Paris and New York join lawsuit against TotalEnergies over “climate inaction”

In January 2020, five French NGOs (Notre Affaire à Tous, Sherpa, Zéa, Eco Maires, France Nature Environnement) and more than a dozen French local authorities started legal proceedings in France against TotalEnergies for alleged breaches to the duty of vigilance act (Law No. 2017-399 of 27 March 2017) and Article 1252 of the Civil Code (obligation to prevent ecological damage). On 21 September 2022, the cities of Paris and New York, as well as NGO Amnesty International, announced that they joined the initial claimants.

Background 

The case started in June 2019, when the initial claimants issued a letter of formal notice (mise en demeure) to TotalEnergies’ CEO on the basis of the French “duty of vigilance” act, which introduced among others a new Article L. 225-102-4 to the French Commercial Code. This provision requires companies to establish, effectively implement and publish a vigilance plan which: 

“shall include the reasonable vigilance measures to allow for risk identification and for the prevention of severe violations of human rights and fundamental freedoms, serious bodily injury or environmental damage or health risks resulting directly or indirectly from the operations of the company and of the companies it controls (...) as well as from the operations of the subcontractors or suppliers with whom it maintains an established commercial relationship, when such operations derive from this relationship”. Such plan must also include: “1° A mapping that identifies, analyses and ranks risks” and “3° Appropriate actions to mitigate risks or prevent serious violations”.

The initial claimants argued that the vigilance plans successively published by TotalEnergies in 2018 and 2019 did not comply with these requirements. They put the company on notice to publish a new vigilance plan within three months, which should include: (i) an identification of the risk resulting from the greenhouse gas emissions generated by the use of goods and services it produced; (ii) an identification of the risks of serious harm (to the health and safety of people, environment and human rights): and (iii) adapted actions to ensure that the company is on a trajectory compatible with the Paris Agreement.

In September 2019, TotalEnergies answered that it refused to publish a new vigilance plan, considering that its 2019 vigilance plan was established in accordance with the applicable legal requirements.

This led the initial claimants to start proceedings in January 2020, requesting the Nanterre civil court to order TotalEnergies to publish a new vigilance plan in accordance with the abovementioned provision of the French Commercial Code, as well as Article 1252 of the French Civil Code providing for the obligation to prevent ecological damage. (Article 1252 of the French Civil Code provides: “Independent from repairing the ecological damage and having received a request to this effect by a person mentioned in Article 1248, the judge may prescribe reasonable steps to prevent or stop the damage from occurring.”)

According to the claimants, this new vigilance plan should include all risks associated with TotalEnergies’ business activities and measures ensuring that the company reduces its greenhouse gas emissions to comply with the Paris Agreement. The measures asked by the claimants to be ordered by the court include specific targets for greenhouse gas emissions, as this was the case in the successful Dutch litigation led by NGO Milieudefensie against Shell (explained below). 

The claimants require that the obligation to publish a new vigilance plan be sanctioned by a penalty payment (astreinte) of EUR 50,000 per day of non-compliance with the court’s order.

Procedural developments

TotalEnergies did not respond to the main legal arguments in the claim, but requested that the case be brought before the commercial court. In February 2021, the pre-trial judge rejected the company’s objection and confirmed the jurisdiction of the civil court. The judge considered that the NGOs have, as “non-traders”, a right of option, which they exercise at their convenience, between the civil court, which they had validly seized, and the commercial court.

In November 2021, the Versailles Court of Appeal confirmed the jurisdiction of the Nanterre judicial court over the dispute. The decision is based on the exclusive jurisdiction of certain courts of law in matters of cessation and compensation for ecological damage.

The case is now pending before the Nanterre civil court, and a ruling on the merits is unlikely before March 2023 at the earliest.  

Paris and New York to join the lawsuit 

On 21 September 2022, the cities of Paris and New York, as well as NGO Amnesty International, announced that they were joining the lawsuit against TotalEnergies, increasing the number of claimants to sixteen local authorities and six NGOs.

The Mayor of Paris, Anne Hidalgo, explained that the city’s position was that this action was necessary to force a major energy player to respect the Paris Agreement in reducing its greenhouse gas emissions and adopting a strong carbon neutrality trajectory. After stressing the consequences of climate change (such as heatwaves, floods, rising sea levels, droughts, wildfires, etc), she underlined the importance of this collective lawsuit for populations suffering from global warming and for climate justice to prevail.

Precedent 

The claimants aim to rely on the claim made against Shell, in the Netherlands by NGO Milieudefensie, which is to date the most striking precedent of successful climate litigation against a major oil and gas company.

As reported in our previous blog posts (see here and here), the District Court in The Hague ordered Royal Dutch Shell on 26 May 2021 to reduce its global carbon emissions by 45% by 2030 compared with 2019 levels. This covers not only emissions of the Shell group (globally), but also the emissions of its suppliers and its customers. The case was brought by the Dutch arm of Friends of the Earth (Milieudefensie) and over 17,000 citizens, among other claimants.

The Dutch District Court concluded that, while Shell cannot solve the global climate crisis on its own, that does not absolve it of responsibility to curb the emissions it can control and influence. Companies have a human rights obligation to take further action and Shell must bring its emissions and those of its suppliers and customers in line with the Paris Agreement.

Whilst previous climate litigation against companies had focused on obtaining damages for harm caused by past activities, this case was the first time a court has required a company to align its climate strategy (and Scope 3 emissions) with the goals of the Paris Agreement, thereby focusing on curtailing future emissions.

In April 2022, Milieudefensie sent a letter to Shell’s Board of Directors calling for urgent action to comply with the verdict of 26 May 2021 and warning of personal liability risks towards third parties resulting from a failure to act.

In July 2022, Shell appealed against the Dutch court's decision.

In addition, ClientEarth also announced in March 2022 the start of legal proceedings in the UK against Shell’s Board of Directors over mismanagement of climate risk, whereby the NGO seeks to hold directors personally liable for alleged net zero failures and alleges the company’s Board of Directors is acting in breach of its duties under UK company law.