“The white men from Shell” were not always seen to be “living on blood money” by the community of Ogale. When they first arrived in the 1950s, the decade Shell struck oil in the region, they were stars. Emere Godwin Bebe Okpabi and the other children would play by their caravans in the novel glow of electric light. As teenagers, they raced to push the men’s Land Rovers out of muddy pits and then refused to wash their hands for days. When the first gushes of black crude leaked into the Niger Delta—the artery of life for tens of thousands of settlements scattered across its swamp forest banks—they scooped it out of the river and doused their doorsteps, believing it could ward off evil spirits. But they were bringing the devil to their door.
“This is a sweet and sour story,” says Okpabi, dressed strikingly in a pink dashiki with a pocket handkerchief, paired with a bowler hat and shiny crocodile loafers. By the 1970s, he and his peers started to notice changes. Hunters returned from the bush with reports of animals going extinct. Strange diseases emerged, and the medicinal roots Okpabi’s community had relied on to heal them were dug up rotting in the earth.
No one witnessed this “oil sickness” more clearly than the midwives. Esther Kattey attended her first stillbirth in 1989, but there have been many since. Her rage at each rises in her voice like bile. “I can’t say what I am seeing! Women bleeding, screaming, suffering. Abnormal babies with big heavy stomachs. And at the end, they all die.”
Now king of Ogale and ruler of its 40,000 citizens, Okpabi is suing Royal Dutch Shell Plc, the UK-domiciled parent company to SPDC (Shell Petroleum Development Company of Nigeria), whose leaky pipelines have allegedly polluted his hometown. He is supported by a top London law firm, Leigh Day, which is funding the claim itself in the hope that justice will be served (and will include a large cheque for the firm from Shell).
The claims were filed in 2015 and after a five-year battle over whether UK courts can adjudicate Nigerian incidents, the UK Supreme Court ruled the trial could go ahead. But it’s now been more than seven years, and the trial date is still not set. Here we see the problem with “climate justice”.
“We live in a corrupt world,” says King Okpabi. “The shareholders of Royal Dutch Shell are living like bourgeoisie, making billions of pounds on the blood of a people whose lives they destroyed. You come here to do business, we receive you with wholeheartedness, you destroy everything about us! And then you drag us from courthouse to courthouse in London? You pay lawyers millions of dollars to prevent you from giving compensation to those whose way of life you have undone?”
Shell has used the tactics of deflection before. The company deployed the same challenge—that a European court couldn’t pass judgement on a case from Africa—to a lawsuit in the Netherlands, following another Niger Delta oil spill in 2004 (Shell has historically had a dual share structure, binding it to both the UK and the Netherlands). It was 13 years before The Hague Court of Appeal vindicated the plaintiffs. By that time, three out of four of them had died and their hometown, Goi, had been reduced to an evacuated, oil-drenched carcass. A rusty sign was pinned to its entrance: “Public Notice, PROHIBITION! Contaminated Area, Please Keep Off”. Here too we see the problem with “climate justice”.
Yet when the Goi verdict finally came in January 2021, the son of one of the deceased plaintiffs, Eric Dooh Junior, delivered his father’s victory speech through tears of joy. Speaking at the Visa Karena hotel at Port Harcourt in Nigeria, into which his whole community had crammed to stream The Hague’s final ruling, he declared: “Victory for all advocates of good environment! Victory for the entire Niger Delta!”. Two years on, I ask him whether anything has changed. “It is a laughing matter,” he tells me, unsmiling. “Shell has never changed their operational pattern in the Niger Delta region. The truth must be told.” And here, again, we see the problem with “climate justice”.
Corporate accountability is essential if we are to slow the pace of climate change. Since 1988, 100 fossil fuel companies have produced 71 per cent of greenhouse gas emissions (Shell, the largest oil and gas trader, is among them). Litigation is an indispensable weapon in the fight. But as it stands, that weapon is unloaded. It is merely decorative and powerless without provisional injunctions and persisting enforcement. It is difficult to access, technical to communicate, and costly to pursue—not just in money but in the most precious resource of all for this planet: time.
Shell, of course, agrees climate litigation is a waste of time, but its metric isn’t one of climate justice. “Litigation does little to address the real problem in the Niger Delta,” says Igo Weli, head of corporate relations for SPDC. What then is the real problem? “Oil spills due to crude oil theft, illegal refining and sabotage.”
Weli has a point—sabotage is a chronic problem in the region—but so is rusty, neglected company infrastructure. And so you get a sense of the binary blame-game that runs through the transcripts of these trials. Ultimately, The Hague found SPDC directly accountable for the contamination at Goi. When I charged Shell with Dooh’s accusation that no follow-up action has been taken, I received a list of measures it had taken in response. Yet every one was focused on anti-sabotage securitisation rather than modernising the original pipelines as King Okapbi and Eric Dooh Junior both demanded.
