TotalEnergies in court for its Eacop mega-project –

9:30 am, room 2.02 of the Paris court. The hearing had barely begun when Judge Fabrice Vert sighed. The case he will judge this morning is the first of its kind. That seemed to worry him. And for good reason: the duty of care law passed in 2017, as pioneering and symbolic as it was, was on an A4 sheet “.

Its principle seems clear, however: multinationals must implement “effective” a vigilance plan to prevent their subsidiaries or subcontractors from committing rights or environmental violations across the planet. But part of the text was censored by the Constitutional Council and, for others, “The legislator made these ideas not very specific “, the judge regretted. He had the heavy task of interpreting the law. And his landmark judgment will lay the foundations for future case law.

The two lawyers who filed the accusation against TotalEnergies on behalf of six NGOs – including Friends of the Earth and Survival – did not hide their enthusiasm. “You will inaugurate the first decision on a new law. The now famous French law on the duty of care », he was instructed by master Louis Cofflard, the lawyer of Friends of the Earth. In his argument, he recalled Total’s Eacop project in Uganda and Tanzania “is one of the most harmful to the climate”.

Daily extraction of 190 to 220,000 barrels would release 32 million tons of CO2 per year, over 29 years. Biodiversity is not being neglected: 132 boreholes out of 400 will be dug in Murchison Falls National Park in Uganda and more than 2,000 square kilometers of natural habitats are at risk of being affected by the pipeline and its potential leaks. Maître Céline Gagey, representing Survie, insists on his side in the conditions of deprivation of more than 118,000 people who live near the wells or the future pipeline. The testimonies he gives show, among other things, gross violations of property rights.

A map representing the various environmental risks near the pipeline project, produced by two research institutes. © SEI/IGSD

According to the two lawyers, the surveillance plan developed by TotalEnergies suffers from several shortcomings. “The risk mapping does not mention any environmental risks and there is not even an assessment of climate impacts”, directed by Louis Cofflard. TotalEnergies promised on the other hand “fair and prior compensation” expropriated people as well “the absence of land access restrictions”which Céline Gagey certainly argues: “28,000 people have not received compensation, four years after the beginning of the expropriations. On the other hand, the land is no longer usable”. The NGOs are demanding the payment of promised compensation and the suspension of work until TotalEnergies’ plan is properly formulated and implemented.

For their part, the multinational’s lawyers find it difficult to hide their anger at being placed in the dock in this way. It was first asserted “TotalEnergies is not afraid of contradiction”, Maître Antonin Lévy finally condemned the instrumentalization of hearing. He won: “This is not the test of a surveillance plan, we want to make it a test of Total, Uganda, pollution, climate risk…! ». Refusing to consider the project itself, the two lawyers defended their definition of the duty of care, at the antipodes of “maximalist view of NGOs”. “It is not because the law is short that its perimeter is unlimited”Ophelia Claude believed. “Besides, you won’t find any reference to new legal concepts”. According to Antonin Lévy, “Company law is not changed by duty of care law”. Clearly, the new law doesn’t change anything, or nearly so. rest, “It is not up to the judge to take measures intended to prevent extra-territorial damage”, they still defend. However, lawyers say they are ready to intervene with NGOs. “If we are criticized, we are ready to fix the alleged shortcomings”cursed Antonin Lévy.

At the end of the hearing, the judge announced that he would give his decision on February 28. “We hopefully sooner”replied Juliette Renaud, who manages multinationals at Friends of the Earth, “because drilling is imminent and thousands of people are in a critical situation”. For his part, MEP Pierre Larrouturou came out of court annoyed: “Totality laughing at us by showing the legal autonomy of Total Uganda (its 100% subsidiary, editor’s note) but it was actually Patrick Pouyanné, its CEO, who came to sign the contract in Kampala and his payment was still conditional on the success of the project. Finally, Total Uganda’s profits will be transferred to the parent company. So, it is time for it to fulfill its responsibilities vis-à-vis its subsidiary”. The future will tell whether the judge upholds this vision or not.

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