Milieudefensie continues climate case against ING. ‘Lessons from the Shell case have been taken into account’

Milieudefensie is continuing its climate case against ING, despite the environmental organization’s recent legal defeat in another prominent climate case, against Shell. In fact, Milieudefensie actually sees new opportunities in the case against ING as a result of that judgment.

This is what Milieudefensie director Donald Pols said in an interview with NRC. This Wednesday evening, the environmental movement submitted a liability statement to the bank that had been amended on a number of important points, in which various ‘lessons’ from the Shell judgment were taken into account, according to Pols. If the bank does not respond to Milieudefensie’s new demands within five weeks, its lawyers will shortly thereafter serve a summons on ING. That would mark the beginning of a new major climate case.

A year ago, Milieudefensie announced that it was targeting the largest bank in the Netherlands for a new climate case. The environmental movement built on an initial victory in the lawsuit against Shell. Shell was obliged by the court in The Hague to disclose its CO in 2021₂emissions by 45 percent by 2030 (compared to 2019).

However, in the appeal in November this year, that ruling was overturned, because the Court of Appeal of The Hague saw no legal basis for such a specific reduction obligation for a specific oil company. A unique international precedent in which a company was required by the court to significantly reduce its emissions and those of its customers was thus partly reversed. While many international climate cases subsequently were partly based on that first statement.

But that doesn’t stop Milieudefensie from going after ING now. Pols states that his organization must continue to “fight” because the consequences of dangerous climate change are becoming increasingly serious and visible. “Now look again at the wildfires in California. You almost become numb to all the bad news.” According to him, ING is at the same time doing less and less to combat dangerous climate change. “Their emissions are increasing, even though they say they are committed to the Paris Climate Agreement. Then emissions should go down, right?”

The court has largely dismissed your previous victory against Shell. But you don’t seem to be dejected. Why do you see opportunities in the ING case?

“The court actually agreed with us for 80 percent of the content in the Shell case. The court has confirmed many of our statements. The counselors said: I agree with you, but I cannot accept the requirement of 45 percent less CO₂emissions, because there is no scientific consensus on such a requirement for a specific company. That requirement was actually too coarse-grained.

“We are now building the lawsuit against ING on that foundation. Our basic requirement is the same: ING must comply with international climate agreements and international climate science. But we have now made that general requirement of halving emissions more specific to ING.”

How?

“Because we have supplemented our general requirement with more detailed reduction requirements for specific sectors in which ING lends money.” Milieudefensie uses scenarios that describe how various economic sectors, such as the steel and chemical industries, must meet the objective of achieving net-zero greenhouse gas emissions by 2050. With intermediate objectives in 2030, 2035 and 2040. These scenarios have been drawn up by the International Energy Agency. Pols: “That really is the worldwide authority in this area.” The requirement is that ING requires its credit customers in those sectors to comply with those scenarios. If not, the bank will have to say goodbye to them.

In the earlier letter to ING, but also in the case against Shell, there were fewer intermediate goals. Will Milieudefensie take this one step further?

“No. This is in line with the decision to make our claim more detailed and thus align with the court’s judgment in the Shell case.”

So almost a year ago you sent that first letter to ING. You then demanded: ING must take action within eight weeks, otherwise we will start a lawsuit. However, Milieudefensie did not do that. Now there will be an amended requirement, including a new ultimatum. How do we know that things are serious now?

“I understand that question. But if ING does not respond to our demands now, we will send the summons very shortly afterwards. We are just putting the finishing touches on it.”

Why did it take a year?

“There are two reasons for this. The first is that we needed more time to write a good subpoena. It is a new sector for us – a bank is really different from an oil company. The second reason is that while writing we concluded that it would be a good idea to wait for the ruling in the Shell case and only then send the summons. So that you have the most recent case law. Given the Shell ruling, that was a wise decision.”

The court also said that your demand for Shell to reduce emissions would be ineffective. Because if Shell stops certain activities, other oil companies will simply fill the gap. Isn’t that just going to happen at ING?

“No. In any case, we are not convinced that you can easily take over ING financing. To grant loans, banks collect a lot of information and conduct extensive risk analyses. That cannot simply be replaced. You also hear this from energy companies: that it is really difficult to get their projects financed.

“But more importantly: we do not agree with this argument of the court. Companies should not hide behind the argument that ‘if we stop doing it, someone else will just do it’. This concerns unlawful behavior. Are you allowed to drive through red lights because others do so too? If you allow that argument to exist, the entire rule of law will collapse. Because then everyone will point at others in the courtroom.

“We also feel strengthened in that respect by previous rulings of the Supreme Court. He often says: it is not about whether something has an effect on climate change. What matters is whether a party is acting unlawfully.”

That sounds as if you have already completed all the arguments for deciding whether to appeal in the Shell case. Time is running out: you only have four weeks left to make a decision on this.

“We are not there yet. Such decisions must be made carefully and deliberately. My experience now is that if you don’t do that, it will bite you in the tail again later.”

Why wouldn’t you?

“You can also lose what you already have inside. For example, we could still lose on other points in cassation. Shell itself cannot appeal. They can only introduce new considerations if we go to cassation. If we do nothing, this outcome will remain.”

You must decide on Shell by February 12 at the latest. You have given ING a deadline of February 20. Do you have the people and resources for two major lawsuits at the same time next year?

“We currently have 6.3 million euros ready for climate matters. In theory, we even have money for three lawsuits.”

As far as we are concerned, these lawsuits are an illustration of a much larger problem. That is that large, multinational companies have become disconnected from all forms of democracy and regulation

Which matter is more important to you? The one against Shell or against ING? Shell itself is a large CO₂emitter, ING again finances many companies that all use CO₂ emit.

“They are of similar importance to us, because both companies have a major influence on the economy and we want to change the economy as a whole. But it is true: the impact of a reduction obligation for ING can reach further than one for Shell, because ING provides loans on a large scale worldwide. A reduction obligation will then have an impact on the entire economy and the financial sector.”

There was quite a bit of social understanding surrounding the judgment for Shell’s argument that the oil company cannot be held responsible for customers’ emissions. Those customers have to do that themselves. Do you still have sentiment on your side?

“The fact that there is a tilting sentiment is a ‘feeling’, nothing more than that. We don’t rely on feelings. We rely on facts. We see that since the court ruling on Shell, more people are supporting us financially. And as long as there is social support for our work, we will continue to do this work.

“As far as we are concerned, these lawsuits are an illustration of a much larger problem. That is that large, multinational companies have become disconnected from all forms of democracy and regulation. Because the rule of law is regulated nationally and these companies operate internationally. That challenge has become much more pressing with the growth of Big Tech, with the influence of someone like Musk in the United States. Who voted for KLM, who for ING? Who on Facebook or X?

“Nobody. And yet they determine the future of me and my children. They do not have to be socially accountable for this. If we as a society do not get a grip on the behavior of large companies, a new feudal system is at risk. Companies are the new nobility. That is why we want to present this to the judge.

“And he can say: well, there are no rules for those kinds of large companies. But that would be a recipe for chaos and anarchy.”

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