Notre Affaire à Tous and Others v. Total

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. On July 6, 2023, the pre-trial judge dismissed the preventive lawsuit for procedural reasons after several years of successful litigation on the Civil court's jurisdiction. The Paris first instance court also refused to examine the impact of TotalEnergies' activities on climate change. The judge deems the lack of strict identity between the demands in the formal notice demands and summons as an inadmissibility ground. In addition, the judge believes no plaintiff has standing concerning climate change since it is a worldwide issue. Although it is a classical issue in climate litigation, the pre-trial judge's position clearly contradicts the French Admin Supreme Court finding in climate cases against the State (see paras 4 - 7 on standing). Plaintiffs have appealed the decision; the first hearing took place before the Court of Appeal of Paris on March 5, 2024. On June 18, 2024, The French Court of Appeal reversed the pre-trial decision to dismiss the case and affirmed it has to proceed to trial. First, the Court has not upheld the Tribunal's affirmation that the notice to sue has to put forward the same claims advanced in the summons and that any discrepancies between the two is a cause for inadmissibility. On the contrary, the Court of Appeal has affirmed that the letter sent by the plaintiffs is to be considered as a notice to sue. The Court clarifies that the letter does not have to include all the future claims included in the summons, but that the future claims must have the same object indicated in the notice to sue. Moreover, the notice does not forcefully need to concern the same plan of the summons or of the final demands: if the company has not remedied its non-performance, the claim can still proceed. Furthermore, the Court states that the plaintiffs do not have signed or sent the notice: as the aim of the notice is to comply with its obligations and to remedy its non-fulfillment, it is not necessary, to sue, to have sent also the notice. Second, it states that claims based on environmental harms (articles 1246 of the French civil codes) are not inadmissible, because they do not replicate the claims based on the law on the duty of vigilance (the rule lex specialia generalibus derogant does not apply in this case). Indeed, these two laws have different aims, as the law on the duty of vigilance forces the company to draft a plan, and the environmental harm aims to redress damages and put an end to damaging behaviors. Finally, concerning standing, the court highlights that climate change is a global phenomenon that goes beyond the local interest of the municipality. Therefore, to have standing, a municipality needs to prove a specific interest to sue, that is a specific effect of climate change on the territory of the municipality concerned.