A landmark case which seeks to establish that polluters can be held liable for transboundary harm completed its hearing in a German court on March 19. The case against RWE, Germany’s largest energy provider, was filed by Saul Luciano Lliuya, a 41-year-old Peruvian farmer and mountain guide based in Huaraz.
Lliuya has witnessed glaciers retreating in his home in the high mountains. Along with his parents, his neighbours and the 50,000-strong community at risk, Lliuya is concerned about how climate change is affecting the region. “Every year I go up into the mountains, and the situation is very scary,” he said. “It’s getting worse every year, the glaciers are disappearing rapidly.”
RWE is among the top three carbon dioxide emitters in the European Union power sector. The court will deliver its final verdict on April 14.
Lliyua said he had low expectations when the case was filed in 2015 since it was initially dismissed in a court at Essen. Two years later there was a positive response in 2017 to his appeal in the higher regional court of Hamm, which ruled that the case was admissible under German law.
The ruling rests on the “neighbour law” in the German Civil Code section 1004, which deals with protection against interference in property. The section is usually applied in cases of neighbourly dispute but the higher court at Hamm will examine if climate change with its transboundary implications had brought about a global neighbourhood relationship, even if Huaraz and RWE’s headquarters in Essen are separated by over 10,000 km.
This case, according to senior attorney with Centre for International Environmental Law Sebastien Duyck, “marks a turning point in climate litigation and the fight to hold big polluters accountable. A fossil fuel giant being forced to answer in court for its role in climate harm is a seismic shift – signalling the beginning of the end of the era of industry’s impunity”. He said the case could have cascading impacts on over 40 climate litigations in the world. If the court holds RWE liable, it will set a global precedent holding fossil fuel polluters liable and it will also affect countries in Asia and India which have some major emitters.
After the hearings, Lliuya’s lawyer Roda Verheyen said that there is a real danger to her client’s house from a flood and this risk is foreseeable within a reasonable timeframe. The only remaining question is what level of probability the court deems necessary. Verheyen welcomed the court’s clear confirmation that major emitters like RWE can be held liable for climate damage and risks. She said that part of the case was already won as the court considered it admissible and there was a reversal of the burden of proof.
Lliuya has witnessed Palcacocha, a glacial lake upstream from Huaraz, growing in size since 1970, and he fears the lake will burst due to the melting ice and flood the city of more than 50,000. In 2014, Lliuya voiced his concern to a local agricultural advisor, who put them in touch with the nonprofit Germanwatch. In December 2014, the United Nations climate summit was held in the Peruvian capital Lima where Lliuya met the Germanwatch team and discussed filing a lawsuit that would serve as a model case.
A case was filed in 2015 in Essen, where the RWE has its headquarters. Lliuya demanded compensation from RWE for adaptation measures to ensure that the lake does not overflow and destroy his community. The plan is to build a protective dam near the lake that will hold off a glacial lake outburst flood, or GLOF, and is expected to cost 4 million euros. RWE is expected to pay a proportionate 0.38% as its share of historical carbon dioxide emissions from 1854-2023, according to figures in a new report by Carbon Majors.
The Covid-19 pandemic delayed a site visit, which finally took place in 2022 when judges of the higher regional court at Hamm, court- appointed experts and lawyers for RWE and Lliyua visited the glacier. Their report was discussed during the hearings on March 17 and 19. The expert on Lliyua’s side, Lukas Arenson, challenged the report of the court committee that played down the risk of floods and damage to Huaraz and severely underestimated the risk of rockfalls triggered by thawing permafrost, while failing to account for climate change’s accelerating impacts. Further the glacier would not have retreated without climate change, and this was a clear case for reversal of burden of proof.
A research paper published in 2021 points to the anthropogenic effect of carbon emissions on melting glaciers in Peru. It said that a potential glacial lake outburst flood from Lake Palcacocha (Cordillera Blanca, Peru) threatens Huaraz, a city of 120,000 residents. In 1941, an outburst flood destroyed one-third of the city and caused at least 1,800 fatalities. Since pre-industrial times, Lake Palcacocha has expanded as the Palcaraju glacier has retreated. The glacier’s retreat by 1941 was an early effect of anthropogenic greenhouse gas emissions. Peru has witnessed many mudslides and floods due to climate change over the years. Lliuya cited an instance of a glacier mass breaking off and falling into the Cancahua lagoon and flooding the Buin river on March 3, which affected habitations downstream in the Ancash region.
In response to emailed questions for this article, a speaker for RWE questioned the reliability of the amount of emissions attributed to the German company and argued that a single emitter could not be held liable for global climate change. The speaker said that the lawsuit is an attempt to set a precedent whereby every single emitter of greenhouse gases in Germany could be held legally responsible for the effects of climate change worldwide, even if they have always complied with the applicable public law provisions.
If such a claim were to exist under German law, it would also be possible to hold every motorist liable. “We believe that this is legally inadmissible and also the wrong approach from a socio-political perspective,” said the speaker. “Solutions to the global problem of climate change should be developed in a future-oriented manner at the state and intergovernmental level, not retroactively through the courts.”
An RWE statement later said that the hearing had made it clear that the lawsuit was “unfounded” and should be dismissed. “In our opinion, the court expert has conclusively demonstrated that there is no risk of flooding in the foreseeable future that would threaten Mr Lliuya’s property.”
“Irrespective of the plaintiff’s lack of a cause of action, climate targets belong on the political agenda and not in a courtroom,” said the German energy giant. RWE pointed out that since the company had complied with the law, it would be contradictory for the state to legally regulate carbon dioxide emissions and at the same time impose a retroactive civil liability on the energy corporation.
Whatever the outcome of the case, the fact that it was admissible in German law could set a global legal precedent to hold polluters accountable and perhaps make them pay their share for adaptation, based on historical emissions. For the community in Huaraz, the attention this case has garnered is a victory of sorts and could lead to more attention being focused on glacier retreat and the dangers of floods in the region.
Meena Menon is visiting postdoctoral fellow at the Leeds Arts and Humanities Research Institute, University of Leeds.
