MANILA, Philippines – A resident of Dinagat Islands joined plaintiffs from Pakistan, Zimbabwe, France, Belgium, Greece, Australia, and three non-government organizations from France and Mexico in a criminal case filed against French oil giant TotalEnergies on Tuesday, May 21.

Frank Nicol Melgar Marba, 29, is the sole Filipino plaintiff in the transnational climate litigation. Marba and other individual plaintiffs were victims of climate-related disasters.

In 2021, Typhoon Odette destroyed parts of the country, damaging half a million houses, according to the National Disaster Risk Reduction and Management Council.

Marba’s house was among them.

“We demand TotalEnergies to pay not just for the destruction of our properties, but more importantly for the loss of our livelihood and the trauma that we are still dealing with up to now,” Marba said in a statement.

“Our livelihoods never really fully recovered and whenever there’s news of a typhoon coming our way, my grandmother still shakes in fear being reminded of our ordeal from Typhoon Odette.”

The case was filed at the Paris Criminal Court.

The non-government organizations part of the litigation said they hoped that “this trial will establish TotalEnergies’ directors and shareholders’ criminal liability for their contribution to the impacts of climate change” and set a legal precedent where “opening new fossil fuel projects would be considered criminal.”

Filipinos would be more familiar with the big oil company through the gas station Total. The company had recently rebranded to TotalEnergies to signal its energy transition.

First criminal climate litigation

In the past, climate litigation has largely been civil actions based on tort, or the legal principle that an omission whether intentional or accidental amounts to an injury payable by damages.

In this context, the omissions of private companies or governments amount to an injury payable to the victims of adverse effects of climate change.

The groups said this is the first time that a climate action will be a criminal one.

While the framing of the offense is still the same – one that is based on the accusation that omissions led to injuries – a criminal action like this complements a bigger campaign to make environmental destructors criminals.

There’s been a push for the International Criminal Court, for example, to add ‘ecocide’ as a fifth international crime to criminalize serious forms of environmental destruction.

According to the lawyers, they filed the criminal action in Paris based on the jurisdictional principle that the “crime” happened in Paris where the company was based. It’s where they made boardroom decisions that supposedly impacted the victims from other jurisdictions.

Climate change litigation, increasing as it is, is still marked by frustrations due to the difficulty of enforcing the orders, especially when the order is issued by an international court.

International court orders are difficult to enforce locally, as nations invoke sovereignty. The last climate action win was in April when the European Court of Human Rights decided in favor of elderly Swiss women, and declared that their government’s climate inaction was a violation of the European convention of human rights.

The defendant

TotalEnergies is one of the top oil and gas companies in the world, among ExxonMobil, Shell, and Chevron.

These companies are collectively known as “Big Oil,” responsible for much of the carbon emissions that exacerbate climate change impacts especially in vulnerable nations.

A 2023 report from the French daily Le Monde said the company was linked to at least 23 oil and gas extraction sites, also called “carbon bombs.” The report said these extraction sites could produce more than 60 billion tonnes of carbon dioxide emissions.

TotalEnergies is already facing at least eight climate lawsuits. In 2024, it received a complaint from Yemenites suing them for oil exploitation in their country.

The firm targets to reduce scope 1 and 2 (direct and indirect) emissions from operations by -40% by 2030. It reported a decrease in greenhouse gas emissions from operated assets in 2023, 24% lower than their emissions in 2015.

Claire Nouvian, director of Paris-based environmental organization BLOOM, said that 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.”

“Letting them do so would equate to giving them a right to globocide,” Nouvian said. “It would be irresponsible of us. We are determined to do everything it takes to stop climate criminals.”

A total of 29 other organizations, not part of the legal case, support the litigation, including Greenpeace Philippines.

“Oil and gas companies like TotalEnergies must pay for losses and damages for climate impacts,” said Greenpeace campaigner Virginia Benosa-Llorin.

“We should not make communities who bear the brunt of the disasters shoulder the cost.”

Benosa-Lorin urged the Philippine government to demand payment for recovery and rehabilitation.

So far, the Philippine government had been proactive in this regard. It had secured a seat in the inaugural board of the fund that seeks to cover for loss and damages incurred by developing countries.

The Philippine government has also stood with Pacific island nations in their bid at the International Court of Justice to make the world’s polluters pay.

As the world feels the impact of climate change, individuals, organizations, and states have been resorting to international law in recent years to make polluters pay. Is the current framework of international law enough to obligate countries to cooperate and drastically cut emissions?

– Rappler.com