Scope 3 Emissions - A Step towards Corporate Climate Accountability? Assessing Notre Affaire à Tous & Ors v. TotalEnergies SE

1. Introduction

TotalEnergies has long argued that it cannot be held responsible for the emissions produced when its customers burn the oil and gas (scope 3 emissions) it sells (TotalEnergies [49 - 50], [152]). In other words, such emissions arise from the conduct of the company’s customers rather than from the company’s activities and fall outside the scope of its legal obligations. However, the claimants argued that TotalEnergies exercises decisive influence over those downstream emissions through its investment decisions and the composition of its energy portfolio and cannot disclaim responsibility for emissions that are the foreseeable and inevitable consequence of extracting and selling fossil fuels (TotalEnergies [40], [81]).

This case comment examines how the French vigilance law applies to Scope 3 emissions under its corporate due diligence provisions. It distinguishes between the court’s willingness to scrutinise a company’s climate risk mapping and its refusal to prescribe the substantive content of the company’s climate strategy. Nevertheless, the court refrained from granting the full relief sought declining to set a specific emissions-reduction target or require alignment with the Paris Agreement’s 1.5°C pathway. The court noted that such intervention would mean substituting judicial judgment for that of management (TotalEnergies [219 - 220]).

2. Background

The Parties

The claim was brought against TotalEnergies SE, the French parent company of a global energy group by the claimants (Notre Affaire à Tous, Sherpa, Zéa and France Nature Environnement, together with the City of Paris as a voluntary intervener). This was narrower than the group that had originally issued proceedings in January 2020, which had also included Eco-Maires, several French municipalities, the Centre-Val de Loire Region and the Est Ensemble public territorial body. The City of New York, the municipality of Poitiers and Amnesty International France had also intervened voluntarily before the Nanterre court, but only the City of Paris’ intervention was ultimately admitted. Standing was contested throughout the litigation and was only settled by the Paris Court of Appeal on 18 June 2024, which confirmed that the four organisations could institute legal proceedings and admitted the City of Paris’ intervention, while excluding Eco-Maires, the municipalities, the region, the Est Ensemble body, the City of New York, Poitiers and Amnesty International France from the case. The Public Prosecutor’s Office also joined the proceedings on 3 February 2026 and submitted that climate change does not fall within the material scope of the vigilance law.

The legal issue

The issue can be distilled into two connected questions.

First, whether TotalEnergies’ duty of vigilance under Article L.225-102-1 of the Commercial Code extends to climate risk?

Second, if the first answer is answered in the affirmative, whether scope 3 emissions generated by the combustion of TotalEnergies’ oil and gas products must be identified and addressed in its vigilance plan?

The legal basis: the Duty of Vigilance Law

The claim rested primarily on Article L.225-102-1 of the French Commercial Code, which imposes an obligation (duty of vigilance (DVL) 27 March 2017) on large companies to formulate and implement a vigilance plan identifying and preventing serious risks to human rights, fundamental freedoms, health, safety and the environment (HSE) arising from their own activities and those of the companies they control (TotalEnergies [109]). The DVL was enacted in response to the 2013 collapse of the Rana Plaza garment factory in Bangladesh, and its drafters drew explicitly on the UN Guiding Principles on Business and Human Rights, and the OECD Guidelines for Multinational Enterprises (the OECD Guidelines). Notably, the DVL did not define what could be regarded as “the environment”, and that omission was central to the dispute.

TotalEnergies argued that climate change is too global and multi-causal a phenomenon to fall within a law targeted at company-specific risks, and that climate-related disclosure belongs instead in a separate sustainability reporting regime under the Corporate Sustainability Reporting Directive (CSRD) and other related Directives. While the claimants argued that the DVL’s broad and undefined wording, read alongside the international instruments that inspired it, was never intended to exclude climate risk (TotalEnergies [31 – 37]). Agreeing with the claimants, the court noted that “environment” must be interpreted in its broadest sense and that this includes climate change caused by the release of greenhouse gases (GHGs) (TotalEnergies [138 – 139]).

