In what is the first legal move of its kind in France, French oil and gas giant TotalEnergies is being investigated for alleged “misleading commercial practices” following a complaint filed by three environmental protection NGOs which argue that the multinational’s claims over its environmental and global warming credentials, including being a “major player” in energy transition, amount to deceptive “greenwashing”.
A preliminary investigation into the complaint, delivered to the economic and financial branch of the public prosecution services in the Paris suburb of Nanterre, has been handed to two inspectors from the economy ministry’s agency for competition, consumption and fraud, the DGCCRF, who Mediapart has learnt are close to completing their probe. The inspectors have powers of police while carrying out their investigations.
If they find convincing evidence to support the complaint, filed by NGOs Wild Legal, Sea Shepherd France and Darwin Climax Coalitions, the prosecution services may decide to hand the case over to a judge-led judicial investigation.
Under French law, a charge of “misleading commercial practices” – which can only be brought by a judge at the end of a judicial investigation – carries a maximum two-year prison sentence and a fine of 300,000 euros for those convicted, and courts also have the power to order that the offending practices cease.
The preliminary investigation, revealed by Mediapart last Thursday, was opened in December 2021, after the first complaint was submitted in October 2020.
It details deceptive commercial practices by TotalEnergies (formally Total), which the prosecution services retained as justifying the opening of an investigation, citing “the gulf that separates the statements and communications strategy of the Total group with regards to climate issues, and its practices consisting of investing massively in fossil energies”.
It also alleges the “destruction, damaging and deterioration of property belonging to others” and complicity in such acts, which refer to the consequences of the oil giant’s extraction activities.
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Since 2020, TotalEnergies has led an active PR campaign promoting its ambition to reach carbon-neutral status by 2050, while also promoting itself as a “multi-energies” corporation and a “major player in energy transition”.
But while the International Energy Agency made clear as of 2021 that there must be a halt to any new project for the extraction of fossil energies in order to reach the goal of net-zero energy-related carbon dioxide emissions by 2050, around 20 new projects for fossil fuel extractions were, variously, launched, extended on existing sites, or planned by TotalEnergies in the year 2022 alone. The company also foresees that 70% of its investment budget between now and 2030 is dedicated to its activities in fossil fuels.
In the complaint filed by the three NGOs, they note that “the objectives of growth in gas and biofuels continues to cause heavy climatic and environmental impacts”. TotalEnergies plans to increase its gas production by a third between now and 2030. But the United Nations has warned, in a commissioned report published in December 2020, that worldwide gas production must fall by 3% per year over the decade 2020-2030 in order to stay on track with the target, as set out in the 2015 Paris Climate Accords, of limiting global warming to 1.5% above pre-industrial levels. A study by scientific researchers from University College London and published in September 2021 found that to meet that target, yearly worldwide oil and gas production must fall, also by 3%, until 2050.
In a written response to questions about the complaint submitted to it by Mediapart, TotalEnergies declared: “TotalEnergies implements its strategy in a concrete manner (investments, new skills, significant reduction of greenhouse gas emissions…) and is in line with the objectives the company set itself to reach carbon neutrality in 2050, together with society. It is therefore false to claim that our strategy could be ‘greenwashing’.”
The group added: “TotalEnergies gave itself the objective of having, in absolute terms, lesser worldwide Scope 3 emissions in 2030 than in 2015: indirect emissions linked to the use of products sold to our clients are effectively on a falling trajectory at a worldwide level whereas our sales of energy are in growth, which is made possible by the carbon intensity of the products sold (-11% between 2015 and 2021, with an objective of -20% in 2030).”
The complaint by the NGOs also underlines that TotalEnergies’ reconversion for biofuel production of its La Mède refinery in Châteauneuf-les-Martigues, in southern France, is largely centred on the use of palm oil, and without any indication as to whether the imported oil comes from activities contributing to deforestation.
The go-ahead granted by public authorities for the reconversion was challenged before an administrative tribunal in nearby Marseille by several environmentalist associations. But while the tribunal, in a ruling in April 2021, did not overturn the authorisation, it did find that TotalEnergies had not taken into account “the direct and indirect effects on the climate” of its “substantial” use of palm oil.
NGOs Wild Legal, Sea Shepherd France and Darwin Climax Coalitions updated their complaint to the Nanterre prosecutors’ office in March 2021 with further evidence against the oil and gas giant, notably its planned development by 2025 of 400 oil wells along the shores of Lake Albert in Uganda, in a joint venture with the China National Offshore Oil Corporation (see Mediapart’s report here). Environmentalists have warned that the multi-billion-euro project in one of Africa’s most biodiverse regions will involve mass displacements of the local population.
In April 2022, the NGOs further added to their complaint against TotalEnergies with the allegation of its responsibility in “ecocide”, which, since August 2021, is recognised under French law as a criminal offence. However, the Nanterre prosecutors’ office told Mediapart that this has not so far been taken into account because it was not included in the text of the initial complaint filed in 2020 and also requires “precise constituent information”.
William Bourdon is the Paris lawyer representing the three NGOs. “It’s a ‘first’ on a legal level for TotalEnergies to be the object of a complaint for misleading commercial practices, that’s to say in this case for the industrialist’s greenwashing,” he said. “The elements brought forward to characterize the substance of the facts are numerous, notably mirroring all the scientific and civil [society] documentation for years about TotalEnergies.”
“Any procrastination on the part of the prosecution services would be unacceptable with regard to the climatic urgency and the nature of the lies conveyed by the oil company,” added Bourdon.
In July last year, the DGCCRF inspectors questioned Clara Gonzales, a jurist for Greenpeace France which, along with French environmental NGOs Les Amis de la Terre and Notre affaire à tous, launched a civil action in March 2022 against TotalEnergies for the same complaint of “misleading commercial practices”.
“The object of the questioning was to give answers to the investigators’ technical questions and to pass on to them information in our possession that allows to legally characterize misleading commercial practices,” she told Mediapart. “We have in sight three claims made by TotalEnergies: its ambition to be carbon neutral by 2050, [and] the climate suitability of fossil gas, and that of biofuels. The goal of punishing disinformation behaviour is the same, so it is logical that we collaborate with this type of procedure.”
“Whether it concerns our civil [law] recourse or the opening of a criminal investigation, the objective is to punish illegal behaviour, in this case the greenwashing and deceit of the oil-gas majors,” added Gonzales. “What the opening of a preliminary investigation [by the Naterre prosecution services] shows is that there is indeed an ever greater legal risk for multinationals which lie in their climatic [PR] communications. We no longer have the time to let companies blow smoke at us with their false climate commitments.”
While Mediapart understands that TotalEnergies has been notified of the preliminary investigation, the multinational told Mediapart that “neither the company nor its senior management have received a request for questioning on this subject.”
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- The original French version of this report can be found here.
English version by Graham Tearse