Litigation is an indispensable weapon. But as it stands, that weapon is unloaded
If it is justice we’re talking about, then securitisation of the Delta is not the answer. The threat of sabotage has powered military cooperation between Shell and the Nigerian government, with the company paying soldiers and armed militants to put down protests against Shell’s pipelines. Many mornings, King Okpabi says, the sun rises over new dead bodies scattering the road to the farmlands, people shot on sight in the name of vanquishing vandals. Military discipline is poor; women fear to walk the farmland road alone. “Shell has become synonymous with the Nigerian leadership. This is worse than the apartheid regime of South Africa,” Okpabi says.
By sticking to securitisation and arguing against litigation, Shell’s message is clear: it accepts no culpability for the environmental damage done to the people of the region. On the contrary, a spokesperson responded to a question about the company’s fraught relationship with locals by highlighting Shell’s social investments. While King Okpabi mourns his mangrove’s rotting cassava, the spokesperson tells me about a start-up Shell funds that drives portable machinery out to cassava farmers. While Esther Kattey tells of the horrors of oil-town midwifery, they point me to the company’s subsidised maternity hospital 500km south of her town. Their response is the long-suffering sigh of a stoic parent with an undeserving and ungrateful child: “Despite the security challenges we face, Shell Companies in Nigeria continue to contribute positively to the communities where we do business… We have financially supported the purchase of vaccines for Nigeria through Covax”.
So, beyond attracting the attention of journalists, do lawsuits even faze fossil fuel companies? One woman who has sat at their table was soured by the apathy she saw: “I don’t think they take [lawsuits] seriously because I think they believe there’s no actual penalty,” says Caroline Dennett, “especially in Africa, because onlookers don’t give a shit.”
Her independent research company, Clout Limited, was contracted by Shell to survey and improve pipeline safety following BP’s catastrophic Gulf of Mexico oil spill in 2010. During the decade she worked there, she saw that attention to “asset integrity”—otherwise known as pipeline maintenance—fluctuated in the Niger Delta, despite ongoing lawsuits. Corner-cutting practices were common, and there was “an active strategy not to hold stock for spare parts” needed for repairs and upgrades. But the inaction that most alarmed her was bigger.
Over 11 years, her company interviewed 20,000 of Shell’s frontline workers and contractors and analysed a million words of open feedback: less than 2 per cent of the testimonies they processed mentioned anything to do with climate change. “That was the indicator to me that none of this is real. All that we’re hearing Shell saying in the public domain, that’s not real at the frontline.”
Apathy, however, is not all-encompassing. “They’re very, very concerned about incidents that can and have historically caused major PR disruptions,” she says. Perhaps this explains why she chose to resign in a public manner in May 2022, publishing an open letter and a video on LinkedIn and blowing up the client relationship that accounted for 60 per cent of her company’s revenue with it.
Litigation can be an excellent catalyst for press interest, investment jitters and political momentum. But at the job it is designed for—enforcing rules—it is by and large a flaccid and appeasing tool. To understand why, we must look at the structures in which it operates. “Your cases will only ever be as strong as the laws in which you bring them,” says Sam Cossar, a programme coordinator at Friends of the Earth International. In 2021 Cossar’s Dutch branch, Milieudefensie, won a landmark case against Shell that saw the company ordered to reduce its global emissions by 45 per cent by 2030, compared to 2019 levels. (Shell is appealing the ruling and has shown little evidence that it is complying with it in the meantime.)
Why did both Okpabi and Dooh decide to pursue their cases in Shell’s western headquarters rather than their native Nigeria? “They’re very sceptical about how long the claim would take to go through the courts in Nigeria,” says Matthew Renshaw, lead lawyer on the case at Leigh Day. “They feel that bringing the case here gives them a chance of getting justice in a reasonable period of time.” As it was, each trial began with years of appeals as Shell sank millions into challenging the Netherlands’ and UK’s rights to adjudicate activities beyond their borders.
“We see territorial challenges like this all the time,” says Akhona Mehlo, legal counsel and corporate accountability specialist at Greenpeace International; “that’s basically companies playing ping pong.” Mehlo says Shell’s aim is to “throw out litigation completely”, and that it is “in a polluting company’s -interests -to -prolong and delay action”. The issue is that companies can continue doing whatever it is they are doing for as long as a lawsuit continues.
Mehlo lists layers of ambiguities that pepper international climate law which corporations have drawn on to challenge and push back litigation. The risk is that legal loopholes and appeals can serve as timewasters for firms that (in Dennett’s words) “want to keep drilling the earth for as long as possible” and have no plans to phase out fossil fuels. The patchy nature of these laws means it’s in corporate interests to ask for forgiveness rather than permission. Act now, pay later: you’ll have extracted more than enough oil in the meantime to cover your costs from court.
