Greenwashing trial against TotalEnergies: decision in October

In a packed room, France's leading oil and gas group, the world's fourth largest, defended itself in a Paris court against any insincerity in its communications in the face of the associations Greenpeace France, Friends of the Earth France and Notre Affaire à Tous, which accused it of "deceptive commercial practices."

The group led by Patrick Pouyanné defends its "good faith" and the reality of its investments in solar, wind and electric charging stations, and responds that it cannot be accused of "institutional communication", which is very different from an advertisement for gas stations.

Far from the tensions of the regular demonstrations against TotalEnergies, the protest took place in the hushed atmosphere of a courtroom, with the group's CO2 emissions, which remain higher than those of a country like France and will remain so for at least the medium term, in the dock.

Since "greenwashing" or eco-laundering, or presenting oneself as more virtuous in environmental matters than in reality, does not specifically exist in law, it is through the legal route of deceptive commercial practices that the activists have attacked, in a civil procedure.

Unprecedented for an energy giant in France, the trial could create a case law on the limits of corporate environmental communication, which has long been left unchecked and is only just beginning to be regulated in the European Union.

Carbon neutrality

At the heart of the matter: the group's campaign on its websites, on television, as well as on Twitter, LinkedIn and Instagram starting in May 2021, shortly after renaming itself from Total to TotalEnergies, with a new rainbow logo.

The multinational stated its goal of "carbon neutrality by 2050" and presented itself as a "major player in the energy transition." In total, some forty messages are being challenged.

They make it "impossible for an average consumer to understand that TotalEnergies is expanding its fossil fuel production," argued Clémentine Baldon, the associations' lawyer, during a hearing lasting more than four hours.

The group's strategy "will not facilitate the energy transition; it delays it, or even prevents it, and contributes to jeopardizing the objectives of the Paris Agreement" on climate, she said.

The lawyer cites the UN and the International Energy Agency, which have argued that extracting more oil is incompatible with saving the climate.

But "there is no incompatibility," counters the company's lawyer, Françoise Labrousse, who considers it "simplistic" to immediately stop using hydrocarbons. Moreover, Greenpeace itself still uses fossil-fueled ships, she notes.

More business

"Greenwashing would mean promising that the gasoline sold at gas stations is carbon neutral," Françoise Labrousse later said. Her client "never said that his products were good for the climate."

TotalEnergies drives the point home with a central argument: these messages were not advertisements, but rather "institutional communication" governed by stock market law. It denounces the "instrumentalization of consumer law" to prosecute the company's climate claims.

It wasn't the consumer who was targeted, "it was all of the group's stakeholders" - customers, suppliers, investors - argues Françoise Labrousse.

But the associations argue that Adidas was condemned in Germany in connection with its climate neutrality goal.

The associations want to prevent TotalEnergies "from commonly presenting itself as a champion of the energy transition," insists Clémentine Baldon.

The court will also have to judge the promotion of gas as essential to the energy transition, despite its contested climate impact due to methane leaks, which are very warming for the atmosphere.

Here again, the TotalEnergies lawyer had fun quoting Greenpeace Belgium, which once described gas as "useful" for the transition.

In European courts, case law on greenwashing is slowly building. Some groups have lost, such as KLM and Lufthansa airlines.

But TotalEnergies can boast of decisions going in its direction, in favor of the Swedish energy group Vattenfall, or the Spanish electricity giant Iberdrola.