Notre Affaire à Tous and Others v. Total

Summary:

The French NGOs Notre Affaire à Tous, Sherpa, Zea, and Les Eco Maires along with more than a dozen French local governments have taken the first step in a legal proceeding against French oil company and carbon major Total. The initiative seeks a court order forcing Total to issue a corporate strategy that 1) identifies the risks resulting from GHG emissions resulting from the use of goods and services that Total produces, 2) identifies the risks of serious climate-related harms as outlined in the 2018 IPCC special report, and 3) undertakes action to ensure the company’s activities align with a trajectory compatible with the climate goals of the Paris Agreement. The plaintiffs argue these obligations stem from domestic law Article L. 225-102-4.-I of the Commercial Code (Loi 27 Mars 2017 sur le devoir de vigilance des sociétés mères et des entreprises donneuses d'ordre). This law requires a company to produce a "plan of vigilance" that identifies and seeks to mitigate risks to human rights, fundamental freedoms, the environment, and public health that could result directly or indirectly from the operations of the company and of the companies it controls.

On June 18th, 2019, following a formal meeting with Total, the plaintiffs announced the launch of a legal proceeding and issued a letter of formal notice (mise en demeure) to Total. Plaintiffs asserted that Total had 3 months to include adequate GHG emissions reductions targets in its latest “plan de vigilance” before they filed a lawsuit seeking a court order to force the company to comply with the law and the goals of the Paris Climate Agreement.

On January 28, 2020, plaintiffs filed a complaint asking a Nanterre court to order Total to recognize the risks generated by its business activities and make it conduct consistent with the goal of limiting global warming to 1.5°C. According to the plaintiffs, their complaint relies on the Law on the Duty of Vigilance, as well as the duty of environmental vigilance arising out of the the French Environmental Charter. The plaintiffs allege that Total didn't provide enough detailed information in its vigilance plan for reducing its emissions and the company is still not in line with international climate agreements.

Total did not respond to the merits and requested that the case be brought before the commercial court. On February 11, 2021, the pre-trial judge rejected Total's objection of incompetence and confirmed the jurisdiction of the judicial court. The judge considers that the NGOs have, as “non-traders”, a right of option, which they exercise at their convenience, between the judicial court, which they have validly seized, and the commercial court. On November 18, 2021, the Versailles Court of Appeal confirmed the jurisdiction of the Nanterre judicial court to settle the dispute. The decision is based on the exclusive jurisdiction of certain courts of law in matters of cessation and compensation for ecological damage.

On July 21, 2022, the City of New York intervened in support of the Plaintiffs in the current litigation through an intervention volontaire accessoire. The City of New York has based its intervention on the significant interest it has in engaging – locally and globally – in efforts to mitigate climate change, also because of the severe damages and risks this phenomenon causes to the City..

At Issue: Whether a French oil company violated the French Commercial Code by failing to adequately report climate risks associated with its activities and take action to mitigate those risks in line with the goals of the Paris Agreement