Friends of the Earth et al. v. Total

Summary:

Six nongovernmental organizations have sued energy company Total over an oil project in Uganda and Tanzania. The plaintiffs allege that Total failed to adequately assess the project's threats to human rights and the environment.

Under 2017 French Duty of Vigilance Law, French companies must identify and prevent, in a due diligence plan (plan de vigilance), serious violations of human rights and to the environment that could occur as a result of their business practices, including at the level of their foreign subsidiaries and subcontractors. In June 2019, Friends of the Earth France, Survie, AFIEGO, CRED, NAPE/Friends of the Earth Uganda and NAVODA sent Total a formal demand to revise its vigilance plan for the Tilenga Project, along with a report detailing alleged inadequacies in the vigilance plan. These associations claimed that Total did not take into account the social and environmental impacts of the oil project located on the shores of Lake Albert, in western Uganda, and the 1,445 km pipeline that will export fossil fuel by crossing part of the country and then Tanzania to reach the port of Tanga, on the Indian Ocean. Some 100,000 people are to be displaced and a third of the 400 boreholes are to be drilled in the Murchinson Falls National Park, which is home to a significant number of endangered species. The claimants sought an order to take urgent action to prevent the manifestly unlawful disturbance resulting the company’s failure to comply with its due diligence obligations. In the alternative, the claimants sought an order, subject to fine, to establish, publish and implement a set of measures in its due diligence plan to prevent (i) serious violations of human rights and fundamental freedoms, human health and safety and (ii) serious environmental damage. Although the claimants' report focuses on human rights and conventional pollution, it also argues that Total's vigilance plan does not properly account for the project's potential life cycle greenhouse gas emissions.

Total rejected the allegations and argued that the court in which the case was filed was not competent. On January 30, 2020, the Nanterre Judicial Court ruled that it was not competent to hear the case and that it must be brought before a commercial court. On December 10th, 2020, the Court of Appeal of Versailles decided that the case should be brought before the Nanterre Commercial Court because the due diligence plan should be qualified as an “act of management of a commercial company.”

On December 15th, 2021, the Court of Cassation overturned the judgment of the Versailles Court of Appeal and recognized the competence of the judicial court to judge the complaint of the associations. The case will be decided by the Nanterre Judicial Court, and not by the Commercial Court as Total had claimed. The Court of Cassation recalled that (i) companies’ duty of vigilance does not constitute a commercial act and (ii) a natural person plaintiff can bring a claim against a legal entity before the judicial court or the commercial court. While this decision is favorable for the claimant, more than 100 000 people are still totally or partially deprived of their land and their means of subsistence in Uganda and Tanzania, according to Friends of the Earth France.

At Issue: NGOs sued oil company alleging inadequate environmental assessment of proposed oil project.