Scope 3 emissions

These are indirect emissions that result from the activities of an entity but arise from sources neither owned nor controlled by such entity (WRI, (2004) 25). With respect to an oil and gas producer, this will be emissions released when its customers burn the fuel it has extracted, refined and sold.^[11] The court noted that TotalEnergies’ own 2024 reporting put its scope 3 emissions at 342 MtCO2, roughly ten times its combined scope 1 and scope 2 footprint of 34 MtCO2 (TotalEnergies [165]-[167]). TotalEnergies’ existing vigilance plan addressed only scope 1 and scope 2 emissions, treating scope 3 as a matter for separate sustainability reporting rather than for the vigilance plan itself (TotalEnergies [152][165][197]). Whether a duty of vigilance can properly address emissions that are, strictly speaking, generated by a third party’s conduct rather than the company’s own was the more difficult of the two questions before the court, and one on which the claimants relied on comparable reasoning from the Shell litigation as decided by the UK Supreme Court and the Dutch Court of Appeal in Finch and Milieudefensie respectively.

The Parties' claims

The claimants asked the court to order TotalEnergies to publish, within six months, a new vigilance plan containing a comprehensive mapping of climate-related risks across scopes 1, 2 and 3, and committing the company to emission reduction measures consistent, in order of preference, with the IPCC’s P1 pathway, the International Energy Agency’s net zero emissions (NZE) by 2050 scenario, or, at the very least, a bespoke pathway limiting warming to 1.5°C, including ceasing new hydrocarbon exploration. In the alternative, they sought the same outcome under the general ecological damage prevention mechanism in Article 1252 of the French Civil Code.

TotalEnergies resisted the claim arguing that climate change is a global and multidimensional challenge not resulting from its own activities within the meaning of the vigilance law, and that its customers’ combustion emissions are, in any event, beyond its control (TotalEnergies [42-46], [49-50]). In the alternative, it argued that assuming without conceding that the vigilance law did apply to climate risk, the specific content of a vigilance plan is a matter of self-regulation for the company, and that the court had no power to prescribe particular measures or targets (TotalEnergies [51], [193-202]).

Rejecting the first argument but substantially accepting the second, the court held that TotalEnergies had failed to discharge its statutory duty by excluding scope 3 emissions from its risk mapping. Further, the court clarified that it was not the court’s role to fix the specific emissions reduction target the company ought to meet (TotalEnergies [182-183], [207- 209], [220]).

3. The Decision

The Courts’ Decision

Following more than six years of legal wrangling, the Paris Judicial Court (34th Chamber) ruled on the matter on 25 June 2026. The court held that TotalEnergies’ duty of vigilance under the DVL extends to climate risks linked to the combustion of the oil and gas products it sells and found the company’s existing vigilance plan insufficient because it addressed only scope 1 and scope 2 emissions (TotalEnergies[12], [18]). It ordered TotalEnergies to supplement its risk mapping to include scope 3 emissions within six months of service of the decision.

The Court’s Analysis and Reasoning

First, the court defined the material scope of the “environment” under the DVL by drawing upon international frameworks, notably the UN Guiding Principles on Business and Human Rights and the OECD Guidelines to come to the conclusion that climate change, driven by GHG emissions, inherently falls within the scope of environmental risks (TotalEnergies [130] – [139]).

Having established this, the court addressed the critical link between corporate responsibility and scope 3 emissions by rejecting the argument that downstream emissions are detached from corporate operations. Instead, the court emphasised that extraction and refining of fossil fuels are linked to their inevitable combustion. Importantly, the court reasoned that these emissions fall within the sphere of the company’s influence, as the company directly shapes downstream consumption through its capital allocation, strategy, and investment portfolio (TotalEnergies [175 – 176]).

Finally, the court addressed the dual nature of the claims. The plaintiffs sought preventive interventions under both the DVL and the general civil liability framework TotalEnergies [223- 235]. Recognizing the complementary nature of these preventive actions, the court ordered TotalEnergies to update its vigilance plan first, while staying the proceedings regarding the Civil Code injunctions TotalEnergies [252 – 254]. The court reasoned that it could not adjudicate on setting specific targets under the Civil Code until the company had first fulfilled its statutory duty to self-regulate and clearly identify its risks. 

