ING’s Answer in the Milieudefensie Climate Case Is a Direct Challenge to the Legal Theory Behind Financed Emissions Claims

In perhaps one of the most important climate cases that is unfolding in 2026, we now have ING's statement of defence in Milieudefensie v ING. In this climate case against ING, rather than targeting a company for its own emissions, the claim focuses on what banks enable through their lending and investment portfolios (financed emissions). The core idea is that financial institutions can be required, as a matter of civil liability, to align their financing activities with climate goals. ING’s statement of defence engages that idea head-on. It does not simply argue that its policies are sufficient. It questions whether the legal theory behind the claim can stand at all.

(Translations in this blog are done by Climate Court and are not official legal translations)

ING’s defence is not written as a narrow defence of one bank’s existing climate policies. It is framed as a much more fundamental objection to the legal architecture of Milieudefensie’s case. The filing accepts the seriousness of climate change at the outset, but then argues that the lawsuit fails because it tries to turn one highly specific view of corporate climate conduct into a judicially enforceable set of general legal duties, despite the absence of any such duties in written law and despite what ING presents as contrary choices already made by European and Dutch lawmakers.

ING is careful to say that the case is not, in its view, about whether its climate approach is morally better or worse than Milieudefensie’s preferred model. It says the real question is whether Milieudefensie’s proposed rules are in fact existing “unwritten legal obligations” [“ongeschreven rechtsplichten”], meaning unwritten legal obligations that can already be recognized and enforced by a court. ING’s answer is built around a three-part structure: those alleged duties conflict with the legislative framework, are not supported by consensus, and would not effectively reduce real-world emissions. That triad runs through the entire pleading and gives the document its internal discipline.

A defence aimed at the level of legal method

The core of the filing is that ING treats Milieudefensie’s claims as an attempt to create general rules of law through private litigation. It says the case is not about filling a gap in an individual fact pattern, but about asking the court to impose a detailed, long-term policy framework on a bank and, by implication, on other enterprises as well. ING characterizes the claim as an effort to establish “general unwritten rules” [“algemene ongeschreven regels”] that would govern how companies and banks must shape their climate policies for the next twenty-four years. That is a very deliberate characterization, because it allows ING to move the dispute away from questions of corporate responsibility in the abstract and into a debate about institutional competence, separation of functions, and the limits of unwritten law.

From there, ING argues that unwritten legal norms can only exist if they are compatible with the statutory system, sufficiently knowable, and effective and proportionate (ING Statement of Defence, Chapter 4). In other words, the bank is saying that the legal route chosen by the claimant is legally defective because the asserted duties do not satisfy the threshold conditions for recognition as general unwritten law. The filing also insists that these limits cannot be avoided by recasting the same demands under Article 6:162 BW or by invoking the doctrine of dangerous situations (ING Statement of Defence, Chapter 4). That is an important point in the pleading. ING is telling the court that whatever doctrinal doorway Milieudefensie uses, the same basic objections remain.

The first major plank: lawmakers already chose a different model

The most developed part of the answer is the argument that Milieudefensie’s theory collides with choices already made in EU and Dutch climate law. ING’s position is that the Paris Agreement leaves states to determine how to pursue climate goals, and that the EU and the Netherlands have in fact done so through an extensive body of legislation and policy. In ING’s telling, that framework does not impose individualized absolute reduction duties on companies or banks. Instead, it relies on a mix of sectoral regulation, market mechanisms, transparency rules, due diligence in defined areas, and prudential risk management (ING Statement of Defence, Chapter 5).

ING repeatedly contrasts what it says lawmakers chose with what Milieudefensie asks the court to do. The bank says the Green Deal aims at reducing “real, physical emissions” [“werkelijke, fysieke, uitstoot”] in the real economy and does not require individual companies to meet fixed Scope 1, 2, and 3 reduction obligations (ING Statement of Defence, Chapter 5). It then argues that Milieudefensie is effectively trying to reintroduce individualized obligations through the back door, including by requiring banks to use financing relationships to force customers into stricter conduct than the governing regulatory system itself requires. ING’s point is that this would not supplement the legislative framework but frustrate it.

The filing is especially forceful on the position of banks. ING says EU lawmakers have explicitly recognized that banks are meant to support the transition by facilitating financing while remaining solid and capable of managing risk (ING Statement of Defence, Chapter 5). A court-imposed duty to reduce the emissions allocated to a bank, it argues, would conflict with that role because it would pressure banks to avoid or terminate financing in circumstances where financing is actually needed for transition investments. It uses the example of financing a heat pump factory, where ING argues that this financing decision can increase a bank’s reported emissions while still helping reduce real-world emissions.

The second plank: no consensus, no evident legal duty

ING’s second major move is to deny that there is any consensus supporting Milieudefensie’s formulation of legal obligation. This is more than a factual disagreement. It goes directly to the recognizability of the alleged norm. The bank argues that companies and banks across the EU and beyond formulate their climate strategies in different ways, that voluntary initiatives do not prescribe one single model, and that climate scenarios and transition pathways are not designed as binding conduct codes for individual firms (ING Statement of Defence, Chapter 6). On that basis, it says Milieudefensie cannot show that the alleged duties are sufficiently “knowable” or “evident” [“kenbaar”] to qualify as enforceable unwritten law.

