Court Advances Case Against German Greenhouse Gas Emitter

Last month, a German court ruled that it will hear a case brought by a Peruvian farmer against Germany’s largest energy producer, RWE, potentially having huge ramifications in so-called climate justice cases. Farmer Saul Luciano Lliuya sued the company in 2015 for emitting large amounts of greenhouse gases, increasing the threat of glacier lake outburst floods (GLOFs) that endanger his home in Huaraz, in the foothills of the Andes.

This is only the second time a case against a greenhouse gas emitter has reached this stage— the first coming in 2005 after Hurricane Katrina, which was swiftly reversed— says Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, who spoke to GlacierHub about the proceedings. Gerrard noted that this case is “very unusual,” and added, “We’ll see what happens with this one.”

The claim cited a 2013 report that stated RWE emitted 0.47 percent of worldwide carbon and methane emissions from 1751-2010, since industrialization, partly due to its use of coal-fired power plants. To reflect this figure, Lliuya is only seeking reimbursement of 0.47 percent of the damages, or $20,000, out of a total cost of about $4.3 million, to help pay for his home flood defenses. 

Justin Gundlach, staff attorney at the Sabin Center for Climate Change Law at Columbia University, told GlacierHub, “Regardless of the ultimate outcome of the case, the court’s order to the parties to submit evidence is highly significant. Effectively, the court is announcing that it is theoretically possible to trace liability for harms arising from climate change, in part, to a particular corporate defendant.”

“I think the case is mostly seeking to establish legal precedent,” said Gerrard. “He’s alleging very significant injury with a clear causal to climate change.”

Huaraz, a city of population 200,000, was struck by a GLOF in the past from nearby Lake Palcacocha. In 1941, about 5,000 were killed from a GLOF event, and another flood in 1970 also killed thousands following a 7.9 earthquake. While pipes have been installed to lower the water when it gets too high, climate change continues to melt glaciers, some by 90 percent, and increases the size and threat of glacier lakes.

A report in The Guardian indicated that the judges in the case said “Even people who act according to the law must be held responsible for damage they cause to property.”  

According to Deutsche Welle, a German news organization, a representative for RWE stated, “We don’t believe it’s possible under civil law to hold a single emitter responsible for something that countless human and natural resources also contribute to.”

Gundlach told GlacierHub that while RWE may not be liable, “Its decision to admit evidence indicates to would-be plaintiffs around the world that they might prevail if they can present the right set of facts.”

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Should Alberta Legally Protect Its Glaciers?

A recent article in the journal Appeal by Jennifer Cox of the University of Calgary discusses the possibility of legislation regimes for the roughly 700 glaciers in Alberta, Canada. She reviews existing laws and considers alternative forms which might protect these valuable, rapidly-shrinking ice bodies.

Murray Fraser Hall, University of Calgary Faculty of Law (source: LSAC)
Murray Fraser Hall, University of Calgary Faculty of Law (source: LSAC)

Cox argues that existing laws in Canada do not protect glaciers, which she describes as sui generis, or unique. She asserts that Alberta should consider drafting legislation devoted to them, and explores how other countries— like Argentina, Kyrgyzstan, and Switzerland— have legally protected their own glaciers.

Cox begins by mentioning the important status of glaciers. Glaciers provide many ecosystem services and also have touristic and economic value for sightseeing, as well as ecological and scientific value. However, climate change is the greatest threat to Alberta’s glaciers. Since glaciers retreat and their water storage capacity diminishes, problems related to the legal rights of water resources will occur. Moreover, melting glaciers could also lead to possible floods,which some researchers think could be a major problem for Alberta.

Considering that glaciers can provide so many functions and but also spur conflict or disaster, Cox recommends that legislation for glaciers should be created in Alberta and that lawmakers should consider both the pitfalls and successes of laws in other countries first.

Cox raises a slew of questions about glaciers and the law:

As glaciers retreat and their incredible water storage is used up, who gets priority to the water? What happens to the riparian rights downstream when the primary source disappears? Who can tourist companies and national parks sue when one of their main attractions disappear? What if precious minerals, such as gold or copper, are discovered underneath Alberta’s glaciers? Who has rights to glaciers? Is there a right to glaciers? Can glaciers be removed and sold? If so, who gets the pro ts?26 What happens to borders, provincial or international, when the glaciers that differentiate them melt? Who will be liable in the case of a GLOF?

Moraine Lake Alberta Canada(Credit: Flickr)
Moraine Lake, Alberta (Credit: Flickr)

In order to answer the questions above, the author tries to articulate the current situation and to give some recommendations for Alberta from a legal perspective.

The Canada Water Act, the Canada National Parks Act, Alberta’s Provincial Parks Act,and Canada’s other federal and provincial climate change laws do not provide useful guidance related to the legal status of glaciers. The provincial and federal parks acts do not give a layer of direct protection for glaciers within their boundaries, and climate change regulations focus mostly on the reduction of greenhouse gas emissions. As for the Canada’s common law, water riparian rights are neither logically stated nor practically protected. Although international law could provide theoretical guidance, its principle is still legally inapplicable to the glaciers of Alberta. Thus, no legal regime on glaciers currently exists in Alberta.

Fort McMurray Wildfire in Alberta Canada Deemed Extreme(Credit: NASA)
Fort McMurray Wildfire in Alberta Canada Deemed Extreme (Credit: NASA)

“Alberta should look to create legislation that is aimed directly at glaciers,” Cox concludes. “Proactive legislation would protect this unique economic and environmental resource for Albertans and Canadians for decades to come.”

Meanwhile, wildfires continue to ravage Alberta and might take several months to extinguish. This unusually large set of wildfires reflects the influence of climate change, and points to the urgency of fighting climate change. As Cox shows, legal systems can be a crucial element in such fights.

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