Anticipatory climate litigation: A new role for climate science?

In the face of the climate crisis, civil society organisations and citizens are increasingly resorting to litigation to hold fossil fuel corporations accountable for their contribution to climate change. The 2021 landmark case Milieudefensie versus Royal Dutch Shell in the Netherlands was the first lawsuit in which a court ordered a carbon major to reduce its greenhouse gas emissions. Although the decision of the District Court was overturned in 2024, some key legal principles were confirmed by the Court of Appeal, contributing to a clarification of relevant legal frameworks and corporate responsibilities. This article argues that the case can be understood as an example of what we term ‘anticipatory climate litigation’. It shows how, instead of seeking compensation for past damages, plaintiffs innovatively sought to allocate responsibility for safeguarding the future. This allowed the plaintiffs to circumvent the difficulties of collecting evidence for a direct causal link between corporate emissions and damages encountered by the plaintiffs, which often results in the failure of climate damage compensation cases. Parties sought to convince the court of what can be considered a ‘global consensus’ around the danger of future climate impacts and associated corporate responsibilities. To this end, claimants were able to rely on a much broader knowledge base to make their case, including soft law, civil society reports, and scientific findings unrelated to the specific emissions of the defendant. We conclude that anticipatory climate litigation is a promising strategy for litigators to hold corporations accountable for their emissions, and to incrementally clarify what their responsibilities are.