Peruvian Farmer Explains His Lawsuit Against Energy Firm

This photo of Saul Lliuya was taken in Peru. Saul is standing in front of a hazard map of Huaraz (Source: Noah Walker-Crawford).

David and Goliath

In a phone interview earlier this week with GlacierHub, Saul Lliuya, a mountain guide and farmer from Huaraz in northwestern Peru, explains how he is preparing for the next step in his legal battle with multinational German energy corporation RWE.

Just last Nov. 30, a court in the northwestern German city of Hamm ruled that it will hear Lliuya’s climate lawsuit. The suit was previously dismissed in 2016 by the Essen Regional Court in Germany where the RWE headquarters is located.

Lliuya decided to sue RWE for roughly $20,000 in disaster preparedness funds for the Peruvian city of Huaraz in 2015. Moreover, Lliuya is demanding another $8,000 for the personal expenses he had to shoulder in preparing for the worst.

According to Lliuya, “RWE presented additional documents because they didn’t want to accept the judge’s decision. However, in the end, they [the German court] decided the case will move along and go into the evidentiary phase.”

Lliuya added that the Peruvian research organization Instituto Nacional de Investigacion en Glaciares y Ecosistemas de Montaña (INAIGEM) is studying glacial retreat in the region. They have agreed to provide him with information that he can use in his case against RWE.

When asked how he felt about people thinking of him as a hero, he said he felt he was just doing his job. “I don’t feel like a hero… Glacier retreat since the 1940’s has killed a lot of people… just this feeling of climate justice,” he said. 

Lliuya understands that the odds are stacked against him, but he is still hopeful that he will win against RWE. He is happy to have received help from the NGO Germanwatch. Germanwatch focuses on advocating for global equality and preserving the livelihoods of the marginalized. Lliuya says if other people would like help, their team is in need of funding for future legal assistance.

When asked why he selected RWE as a target for his suit, Lliuya pointed to RWE’s coal burning. “It’s one of the largest contaminators in Europe,” he said. He argues that the German company should be held responsible for the disasters caused by the rapidly melting glaciers in the Andes, disasters which have endangered his livelihood and people.

Cordillera Blanca, Peru (Source:Google Maps).

Glacial retreat has resulted in dangerously high water levels in the glacial lakes above Huaraz, for example. Unfortunately, this places Huaraz and other cities along the river at greater risk of Glacial Lake Outburst Floods (GLOFs). Lliuya argues that big energy players like RWE should be held accountable and contribute in preparing for the problems faced by the local population due to climate change.

The Risk to Peruvian Glaciers

Peru’s glaciers have lost up to 90 percent of their mass. The meltwater could potentially end up in glacial lakes like Palcacocha. Palcacocha is located in the Ancash region in the Cordillera Blanca within the Peruvian province of Huaraz. The lake drains into Quebrada Cojup which drains into Quilcay River. The Quilcay River flows through the city of Huaraz and empties into the Santa River.

Since 1970, Palcacocha has grown 34 times bigger. The lake itself contains 17 million cubic meters of water, which is the equivalent of 6,800 Olympic swimming pools. Unlike like some other lakes in Peru, Palcacocha has no early warning system. In fact, Johnny Salazar, a Huaraz civil defense official said in an interview with Reuters that he initially requested $1 million from regional authorities to fund the project. Unfortunately, the plan fell through because the regional authorities didn’t provide any money to help fund the early warning system.

Saul Lliuya (left) and Noah Walker-Crawford (Source: Noah Walker-Crawford)

German anthropologist Noah Walker-Crawford explained to GlacierHub that GLOFs are a very real threat. “Increasing glacial retreat is causing existing glacial lakes to grow in volume and new lakes to form. This is particularly significant for downstream cities with large populations living in areas that would be affected by potential GLOFs,” he said. “In Huaraz, around 50,000 people live in the hazard zone threatened by Lake Palcacocha. Saúl is one of them.”

Anthony Oliver-Smith, professor emeritus of anthropology at the University of Florida, agreed, telling GlacierHub that a GLOF in the region could be disastrous, especially for a city like Huaraz. “If in fact, a GLOF took place…if a village is in the way, we’re talking total annihilation… complete obliteration.”

In northwestern Peru, according to some studies, if a large scale avalanche were to take place and fall into Palcacocha it could result in a 100-foot wave within the lake. That wave could potentially create a flood made of meltwater, trees, mud, and rocks which would rush down the valley. That could mean death for the inhabitants of Huaraz living in flood risk zones who currently lack an early warning system to prompt an evacuation.

However, according to Oliver-Smith, draining the lakes regularly is one way of making sure that GLOFs don’t happen. According to him, the drained water is used for things like irrigation. For now, the overflowing lakes are a valuable source of freshwater. However, he added that the water may eventually run out.

