s public international law that international treaties have no direct effect in Canadian law unless they are incorporated in domestic legislation.
  • Third, whereas the Court was unsympathetic to Shell’s arguments of justiciability, it is to be expected that Canadian Courts will apply the principle more liberally and play a less activist role in the area of climate change policy. While the issue of justiciability arises in cases against government actions, it can also be raised in the context of demonstrating that corporations have met the standard of care (assuming a duty is found) based on compliance with existing Canadian laws, the adequacy of which should not be subject to adjudication by the Court.

There is no question that climate change litigation - in the form of class actions, applications for judicial review or novel tort claims - will continue to be brought in search of a formula that works in Canada. As activists achieve greater success in foreign jurisdictions, we can expect that Canadian litigants will examine these successes to guide their efforts here, and that we will continue to see new developments in this area of litigation.


[1] Milieudefensie et al. v Royal Dutch Shell PLC, ECLI:NL:RBDHA:2021:5339.

[2] Royal Dutch Shell plc, Our Climate Target (February 11, 2021). Note that these most recent targets were not before the Court in Milieudefensie.

[3] Ben Van Beuren, The Spirit of Shell will Rise to the Challenge (June 9, 2021).

[4] Milieudefensie at para. 4.4.2.

[5] As in the case of Shell in the Netherlands (where the Dutch Government granted Shell and Exxon a $2.4 Billion subsidy for a Carbon Capture Storage project at the Rotterdam port in May), a significant focus of new efforts in Canada is on the development of largescale Carbon Capture Utilization and Storage (“CCUS”) infrastructure with Canadian Natural Resources Limited, Cenovus Energy Inc., Imperial Oil Limited, MEG Energy Corp., and Suncor Energy Inc. having recently formed an alliance to advance the Oil Sands Pathways to Net Zero initiative.

[6] Paragraph 2.5.4 of the Judgment explains Scopes 1 to 3:

RDS [Shell] reports on greenhouse gas emissions on the basis of the World Resources Institute Greenhouse Gas Protocol (GHG Protocol). The GHG Protocol categorizes greenhouse gas emissions in Scope 1, 2 and 3:
Scope 1: direct emissions from sources that are owned or controlled in full or in part by the organization;
Scope 2: indirect emissions from third-party sources from which the organization has purchased or acquired electricity, steam, or heating for its operations;
Scope 3: all other indirect emissions resulting from activities of the organization, but occurring from greenhouse gas sources owned or controlled by third parties, such as other organizations or consumers, including emissions from the use of third-party purchased crude oil and gas.

In other words, the order includes not only the emissions of the Shell group but also those of its suppliers and the consumers of its end-products. In the case of Shell, 85% of the emissions are emissions from the consumers of its products.

[7] Urgenda Foundation v State of the Netherlands, Supreme Court 20 December 2019, ECLI:NL:HR:2019:2006. An English translation of this judgment is available here:  http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200113_2015-HAZA-C0900456689_judgment.pdf

[8] An English translation of the Climate Act is available here : https://www.klimaatakkoord.nl/documenten/publicaties/2019/06/28/national-climate-agreement-the-netherlands

[9] See Morin v. Blais, 1975 CanLII 3 (SCC), [1977] 1 SCR 570 at page 580 and St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 SCR 392, at para. 34 to 36

[10] See Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5, [2010] 1 SCR 132

[11] 2019 QCCS 2885

[12] Sections 7 and 15 of the Charter reads as follows :

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[13] 2020 FC 1008

[14] 2020 ONSC 6918

[15] Misdzi Yikh v Canada, 2020 FC 1059

[16] Sierra Club Canada Foundation v. Canada (Environment and Climate Change), 2020 FC 663

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