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French court dismisses case against TotalEnergies

March 1, 2023

A French court has rejected a demand to suspend a controversial oil and gas project largely owned by energy giant TotalEnergies in East Africa. But a lesson could be drawn from the verdict.

Signs advertising TotalEnergies and Tullow Oil
Image: Jack Losh

A French court decision has declared an appeal by several nongovernmental organizations (NGOs) against a controversial oil and gas project in East Africa inadmissible. Experts say the decision could set a bad precedent,  or a provide a valuable lesson in how to tighten international environmental laws.

Six French and African civil rights and environmental groups had asked a Paris court to suspend the twin project largely owned by TotalEnergies.

The case was based on the so-called "law on the duty of vigilance" from 2017. The legislation requires France-based parent companies to draw up a "vigilance roadmap" for subsidiaries abroad in order to document and offset their projects' impact on the environment, local populations, and human rights.

But the court ruled the plaintiffs had not filed the required formal notice, and thus declared the case inadmissible. The urgent applications judge also deemed it was not competent in the case.

"When a judgment requires a thorough analysis of a dossier's elements, only the trial judge has the power to decide," the court's statement, obtained by DW, read.

TotalEnergies is the majority shareholder in the so-called Tilenga and EACOP projects.

The Tilenga oilfied includes 400 wells in Uganda, with dozens located in the national reserve Murchison Falls Parks. The buried 1,443 kilometer-long (897 miles) East African Crude Oil Pipeline (EACOP) will cross neighboring Tanzania and link the wells to the Indian Ocean.

Other shareholders comprise the China National Offshore Oil Corporation (CNOOC), the Uganda National Oil Company (UNOC), and the Tanzania Petroleum Development Corporation (TPDC).

Construction works are already underway, with both projects scheduled to become operational in the first half of 2025.

Is TotalEnergies's 'vigilance roadmap' detailed enough?

The plaintiffs had argued that TotalEnergies' vigilance roadmap was not far-reaching enough.

They had estimated more than 100,000 people would be affected by the project, and maintained most of them had not yet been compensated by TotalEnergies.

The rights groups warned that the planned oil and gas exploration would lead to human rights abuses and irreversible environmental damage.

Woemn standing by rows of fish drying in the sun
Lake Albert lies on the border between Uganda and the Democratic Republic of Congo and could be contaminated by TotalEnergies' projectsImage: Lambert Coleman/Hans Lucas

TotalEnergies said it was taking the necessary mitigation measures, and would create tens of thousands of jobs. The company maintained it had compensated 90% of eligible local residents, setting their total number at 18,000.

"TotalEnergies takes note of today's decision by the Paris judicial tribunal that recalls particularly that the company TotalEnergies has formally established a vigilance roadmap, including the five elements required by the law on the duty of vigilance, and which are sufficiently detailed so as to not be regarded as basic," the Paris-based multinational wrote in an email to DW on Tuesday.

Plaintiffs call the court decision 'absurd'

The plaintiffs continue to refute TotalEnergies' arguments. One is Africa Institute for Energy Governance (AFIEGO), a Uganda-based public policy research and advocacy group for clean energy. Others include France's non-profit rights network Friends of the Earth (FoE) and Uganda's non-profit advocacy group Civic Response on Environment and Development (CRED).

Director of AFIEGO Dickens Kamugisha criticized the court's decision."That was a very absurd decision for [the court] to say after three years of people waiting for justice. This case is too complex for summary proceedings. I think the court should have been cognizant that many people, the poor communities, are suffering and they [need] justice," Kamugisha told DW.

Kamugisha feared the case could set a bad precedent. "The reason why we went to France was that we had already filed a number of cases in Uganda. Because of our lack of independence of the judiciary, corruption in our judiciary, many of the cases have never moved. We had hoped the developed world, the developed judiciary would handle these cases very well," he explained.

The group is at Ugandan courts in five different cases to stop various parts of the oil and gas project. It has also brought the matter in front of the East African Court of Justice, a judicial body of the East African Community (EAC). The EAC is a regional integration organization with 7 partner states: Uganda, Tanzania, Kenya, Burundi, Rwanda, the Democratic Republic of Congo and South Sudan.

The trained lawyer Kamugisha is doubtful whether the cases will stand up in Uganda. "The latest verdict affects these cases very, very much. I believe the courts in Uganda are going to say, if you failed in France, how would you think that here in Uganda you could win anything?"

Verdict 'could be milestone towards more climate justice'

But Kamalia Mehtiyeva, a law professor at the Paris-Est Créteil University, said the latest court decision was not necessarily sending a bad signal.

"By the decision which was rendered, you get a negative sort of impression of the way the French justice treats climate activists. But what is important is not to stop at this first impression and to see on what they lost. They lost on a purely technical argument, so they didn't lose," she told DW.

A controversial crude oil pipeline

"There is a lesson which has to be drawn from this decision. They [the court] remind the NGOs that they had to put on notice the company," Mehtiyeva explained, adding that the court also kept underlining that the 2017 law lacked detail.

"This decision is just another milestone in the construction of the legal regime of the protection of environment. It's not a failure," she stated.

The plaintiffs are considering appealing against the Paris verdict.

Could Germany follow suit?

Kathrin Henneberger, a Green member of the Germany's parliament Bundestag, thinks the verdict is first and foremost a call for action.

"It's a sign that we need to readjust our laws across Europe," she told DW.

"Fossil companies such as TotalEnergies should no longer be allowed to construct such megaprojects," said the lawmaker, who travelled to Uganda earlier this year to talk to local residents affected by TotalEnergies' plans.

Henneberger thinks Germany should also strengthen its legislation.

"We were last year discussing a law on how to keep coal plants online, or power up more of them given the decreasing gas supply. One hotly debated aspect was what impact that would have on regions where we mine that coal," she said.

"Germany does not take into account the situation of local inhabitants, for example in north Colombia, where our coal comes from – we need stricter rules." Henneberger added.

Her group has added a paragraph to existing legislation requiring the government to report on the impact of coal mining on local populations.

Edited by: Maren Sass