While a German court ruled for the first time on Wednesday that major carbon emitters could be held accountable for the damage they have caused, it dismissed the claim by a Peruvian farmer that a flood risk to his home in the mountains of Huaraz due to greenhouse gas emissions by a German power company should warrant compensation.

Seeking to establish that polluters can be held liable for transboundary harm, the farmer and mountain guide Saul Luciano Lliuya had filed the case against the German power utility Rheinisch-Westfälisches Elektrizitätswerk. RWE is among the top three carbon dioxide emitters in the European Union power sector.

The highly anticipated order by the higher regional court in Hamm, Germany acknowledged the climate dimensions of the case and the inequality between the Global North and South and the fact that Lliuya could not prevent the threat to his community as caused by other actors, said senior attorney with Centre for International Environmental Law Sebastien Duyck.

Climate accountability

Despite the appeal being dismissed, lawyers and activists declared that the case sets a groundbreaking precedent that could have implications for over 40 ongoing climate damages cases worldwide as well as future cases. They said it would herald an era of climate accountability.

The judgement “shatters the wall of impunity for major polluters”, said Duyck of the Centre for International Environmental Law. “For too long, these heavy emitters have been able to harm our environment with no regard to the consequences,” he said. “That time is over”.

In the summary order, Judge Rolf Meyer stated that the plaintiff might have a claim against the defendant under Section 1004 of the German Civil Code, which relates to the neighbourhood clause. This clause deals with protection against interference in property.

While the section is usually applied in cases of neighbourly dispute, the court examined 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

The court ruled that if there is a threat of adverse effects, the polluter may be obligated to take preventive measures. If the polluter definitively refuses to do so, it could be determined, even before actual costs are incurred, that the polluter must bear the costs in proportion to their share of the emissions.

While the “great distance” between RWE’s power plants and Lliuya’s home in Peru alone was not sufficient reason to declare the lawsuit unfounded, the court noted the inaccuracy of one of the defendant’s arguments.

Lliuya said that Palcacocha, a glacial lake upstream from Huaraz, had been growing in size since 1970. He feared that it would burst due to melting ice and flood the city of more than 50,000.

The court dismissed his appeal because the evidence showed that there was no concrete danger to his property.

The probability that any water from a glacial lake would reach the plaintiff’s house within the next 30 years was only about 1%. Even if such an event occurred, the damage to Lliuya’s house would be negligible, the court held. It rejected Lliuya’s objections to the court expert’s method of risk assessment that was based on a specific risk analysis based on local conditions and did not factor in wider climate change impacts.

A rockslide

Lliuya filed the case against RWE, in 2015, in Essen, the RWE headquarters with the help of the non Germanwatch after witnessing changes in the glacial lake. He demanded that the RWE compensate him for adaptation measures to ensure that the lake does not overflow and destroy his community.

After the case was dismissed, an appeal was filed at the higher regional court in Hamm in 2017. The hearing for the case was completed on March 19.

In an online briefing, speaking from Huaraz, Lliuya said he was satisfied with the verdict and he had achieved what he wanted to – to establish a precedent to link climate change and carbon emitters. But, he said it was a pity that RWE was not held responsible, even though the court held that emitters of pollution were responsible in general.

Another pity, he pointed out, was that a month ago, a rockslide 10 km from his home had left four people dead and damaged property. This aspect was taken into account by the court, he said. If such an incident were to occur near Huaraz, the damage would be much greater, he contended.

While the Peruvian authorities have built dykes around the glacial lake and installed early warning systems and were monitoring its levels, the responsibility for preventing disaster due to climate change did not fall on the countries in the Global South alone, said Noah Walker-Crawford, research fellow, London School of Economic Grantham Institute, who was in Hamm.

The order established the legal precedent that major emitters could be held liable under German civil law for climate damages. “The verdict was an important tool for communities that companies bear the responsibility for climate harm,” he said.

The final verdict was to be delivered on April 14 but was postponed due to an application for bias filed by Lliuya’s lawyer relating to the expert in the court case.

Lliuya’s lawyer, Roda Verheyen, added: “ It is true that the court itself did not consider the flood risk for my client to be sufficiently high. But one thing is clear: today’s ruling is a milestone and will give a tailwind to climate lawsuits against fossil fuel companies, and thus to the move away from fossil fuels worldwide.”

Lliuya’s decade-long case would be a massive precedent that could be transposed elsewhere – for instance in the dozen cases against oil companies in the US and also in the case of the farmers from Indonesia who have filed a case against a cement company for impacts on agriculture, said Walker-Crawford.

RWE said in a statement, “The court has ruled that the lawsuit against RWE was unfounded. The attempt to set a legal precedent here has thus failed in the second instance. We also believe that it is fundamentally wrong to shift climate policy demands to the courtroom via NGOs. If this sets a precedent, every German industrial company would soon be faced with long-running climate lawsuits. This would cause massive damage to our industrial base.”

It added: “Climate policy issues must also be discussed and resolved at the political level.”

Meena Menon is visiting postdoctoral fellow at the Leeds Arts and Humanities Research Institute, University of Leeds.