Roger Cox is the climate change rockstar few people have heard of. Yet his world-leading legal work is showing how corporations and governments can be held accountable for their lack of action to ditch fossil fuels in favour of clean energy.
The name of the Dutch lawyer, 53, may be unfamiliar, but Cox is well-known in esteemed circles – he was the former US vice-president Al Gore’s choice for Time’s 100 Most Influential People of 2021. His first landmark case, the Urgenda climate case in 2015, led to the Dutch government being called on to reduce its emissions by 25 per cent by 2020. The second groundbreaking win, which Gore described as a “David vs Goliath legal battle”, saw Cox taking on Royal Dutch Shell in May 2021 for failing to take sufficient measures to reduce emissions. The outcome requires the company to decrease its carbon output by 45 per cent by 2030, and sent ripples around the world.
Speaking to the New Statesman over Zoom, Cox explained how he has managed to elevate climate action in the courtroom. “I spent a few years thinking about how the law could be used as a lever to create a speedier energy transition and address [the] climate crisis properly,” he said, before deciding that human rights and duty of care was the way in. From a moral perspective, it would have been unimaginable not to have tried to use the law to tackle climate change, he added.
Despite the favourable ruling against the Netherlands, the emissions reductions have probably been met “by luck” because of Covid restrictions rather than by the Dutch government implementing adequate measures, said Cox. But, in his view, this is beside the point. “The real value of that verdict is that it changed the way we talk about climate change. The court order changed the narrative around the dangers of climate change, and made the public more aware of what is at stake and what needs to be done.”
Taking on Shell was the next logical step given that “the two main systemic players responsible for the climate crisis are governments and fossil fuel companies,” said Cox. The two are “tightly knit” and if they fail to change their ways, “we won’t be able to avert dangerous climate change”.
In his book Revolution Justified, published in 2011, Cox argued that “only the law can save us now”. Today, his answer is more nuanced. “We are in a big mess, we have a very large crisis and most people don’t understand what the urgency is. Obviously, we need more than court cases.” He cites the youth climate protests and pressure for climate action from investors as “encouraging”.
“If we only have court cases we won’t make it, but they are a very valuable tool and give lots of people insights into where responsibility for addressing climate change lies,” said Cox. This responsibility lies firmly with corporations, in his opinion. “Corporations tell us consumers need to change and that politicians have to make regulations, but if you delve into it deeper, it is big corporations who need to change. They lobby against new regulations, water them down, delay them, or make sure they don’t see the light of day.”
Since 2015, there have been around 30 similar cases against governments, based on the belief that failing to act in line with climate science is against human rights law. Many have been successful, such as those in Ireland, France and Germany. “Things are shifting,” said Cox. “But we need a lot more cases against big corporations in the fossil fuel industry or in industries related to it.” He cites recent cases against car manufacturers BMW, Volkswagen and Daimler in Germany, where citizens are, for the first time, suing private companies over their contribution to climate change.
These cases are only the tip of the iceberg compared with what is to follow, he suggested. “The next wave of litigation will be against the financial institutions that have financed carbon dioxide emissions,” predicted Cox. In the years to come, the “liability of companies working against the goals of the Paris [climate] Agreement” will be front and centre of legal minds everywhere. These firms and their boards will be held liable, he insisted. “They should know this.”
Board members should also know that sticking to the status quo means their companies “will never be financially solid enough to compensate for all the damage that year in, year out [because of climate change] they will incur around the globe.” The outcome for such companies will be bankruptcy, warned Cox. He is not a man to mince his words.
Most companies are blissfully unaware they could soon be facing such nightmare scenarios, believes Cox. They think they are doing their bit for the climate if they have a 2050 net zero strategy and try to compensate for their emissions by planting trees, he rued.
The UK is the latest government to be faced with the threat of the law. Earlier in January, the NGOs Friends of the Earth and ClientEarth announced they were taking the government to court. They believe the UK’s net zero strategy lacks the detail needed to meet such an ambitious goal and threatens future generations.
The case has a “good chance” of being successful because if we don’t reduce emissions at speed, “we will be dealing with the most serious human rights violation that has ever occurred,” insisted Cox. “It is a constitutional duty of the judiciary to make sure that human rights are respected.
“The pressure is mounting. I would like to think that we don’t need to go to court, but this is a pipe dream.”