A Shell Game? Using Science to Establish Accountability in Climate Litigation

The governance of climate change is entering a new era, in which accountability and justice are taking centre stage and where actors are learning to exert power in new and creative ways. The recent rise of climate litigation is a key indicator of this development. As civil society increasingly draws on the power of national courts to hold public and private actors to account for their climate actions, climate science is starting to play a new role in global environmental governance. Rather than only providing guidance and motivation for states to engage in more stringent climate policy measures, it is now used as a source of evidence to establish whether or not public and private actors can be held accountable for their climate (in)action. In this paper, we study the role of climate science in the 2020 Dutch court case of ‘Milieudefensie vs. Shell’. Using a detailed content analysis of documents submitted to the court by the civil society organisation Milieudefensie and the transnational corporation Shell, as well as the verdict issued by the Dutch national court, we examine how the three parties involved refer to climate science in assessing the climate impact of Shell’s corporate activities. In the content analysis, we focus in particular on the types and sources of science that the parties refer to, and how they integrate them into their argumentation. We find that defining ‘danger’ and ‘responsibility’ are key aspects where science is important for establishing accountability, and identify seven lines of argumentation through which the three parties engaged with these concepts. Our analysis of these lines of argumentation indicates that the science itself is never questioned, but that parties contest each other’s selection, interpretation and use of scientific findings. The paper shows how certain aspects of globally accepted climate science are so ambiguous that they can be used to argue for opposite positions in a court case, and highlights the importance of argumentative strategy, in addition to the content of the science itself, as key to understanding the role of climate science in climate litigation. This paper will contribute to ongoing debates within the ESG community about the emerging paradigm of earth system law, linking to the work of the new taskforce on climate governance and its working group on climate transparency, accountability and litigation.