This part of the filing is also sharpened by ING’s treatment of the pleadings themselves. It says Milieudefensie has formulated a “web of claims” [“web van eisen”] composed of layered primary, subsidiary, and alternative claims, which itself shows the absence of one clear, evident norm (according to ING) (ING Statement of Defence, Chapter 6). ING is arguing not only that the outside world lacks consensus, but that the internal structure of Milieudefensie’s own case undercuts the idea that there is one settled legal obligation waiting to be declared.

The centrepiece of the defence: “paper decarbonisation”

This is where ING tries to redefine the practical stakes of financed-emissions litigation. The bank distinguishes between “real emissions” and “paper emissions” [“werkelijke uitstoot” / “papieren emissies”], explaining that almost all of the emissions it reports are allocated emissions reflecting clients’ activities, not emissions produced by ING itself (ING Statement of Defence, Chapter 7). On that logic, a bank can make its reported emissions look better simply by shedding loans or relationships, even though nothing changes in the atmosphere.

ING develops that into a full legal and policy argument. It says that if banks are forced to reduce allocated emissions as an end in itself, they may stop financing high-emitting sectors or properties not because those sectors cannot transition, but because carrying them makes the bank’s reported numbers worse (ING Statement of Defence, Chapter 7). The filing repeatedly says that this does not guarantee any decrease in real-world emissions and may instead push clients toward other financiers, including less regulated ones. That is why the bank says the relief sought would be ineffective and potentially counterproductive.

In other words, ING says that exclusion from finance does not itself reduce emissions; it simply means the relevant emissions are no longer allocated to the bank itself. The bank then argues that any indirect causal effect is speculative and unsupported, while the direct effect is simply the disappearance of those emissions from the bank’s books. On ING’s framing, that is not decarbonisation at all. It is accounting improvement without physical mitigation (ING Statement of Defence, Chapter 7).

The banking-law overlay is not incidental

Another strong feature of the pleading is its insistence that banking law is not a side issue. ING argues that Milieudefensie’s case treats the bank as if it were just another corporate emitter, when in fact a bank sits inside a dense prudential framework and serves a systemic role. The filing says the requested measures would affect portfolio allocation, lending flexibility, and customer relationships over a twenty-four year period, while ignoring the constraints of prudential supervision and the need for banks to manage risk dynamically (ING Statement of Defence, Chapter 8). The answer therefore casts the claim not only as climate litigation, but as a proposed judicial intervention into the basic conditions under which a supervised bank operates.

Thus, ING present the dispute as one about competing public interests, not just competing climate strategies. Throughout the early chapters, the filing insists that lawmakers have already balanced climate mitigation against energy security, affordability, financial stability, competitiveness, and other social interests (ING Statement of Defence, Chapter 5). The bank’s position is that Milieudefensie’s model would displace that balance with a single rigid logic oriented around emissions reduction targets and exclusion criteria. Even readers who disagree with ING’s conclusion will have to reckon with how systematically the answer tries to embed the case in the architecture of EU financial regulation rather than in corporate climate commitments alone.

The Dutch legislative record is used as affirmative evidence against the claim

ING also uses Dutch policy choices as affirmative evidence that the legal duties asserted here do not exist. The answer points to the rejection of proposals for binding individual corporate reduction obligations and to the finance minister’s later conclusion that additional national climate legislation for the financial sector was not desirable on top of European rules (ING Statement of Defence, Chapter 9). The filing quotes the minister as saying the examined measures were not effective or efficient tools for increasing the financial sector’s contribution to the transition, in part because financial institutions could simply “make their balance sheet more sustainable” [“verduurzamen”] by selling emissions-intensive assets rather than helping decarbonize the real economy (ING Statement of Defence, Chapter 9). That is one of the most revealing passages in the whole document, because it shows ING grounding its “paper decarbonisation” critique not only in private initiatives and expert reasoning, but in the state’s own assessment of possible financial-sector regulation.

The filing also stresses that Dutch lawmakers rejected direct, binding reduction duties for individual companies and reaffirmed the importance of a European level playing field (ING Statement of Defence, Chapter 9). That is plainly designed to answer any suggestion that the court can identify a national trajectory toward the sort of obligations Milieudefensie seeks. ING is saying the opposite: when the issue was considered politically, the legislature chose not to go there.

Why this answer matters

Even before any judgment, ING’s pleading matters because it offers one of the clearest legal blueprints yet for resisting financed-emissions claims against banks. It does not merely argue that ING is doing enough. It argues that the wrong legal object is being targeted, the wrong causal chain is being assumed, and the wrong institution is being asked to set transition policy.

What makes the filing especially important is that it identifies the pressure point future bank climate cases will have to confront. It is not enough, on ING’s account, to show that banks finance carbon-intensive activity or report large financed emissions. The harder question is whether a court can translate those facts into a coherent legal duty without colliding with the structure of financial regulation, the design of climate legislation, and the possibility that the resulting order improves disclosed numbers while leaving underlying emissions untouched. That is the question running through this entire answer, and it is why the document is so much more than a routine statement of defence.