A New Climate Case on Facilitated Emissions Liability and State-Owned Infrastructure

Stichting Advocates for the Future v. Havenbedrijf Rotterdam N.V.

In a new case against Havenbedrijf Rotterdam (initiated on May 12, 2026), the pre-litigation letter does not start with smokestacks or balance sheets. The Port Authority does not extract fossil fuels or burn them. What it does is organise the space, infrastructure, and contractual framework through which those activities occur at scale. In the words of the notice, “enormous quantities of oil, coal and gas are imported, processed and transshipped” through the port [“Via de haven worden enorme hoeveelheden olie, kolen en gas ingevoerd, verwerkt en doorgevoerd”] (Notice of Default Letter, 12 May 2026, p. 2). The emissions tied to those flows, estimated at roughly 604 MtCO2e each year, sit behind the case.

That starting point leads to a shift in how responsibility is framed. The notice does not accept that the Port Authority’s obligations should be confined to what it emits directly. It focuses instead on what the Port Authority enables. “With its activities, the Port Authority makes the fossil activities in the port area possible” [“Met zijn werkzaamheden maakt het Havenbedrijf de fossiele activiteiten in het havengebied dus mogelijk”] (Notice of Default Letter, 12 May 2026, p. 10). If successful, such a proposition would cut through the usual reliance on emissions accounting. Scope distinctions lose their force if the legal question is one of control rather than attribution. The Port Authority determines who can operate within the port, on what terms, and for how long. It allocates land, enters into long-term agreements, and invests in infrastructure that defines the port’s industrial profile. Those decisions shape the system over decades. Once that is accepted, it becomes harder to treat the Authority as merely adjacent to the emissions it facilitates.

The notice presses this point even further by turning to the Port Authority’s own statements. It cites the acknowledgement that “CO2 is a cause of climate change, with the indirect consequence that various human rights worldwide, including the right to life, come under pressure” [“CO2 is een veroorzaker van klimaatverandering, met als indirect gevolg dat wereldwijd verschillende mensenrechten, waaronder het recht op leven, onder druk komen te staan”] (Notice of Default Letter, 12 May 2026, p. 3). That recognition is used to frame a question that goes to the heart of the case: if the Authority accepts the consequences of the system it supports, what follows for the way it manages that system?

The answer offered in the notice is direct. The absence of a plan to phase out fossil activities, combined with the observation that emissions linked to those activities have “remained unchanged over the past fifteen years” [“is de uitstoot van de fossiele activiteiten in de haven de afgelopen vijftien jaar onveranderd gebleven”] (Notice of Default Letter, 12 May 2026, p. 3), is said to amount to a failure to meet a legal duty of care. The Port Authority’s reported position that such a phase-out plan is “not under consideration” [“niet aan de orde”] (Notice of Default Letter, 12 May 2026, p. 4) only sharpens that claim.

What gives the case its edge, however, is not only the focus on facilitated emissions. It is the way the Port Authority’s ownership and role are used. Havenbedrijf Rotterdam is wholly owned by the Municipality of Rotterdam and the Dutch State. It performs public functions in managing one of Europe’s most significant ports. The notice treats that as more than background. It argues that such an entity is expected to “serve as an example in complying with international norms in the field of climate, environment and human rights” [“een voorbeeldrol vervullen bij het naleven van internationale normen op het gebied van klimaat, milieu en mensenrechten”] (Notice of Default Letter, 12 May 2026, p. 7). It goes further, stating that its obligations “do not or hardly fall short of those that may be expected from public institutions and the State” [“niet of nauwelijks onderdoen aan de inspanningen die van publieke instellingen en de Staat kunnen worden verwacht”] (Notice of Default Letter, 12 May 2026, p. 7). This positioning by Advocates for the Future is very deliberate. It draws the Port Authority into the same legal conversation that has, until now, been directed at states. The reasoning in Urgenda, where the Dutch courts linked climate inaction to violations of fundamental rights, sits in the background. The notice does not attempt to replicate that case. It extends its logic to a different kind of actor, one that sits between the state and the market but exercises real influence over the structure of the energy system.

If responsibility attaches at the level of facilitation, then infrastructure operators become central to the analysis. Ports are an obvious example, but they are not the only one. Airports, pipelines, and logistics hubs all play similar roles in sustaining fossil fuel use.

There is also a more immediate implication. The notice identifies the tools the Port Authority already uses, including land allocation and contractual conditions. It refers, for example, to the requirement that new land use be “CO2-neutral, unless” [“CO2-neutraal, tenzij”] (Notice of Default Letter, 12 May 2026, p. 16). The argument is not that the Authority lacks the means to act, but that it has chosen not to use those means to bring about a structural shift. Incremental measures are treated as insufficient where the underlying system remains unchanged.

Whether a court will accept that reasoning is an open question. It would require a willingness to treat facilitated emissions as legally relevant and to impose obligations that go beyond conventional corporate duties. It would also require a view of state-owned enterprises that reflects their public character as much as their commercial form. Regardless, this case is signifying a new stage of climate litigation where there is less concern with who emits, and more so with who makes emission-intensive systems possible.

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A full case overview, including key documents, procedural developments, and detailed analysis, is available in the Climate Court database, where this matter is tracked alongside other emerging climate litigation.