On May 21, three climate nonprofits and eight individuals filed a criminal complaint in Paris, France against the board, CEO, and major shareholders of French oil company TotalEnergies. The complaint claims that the company’s leaders are engaging in criminal activity for their “their contribution to climate change and its fatal impact on human and non-human lives.” However, despite coverage to the contrary, no action has been taken by a prosecutor and formal criminal charges are unlikely.
As concerns rise over the impacts of climate change, activists have increasingly utilized the legal system in an attempt to force companies and governments to take action. Most of the action has been in the civil courts, where the penalty is primarily financial. The only notable victory in this area is a 2021 ruling by a Dutch court that ordered Royal Dutch Shell plc to reduce carbon emissions 45% by 2030. Six months later, the company announced they were relocating their headquarters from The Netherlands to London, and renaming the company Shell plc. In April 2024, a Dutch court heard arguments on the appeal of the 2021 order.
A series of cases against governments for failure to act under the Paris Agreement, a legally binding international treaty that requires signing countries to achieve a reduction of greenhouse gas emissions to net zero by 2050, has found success. The United Kingdom’s High Court held in May that the government’s climate action plan was unlawful. However, the ruling is based on the lack of scientific evidence that the plan will work, a technical requirement under UK law, not on the merits of the plan.
The European Court of Human Rights, a court that was created to interpret and enforce the European Convention on Human Rights, found that Switzerland violated the rights of the plaintiffs by failing to take sufficient legislative action to mitigate the effects of climate change, as required under the Paris Agreement. The court established protections against the effects of climate change as a human right, under the Convention. However, the opinion was limited in scope to the Swiss government and only imposed a financial penalty to cover legal fees. The Court deferred any further encroachment to the Council of Europe, not to be confused with the European Union.
In May, the International Tribunal for the Law of the Sea, the court created to interpret and enforce the United Nations Convention on the Law of the Sea, issued an advisory opinion that found signing states were obligated to reduce their GHG emissions to protect the marine environment. The opinion could provide an important preview for how the International Court of Justice may rule on its pending advisory opinion on the Obligations of States in respect of Climate Change.
While these cases have been on the civil side of the court system, new legal theory is emerging where there is an attempt to attach a criminal penalty for the impacts of climate change. As is common in the development of new areas of law, the exact terminology is still unsettled, although most are using the term ecocide.
In 2023, the European Law Institute, a legal think tank funded by the European Commission, defined ecocide as specific actions “committed with intent, which may cause, or substantially contribute to causing, severe and longterm damage or severe and irreparable or irreversible damage to an ecosystem or ecosystems in the natural environment.” The filers of the criminal complaint opted for the term globocide, which is tied to the atomic bomb.
The criminal complaint against TotalEnergies was filed by climate change activist NGOs Bloom, Santé Planétaire, and Nuestro Futuro. The complaint is against TotalEnergies CEO Patrick Pouyanné, the members of the Board of Directors, and the main shareholders, including BlackRock
BlackRock
The complaint stems from a shareholder vote at the 2023 Annual General Meeting, in which 70% of the shareholders rejected a proposal for the company to align its emissions with the Paris Agreement. In the view of the complainants, those involved in that decision are criminal liable for “deliberately endangering the lives of others, manslaughter, neglecting to deal with a disaster, and damaging biodiversity.”
In the French criminal justice system, once a complaint is filed, the prosecutor has three months to decide whether to open a judicial investigation. Unlike U.S. Courts that use a common law system in which the prosecutor leads the investigation and the judge only hears evidence presented in court, the French system uses an inquisitorial system where an investigating judge takes an active role in the gathering of evidence and the recommendation to a trial court. As a result, if the prosecutor does not choose to seek criminal charges, the complainants may then go directly to the judge.
In other words, the complainants have done nothing more than file a complaint with the prosecutor. The legal equivalent of calling the police. The prosecutor and the investigating judge will decide as to whether there is a reason to initiate a criminal investigation. If they decide to investigate and find evidence of a crime, only then will they seek criminal charges and send the case to a trial court. In my legal opinion, that is an unlikely scenario. This complaint will most likely die quietly in three months.
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