This week, a criminal complaint was filed in France against TotalEnergies’ board of directors and shareholders over their contribution to fatal climate change. More specifically, the board of directors and main shareholders are allegedly responsible for “deliberately endangering the lives of others, involuntary manslaughter, neglecting to address a disaster, and damaging biodiversity”.
Among the defendants are the TotalEnergies’ CEO, Patrick Pouyanné, as well as the shareholders that demonstrably supported the company’s climate strategies that had an adverse climate impact, and did not support climate-friendlier resolutions. According to the press release released by the plaintiffs, this includes Blackrock and Norges Bank.
The plaintiffs are seeking to end ‘globocide’, which is not a legally recognised term, but would entail the permanent stop to fossil fuel extraction. Criminal responsibility for the climate impact of fossil fuel extraction could very well be a game-changer in doing so. Moreover, they want to highlight that certain individuals or companies hold a “superior responsibility” for causing harmful climate change.
Claire Nouvian, Founder and Director of Bloom, one of the three NGOs bringing the complaint, said: “Past decisions of TotalEnergies’ board of directors and main shareholders have proven that those who have a financial interest in the destruction of the world are not apt to take responsible decisions, even when fully aware that they will ravage not just millions of lives, but also the only liveable planet we know of. Letting them do so would equate to giving them a right to globocide. It’s unthinkable. This is why we are determined to stop climate criminals. It has simply become a question of life or death.”
The prosecutor now has three months to determine whether to open a judicial investigation or not. If the criminal complaint eventually proves successful, defendants face fines and imprisonment as potential sentences.
Plaintiffs in the Criminal Complaint Against TotalEnergies
The original plaintiffs in the criminal complaint are a group of 8 individual climate victims and three nongovernmental organisations. A 9th individual plaintiff from the Philippines joined the group days after the complaint was filed.
The individuals include 25-year-old Khanzadi from Pakistan, who survived the disastrous 2022 flooding that killed over 1700 people. She tragically lost her pregnant sister in the flood. There’s also 17-year-old Benjamin from Belgium, who risked his life to save his friend Rosa in a 2021 flash flood but was unsuccessful. 23-year-old Hilda from Zimbabwe, survived cyclone Idai in 2019, but lost her best friend whose body has never been found.
Explaining why Hilda joined the criminal complaint against TotalEnergies, she said: “I wasn’t sure if my sister and I were going to survive the evening when the flash floods hit our town during cyclone Idai. I was traumatised by seeing houses being washed away and the dead bodies lying on the floor the next day. We had to risk our lives to evacuate, I thought I could lose my sister during the crossing. This is the reality of the climate situation, and I want companies like Total and its shareholders to pay for the injustices that communities like mine face due to their emissions.”
The three NGOs involved are BLOOM (France), Alliance Santé Planétaire (France), and Nuestro Futuro (Mexico).
Limited Liability and Criminal Prosecutions
Pursuing criminal proceedings against executives is a crucial strategy since it effectively holds individuals within corporations accountable for actions that contribute to dangerous climate change. Historically, corporations have operated under the doctrine of separate legal personality, which shields individual members from liability. These principles allow executives to steer their companies towards harmful practices, with minimal legal repercussions. Fines and civil penalties are absorbed by the corporate, which leaves the executive largely unpunished.
Criminal proceedings, however, target the individuals within these entities, which can impose significant personal consequences. Criminal climate cases therefore ensure justice in a manner that civil litigation often cannot achieve. The criminal proceedings are therefore not only about punishment, but they represent accountability, deterrence, and justice. Lifting the veil of corporate protection implies that the true cost of causing dangerous climate change is borne by those directly responsible.
Criminal Climate Cases in Other Jurisdictions
Criminal complaints are on the rise in climate litigation, albeit more slowly than their civil counterparts.
In the Netherlands, two large criminal cases are ongoing against (1) Tata Steel and Harsco, which dates from 2021, and (2) Chemours and DuPont, which dates from 2023. Both cases were brought by one of the Dutch foremost criminal litigators, Bénédicte Ficq. More recently, Greenpeace Netherlands has joined both complaints. Both complaints involve criminal liability for the companies’ executives over the intentional and unlawful introduction of harmful substances that ultimately threaten human health.
In Brazil, criminal charges of “qualified homicide” were filed against 21 executives of Samarco, Vale, and BHP Billiton, over their involvement in the deaths of 19 people in a dam collapse. However, in 2017, a federal court suspended the criminal proceedings over allegations that “illicit evidence” had been used to build a case against the executives.
Previously, criminal complaints were filed in South Africa, against President Cyril Ramaphosa and several ministers, over their “unlawful negligence” in failing to take “practical action to address the climate crisis”. However, the attempt to charge the President for “culpable homicide” went unanswered in what the complainant Climate Justice Charter Movement calls the “corrupt criminal justice system”.
A final example involves international criminal proceedings that remain pending against the board of executives of British Petroleum (BP). In 2022, Students for Climate Solutions New Zealand and the UK Youth Climate Coalition submitted a request to the Office of the Prosecutor of the International Criminal Court, requesting an investigation into climate change as a crime against humanity. In their request, it is argued that “[s]enior leaders have known for decades that their contributions to the common purpose of maximising petroleum profits would lead to the infliction of great suffering globally through climate change on a widespread and systematic scale”.