NETHERLANDS Trends and Developments Contributed by: Davine Roessingh, Sebastian Hinse and Tom van der Rijt, De Brauw Blackstone Westbroek
planning, and energy security over the next several decades. The selection of transition pathways and determination of reduction percentages therefore also does not entail a similar exercise for the courts as, for example, the estimation of damages or assessing causality. Instead, courts would be asked to select the norm itself. When a court or regulator selects a single scenario as the benchmark against which a company’s obligations are assessed, it imposes on that company a particular vision of the future energy market – a vision that may or may not correspond to how the actual transition unfolds. A company ordered to cease exploration of new fields on the basis of one scenario – while oper - ating in a global market shaped by competitors and consumers whose jurisdictions have adopted different pathways and/or policies allowing for exploration of new fields – is not simply being made to internalise an externality, it is being compelled to act as though a specific macro-economic reality already exists, although it does not yet, and may never, exist in the form assumed by the model. The practical result can be the opposite of the intended regulatory effect. If the ordered company divests or exits and a less-regulat - ed competitor fills the supply gap, global emissions do not fall. The reduction is displaced, not achieved. Moreover, if different companies operating in the same market are subject to different judicial orders based on different models – whether across jurisdictions or even within the same jurisdiction in sequenced proceedings – the resulting patchwork of obligations has no coher - ent relationship to any plausible market reality and may generate competitive distortions that risk under - mining, rather than supporting, an orderly transition. While parliaments and regulators can weigh the full range of competing scenarios, conduct economy- wide impact assessments, consult affected parties, and revise their approach as science, technology and geopolitics evolve, a court is unlikely to perform the same assessment and cannot revisit its decisions should reality require this after the fact.
With the wave of Dutch climate cases under way, it is worth considering whether NGOs, through these strategic lawsuits, are supporting the shaping of effec - tive and enduring climate policies, or whether they are only targeting individual companies with purported obligations that, even if awarded, would be too rigid to survive real-world market dynamics. Conclusion and Outlook The Dutch climate landscape in 2026 confirms the central proposition of this contribution: government policy under pressure, corporate calibration including regulatory arbitrage, and NGO-led litigation are not three parallel trends, but interlocking dynamics. Looking ahead, we expect these climate cases to be approached by NGOs in such a way that they will attempt piece by piece to shape the boundaries of what corporates can and cannot do from a climate change mitigation perspective. We expect that at the same time, the companies they target will increasingly focus on adaptation and climate risk management. Adaptation – adjusting business activities to mini - mise the costs associated with the expected level of global warming – requires reliable information on a company’s climate risk exposure. This information is currently lacking at scale, leading to a risk of mispric - ing of climate risk and under-investment in adaptation strategies. As physical climate risks materialise with greater frequency and severity, demand for this infor - mation will grow. We moreover expect that companies in, for example, the insurance sector, will explore the ways in which the financial impacts of extreme weather events caused by climate change can be recovered from those con - tributing to climate change. This will likely cause a wave of areas of science, such as attribution science, to support such cases. In turn, such after-the-fact cases reallocating the costs of climate change and even the mere prospect thereof, may go hand in hand with mitigation measures which will, in anticipation of such lawsuit, seek to decrease liability risk.
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