It’s in corporate interests to ask for forgiveness rather than permission
“We’re working against time,” Mehlo warns. “We are already late in terms of containing temperature rises below 1.5 degrees. To prolong drastic change any further will accelerate us over the tipping points from which it will be really hard to return. The sooner we can attack companies head-on, rather than waiting for policy and litigation to catch up, the better.”
That does not mean the pay-outs from such cases are redundant for the people who wait decades to receive them. In December, the Goi trial in The Hague reached a settlement and Shell agreed to pay €15m to the plaintiffs. Eric Dooh Junior plans to reinvest his share in the Goi community, but it is not just destitute—it has been displaced, evacuated on government orders due to unliveable levels of oil pollution. Some damage can never be undone. And while Leigh Day lawyers invest countless hours to secure compensation for the people of Ogale, their king knows that true justice does not have a price. Goi is gone, and Okpabi watches his own land fading with a heavy heart. “Our way of life is gone forever. They can never bring us back to what we were.”
Along with the problems with “climate justice”, here too lies the promise: precedent has power. Victory may not deliver real change for plaintiffs, but it improves the legal playing field for future cases. “It’s not just about getting compensation,” says Cossar, “it’s about stopping these things from happening in the future.” Climate cases worldwide have more than doubled since 2015, with approximately a quarter of the 2,000 in total being filed after 2020. The Hague’s decision to platform Nigerian plaintiffs paved the way for the UK Supreme Court’s decision to do the same.
Laws are also being written that could tip the balance. Negotiations have been under way since 2014 to devise a “UN Binding Treaty”, which would create a set of legally binding extraterritorial obligations for multinational companies, with a contract of mandatory enforcement for all member states. This would mean that any company domiciled in a UN member state—like Shell—must ensure that all activities under its control comply with international human rights law, including those of a transnational character—thereby putting a stop to drawn-out appeal wars debating the country of jurisdiction. Devising such a treaty is a hugely complex process that could take a decade or more, but it promises a future in which climate justice has a far more playable hand.
Many climate justice organisations are focused on reforming the legal terrain. Environmental law charity ClientEarth, for example, has sued BP, Total and KLM for alleged “greenwashing”, but is petitioning the European parliament to introduce a wholesale ban on fossil fuel advertising so they never have to do so again. The European Commission is pushing a directive for member states to introduce national “due diligence” rules that make corporate sustainability a legal requirement—something lawmakers in France, Germany and Switzerland have moved to put onto paper. As the window for meeting the goals of the Paris agreement rapidly narrows, those due to be held accountable may be starting to realise we do not have time to be fighting these battles. Climate law must work as a deterrent.
The legal playing field is changing, but not fast enough. While negotiations unfurl in Geneva and Brussels, fossil fuel companies are literally laying the groundwork to repeat history. Across the protected lands of Murchison Falls in Uganda, and then across the breadth of Tanzania, the French energy company Total is laying 1,443km of pipes and pursuing plans to extract some 230,000 barrels of oil a day by early 2025. Friends of the Earth filed a legal challenge in France and were hoping to set the first precedent for a new 2017 “duty of vigilance” law that could theoretically halt projects deemed harmful to the environment, human rights or health. Total challenged the place of jurisdiction, and while it failed to have the case thrown out, it succeeded in securing a delay. In the three years between the claim and the trial, tens of thousands of people were expropriated to clear a path for a pipeline.
On 28th February, a French court dismissed the lawsuit against Total on a procedural technicality. The underlying merits of the case—as well as the ability of France’s new law to mandate real change—remain untested.
Perhaps it is not too late for the law to prevent massive ecological destruction in Uganda and Tanzania. But for King Okpabi—still only at the beginning of his legal journey—it is. The trial against Shell is expected to take place next year. In the meantime, Ogale is changing. The shadow of the lost village of Goi looms heavily around the riverbend. In a nine-minute monologue, the ruler reminisces to me about childhood harvests spent living in the mangroves for months on end. “We drank our water from the stream, we got our protein from its fish, we made our meals from the bush meat, we fomented our fufu—our sweet nutritious delicacies—from the cassava plants.”
As the water of Ogale runs black with crude, more has been lost than the fish and the wildlife and the cassava and its fufu. The smell of oil hangs off the vegetation. Lives have slipped beneath the river’s viscous surface. And the stories that define the people of Ogale, the stories that take Okpabi adrift on a sea of memories, have been forever changed.
“I have five boys and a girl,” he says. “What story will they tell?”
