Home Environment ‘Judges did not rule on core elements of TotalEnergies case’

‘Judges did not rule on core elements of TotalEnergies case’

After more than three years and a lengthy procedural battle, the interim relief judges dismissed the case on what climate activists termed “controversial procedural grounds”

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Climate activists protest against oil companies at the COP27 conference centre in Sharm el-Sheik, Egypt, in November 2022. Photo: Gilbert Mwijuke
Climate activists protest against oil companies at the COP27 conference centre in Sharm el-Sheik, Egypt, in November 2022. Photo: Gilbert Mwijuke

By Gilbert Mwijuke

TotalEnergies has something to celebrate. On Tuesday, a Paris civil court dismissed a lawsuit by Friends of the Earth France, Survie and four Ugandan civil society organisations (AFIEGO, CRED, NAPE/Friends of the Earth Uganda and NAVODA) against French oil giant TotalEnergies regarding its oil mega-projects (Tilenga and Eacop) in Uganda and Tanzania.

Touted to be the world’s longest electrically heated oil pipeline, the planned $5 billion Eacop will pass through forest and wildlife reserves before meandering alongside Lake Victoria, the world’s second-largest freshwater lake and source of River Nile, the longest river on Earth.  

After more than three years and a lengthy procedural battle, the interim relief judges dismissed the case on what climate activists termed “controversial procedural grounds”.

“The plaintiffs strongly deplore this decision and are consulting with affected communities to determine the appropriate next steps. The verdict was long awaited by civil society, as it was the very first case based on the French law on the duty of vigilance of transnational corporations,” the plaintiffs said in a joint statement soon after the ruling.

They went on: “But once again, the judges did not rule on the core elements of the case, namely Total’s serious failures to meet its duty of vigilance obligations to identify and properly prevent the risks of human rights violations and environmental damage associated with its Tilenga and EACOP projects in Uganda and Tanzania.”

Current claims substantially different

The Paris court – ruling in summary proceedings – considered that the CSOs’ legal action was inadmissible because their current claims were substantially different from the claims made in the initial formal notice sent to the defendant.

The CSOs contested the assertion that they have substantially modified their claims, stating that they had only clarified their requests and arguments while providing more than 200 documents.

They argued that the amount of evidence provided was proportionate to the issues at stake and necessary to update their complaint due to the prolonged procedural battle initiated by TotalEnergies in 2019.

In the wake of a worsening climate crisis and environmental degradation in Uganda and Tanzania, the six CSOs had chosen to bring the case before the interim relief judge (“juge des référés”) in 2019 in the hopes of obtaining a swift decision. However, a lengthy procedural battle ensued, ultimately leading to the involvement of the French Supreme Court (i.e., France’s highest court for civil matters).

The judgment also stated that the CSOs’ claims exceeded the interim relief judge’s competence and should have been “be examined in depth” by a civil judge following a regular procedure on the merits.

“However,” the CSOs said in the statement, “this decision does not rule in favour of TotalEnergies either, as the Court did not rule on the core issue, which is whether or not the company has fulfilled its duty of vigilance.”

The six Ugandan and French CSOs claim to have carried out several field investigations since 2019 and “compiled overwhelming evidences and testimonies against the oil major.”

According to their findings, there was “partial or total eviction of more than 100,000 people, deprived of their livelihoods even before receiving any compensation; more than 130 drillings planned in a protected natural area; and construction of a heated pipeline through seismic zones and fragile ecosystems; in a context of harassment of environmental and human rights defenders.”

Missed opportunity 

“This decision is a huge disappointment for the civil society organisations and affected communities in Uganda who had placed their hopes in the French justice system. Human rights violations and environmental damage are continuing and worsening, and we will keep mobilizing harder than ever in and out of court to put an end to them and hold Total liable for the consequences of its activities,” said Dickens Kamugisha, director of Africa Institute for Energy Governance (AFIEGO).

Juliette Renaud, senior campaigner at Friends of the Earth France, said: “We strongly deplore this decision. Once again, the French courts have missed an opportunity to put an end to the multiple violations taking place in Uganda and Tanzania.

“It is essential that this summary judgment procedure, which allows for faster judgments, be effective in order to achieve the central objective of this law: to prevent human rights violations and environmental damage before they occur. Judicial delays are piling up, and every passing month is wasted time in putting an end to the serious human rights violations caused by Total’s mega-oil project in Uganda and Tanzania, and preventing an environmental and climate disaster from occurring.”

Pauline Tétillon, co-chair of Survie criticised the court’s decision, saying that the judges were postponing an issue that needed to be urgently addressed in a fast-changing climate.

“While Total’s devastating oil mega-project in Uganda and Tanzania is being criticized from all sides, from journalists to academics, from the European Parliament to UN rapporteurs, and while civil society mobilization has taken on an international dimension, the judges are still postponing a decision on the heart of the matter: the consequences of this project on the population, the environment and the climate.

TotalEnergies asked to bring its vigilance plan

“We have been denouncing them for more than three years; the disaster must stop as soon as possible, while we are only a few weeks away from the first drillings in the heart of the protected natural park of Murchison Falls,” she said.

In their summons, the CSOs asked the court to order TotalEnergies to bring its vigilance plan into compliance with the law by including all the risks of serious harms associated with the Tilenga and Eacop projects, as well as the appropriate vigilance measures to be developed to address these risks.

They also wanted TotalEnergies to effectively implement these vigilance measures, including emergency measures such as immediate payment of compensation and food support for communities deprived of their livelihoods.

As a precautionary measure, they asked TotalEnergies to suspend work on the Tilenga and EACOP projects until the associated risks of serious harm have been properly identified and measures to stop human rights violations and prevent environmental and climate disaster have been developed and effectively implemented.

While citizen mobilisation against Total’s projects has been growing in recent years, this decision comes shortly after the first drillings have begun in Murchison Falls National Park, Uganda’s oldest and largest conservation area.

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