The Scope 3 Inclusion Argument

The inclusion of scope 3 emissions marks a significant development in corporate climate accountability. Because these emissions constitute the largest share of a fossil fuel company’s carbon footprint, the court recognised that they must form part of any credible climate strategy. The argument that responsibility rests solely with consumers was rejected with the court noting that a parent company’s due diligence obligations may extend to downstream emissions arising from its subsidiaries’ activities and its own investment choices. Because fossil fuel companies can influence those emissions through their business strategy and product portfolio, they cannot confine legal responsibility to scope 1 and scope 2 emissions. The decision also has important implications for climate disclosure as companies cannot rely solely on separate sustainability reporting, including reporting under the CSRD, but must integrate material scope 3 risks into their actionable risk mapping under the DVL.

Comparisons to the Milieudefensie v Shell case

The decision invites compelling comparisons with the judgment of the Dutch litigation in Milieudefensie which the claimants relied on to argue for strict corporate mitigation targets. Specifically, the Paris Judicial Court explicitly aligned its factual analysis with the Milieudefensie judgment at the Court of Appeal emphasising the unwritten duty of companies to protect humans against climate change and highlighting a causal link between the extraction of oil and its inevitable combustion. The other similarity lies in how both courts exercised judicial restraint regarding the imposition of GHG emissions reduction targets.

In Milieudefensie, the Court of Appeal overturned the 2021 District Court ruling that had imposed a 45% emission reduction target on Shell. The Court of Appeal reasoned that a 45% mandatory reduction target cannot be applied as a hard, legally binding standard to an individual company, as different sectors and countries require distinct reduction pathways (Milieudefensie [73 – 75]). The Paris Judicial Court echoed a similar point by refusing to impose the claimants’ 1.5°C pathway or NZE targets concluding that it is not the judiciary’s role to impose GHG emission reduction targets on companies (TotalEnergies [219]).

Further, the Dutch court reasoned that forcing Shell to reduce its fuel sales would simply cause consumers to buy from other suppliers, without reducing global CO2 emissions (Milieudefensie [106 – 110]). In contrast, the Paris Judicial Court discountenanced this “market substitution” argument by basing its intervention strictly on the DVL. Relying on the DVL, the court did not need to identify that TotalEnergies’ actions would single-handedly solve global emissions. It simply enforced the procedural mandate that comprehensive corporate climate disclosure and value-chain accountability (scope 3) must be considered thereby sidestepping the hurdles of the Dutch tort-based claim.

4. Conclusion and Practical Significance

Overall, the judgment strengthens corporate climate accountability by directing attention towards the importance of downstream emissions and bringing them within the DVL. The judgment required TotalEnergies to include scope 3 emissions in its vigilance plan and risk mapping, finding that emissions arising from combustion were closely connected to the group’s business activities and that TotalEnergies could influence them through its investment decisions and corporate strategy. Therefore, companies subject to the DVL will need to assess the extent that their risk mapping takes account of scope 3 emissions. Although, many companies already disclose emissions from their upstream and downstream value chains under the CSRD and other sustainability reporting instruments. However, this judgment demonstrates that disclosure alone does not address an omission in the vigilance plan. Companies should consider whether these reported emissions represent climate risks that need to be included in their risk mapping and followed by appropriate measures. TotalEnergies had already disclosed its scope 3 emissions but had not included them in its risk mapping.

Future claimants may be able to challenge specific gaps in a company’s vigilance plan, particularly where substantial scope 3 emissions have been disclosed but the associated climate risks have not been adequately addressed. Claimants may rely on a company’s disclosure to demonstrate its awareness of relevant climate risks without having to prove at the outset that a particular emissions reduction target would necessarily reduce global emissions, as illustrated by the difficulties encountered in the Shell litigation.

For investors in fossil fuel companies, failure to address scope 3 emissions in vigilance plans may increase litigation and compliance costs, while gaps between public climate commitments and the measures adopted may raise concerns about misleading environmental claims or greenwashing. Investors should therefore look beyond published emissions reduction targets and scope 3 data to consider whether these emissions are adequately addressed through appropriate mitigation measures. Overall, the judgment strengthens corporate climate accountability by claryfying the extent to which downstream emissions ought to be captured within the DVL, while leaving companies to determine the measures necessary to address those risks.