Why judges shouldn’t make climate policy

A Dutch court obliges the oil company Shell to cut its emissions by almost half. It is true that the climate should be protected – but who authorized the judges to make climate policy?

Joy in The Hague: The plaintiffs, including Milieudefensie boss Donald Pols, are happy about the judges' judgment.

Dhis court ruling is really a hammer: the British-Dutch oil company Shell is expected to cut its sales of oil and natural gas products by almost half in a few years. This is the result of a judgment from the Netherlands. The District Court of The Hague demands that Shell reduce its global emissions of climate-damaging carbon dioxide by 45 percent by 2030 compared to 2019. Mind you: This also includes those emissions that result from the consumption of all oil and gas products that the group sells anywhere in the world. They make up by far the largest part of the climate footprint of Shell’s operations.

It is the first time ever that a large corporation has been forced by a court into such a drastic change of course. Shell will of course appeal the district court’s decision. But it could take several years for the case to be settled in the last instance. Until then, a sword of Damocles hovers over one of the largest companies in the world. The only consolation for the Shell managers: The stock exchange has not yet taken the court in The Hague for full. The share price hardly reacted at all to the sensational judgment. Investors are obviously assuming that it won’t last.

Who authorized the judges to make climate policy?

But can Shell really be that sure of that? The decision of the judges is astonishing in several respects. First, of course, the question arises whether Shell can really be held responsible for its customers’ emissions. Isn’t it more likely that the driver is responsible for the climate damage than the petrol station at which he tapped the petrol? Second, the Shell court mandates not only to cut emissions by almost half in the Netherlands, but also in every other country in the world. Of course, the judges provide a reason for this that is more plausible: Shell’s CO2 emissions damage the citizens of the Netherlands because they contribute to further heating up the atmosphere. It doesn’t matter whether the emissions arise in Amsterdam, Los Angeles or Beijing.

But there is a third, much more fundamental objection to the judgment. The court is effectively pursuing climate policy, with very far-reaching consequences. Who authorized the judges to do so? In democracies, such far-reaching decisions should be made by elected MPs.

Climate protection is indisputably one of the most urgent tasks facing humanity. And the fossil fuels that companies like Shell market are responsible for the lion’s share of global carbon emissions. But climate protection measures must also be decided democratically. The court’s demand to sell far less oil and gas in the future than before is reminiscent of the planned ban on internal combustion engines in cars in various countries. But these bans were initiated by elected governments and passed by parliaments – not in the courtroom.

If the example of the Shell ruling catches on, that would be alarming. Not because tough measures against climate change are being initiated here. On the contrary: there is an urgent need for the consumption of oil and gas to be reduced rapidly and sharply. In Germany, the constitutional court has obliged politicians to do so. That’s the better way. If the judges conduct climate policy instead of the MPs, then that is dangerous. Climate protection will bring hardship and sacrifices. The cost will be huge. There will be winners and losers. This is precisely why the democratic legitimation of the measures is so important. Otherwise they will not be enforceable. Climate change cannot be combated simply by a court ruling that every second petrol station is closed.