“The problem in the long term with glacial melt is that once that water is gone it’s gone,” he said. 

Walker-Crawford concurred, saying, “For rural farmers such as Saúl, this is an existential threat. With increasingly unstable rain patterns and decreasing water supplies, they will have no reliable source of irrigation for their crops. This is a threat to their livelihood.”

Palcacocha Lake (Source: Daniel Byers YouTube).

 

Setting Legal Precedent with a Climate Suit

With so much at stake for mountain populations and the world’s glaciers, why can’t a company like RWE contribute $20,000 to mitigate climate change-induced losses? After all, the company earned 45.8 billion euros in 2015 by generating 216.1 terawatts of energy for 23.4 million customers.

According to Oliver-Smith, the reason RWE won’t bend is that any negotiation would set a precedent for future claims. “That’s pocket change for RWE,” Oliver-Smith said. “They could do that in a heartbeat and never even notice it, but if they do that they are accepting responsibility… so that’s not going to happen.”

 

Who Will Pay for the Damages Brought About by Climate Change?

Huaraz is just one community facing climate change-related problems. According to some reports, developing nations around the world will need between $140 and 300 billion annually by 2030 for disaster relief funds and management. Right now, these expenses are being shouldered by local taxpayers, national governments, NGOs, and foreign aid. Some civil society stakeholders like Germanwatch, and Lliuya, argue that multinational energy companies who have contributed to climate change should help shoulder the financial burden.

Lliuya says that watching the glaciers melt made him feel helpless. That’s why he filed the case against RWE. He wants everyone to know that addressing climate change will not be easy. However, he believes that we can make a difference if stakeholders around the world can come together to address the problem.

“Every kind of a change comes through a fight or perseverance,” he said. “If we don’t do anything, we know what the consequences will be. So I hope that cases like what we’re doing can be done in other places as well so that we can contribute to reduce the temperature.”







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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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Andean Farmer Demands Climate Justice in Germany

In the Cordillera Blanca Mountains of the Peruvian Andes, glacier retreat caused by climate change has led to an increased risk of flooding for residents living below. Saúl Luciano Lliuya, a farmer and mountain guide who faces the imminent threat of losing his house in a massive flood, argues that large polluters are to blame. This led him to file a lawsuit against the German energy giant RWE demanding the firm take responsibility for its CO2 emissions and help reduce the risk of flooding.

The lawsuit could set an important precedent – if Luciano Lliuya wins, anyone affected by climate change impacts could potentially sue for damages or compensation beyond the borders of their own country. This may provide a more fruitful strategy in light of stalling political efforts at the United Nations level to combat climate change and promote adaptation. In December 2016, the lawsuit was dismissed by the Essen Regional Court in Germany and is currently pending appeal.

Saúl Luciano Lliuya at the Essen Regional Court in Germany, November 2016 (Source: Germanwatch/Photo courtesy Noah Walker-Crawford).
Saúl Luciano Lliuya at the Essen Regional Court in Germany, November 2016 (Source: Germanwatch/Photo courtesy Noah Walker-Crawford).

Climate Change in the Cordillera Blanca

Growing up below the snow-capped mountains of the Cordillera Blanca, Lliuya has borne witness to a changing Andean climate over the past decades. Now aged 36, his work as a mountain guide brings him to high altitudes where he has observed the glaciers progressively receding year after year. This led the glacial lake Palcacocha to rise exponentially in volume – from 0.5 million m3 in 1974 to 3.9 million m3 in 2003 and 17.4 million m3 in 2016. A dislodged piece of glacial ice falling into the lake could lead to a massive outburst flood that would destroy large parts of the city of Huaraz below, according to a recent scientific study.

Huaraz is no stranger to disaster. In 1941, Lake Palcacocha produced an outburst flood that killed thousands and devastated the city. In subsequent decades, the Peruvian authorities drained Palcacocha and other glacial lakes, constructing dams to prevent future disasters. Residents of Huaraz rebuilt the city. Today, existing dams and drainage systems are no longer sufficient at Palcacocha as glacial retreat has increased dramatically and authorities struggle to fund security measures after neoliberal cuts to public finance since the 1990s.

In the short term, glacial retreat in the Cordillera Blanca causes the threat of too much water flooding populated valleys. But if glaciers disappear in the long term, the region will lose its primary source of water. Both scenarios can have devastating consequences. In addition, residents face an increasingly unpredictable climate that disrupts agricultural cycles.

Lliuya argues that Peruvians have contributed little to these problems. “The big companies are mainly responsible for climate change through their emissions. They need to take responsibility and help us face the problems they caused,” Lliuya told GlacierHub. He wanted to take matters into his own hands. When a colleague put him in touch with members of the German environmental NGO Germanwatch, he found partners who were willing to help him take action. Introducing him to the German environmental lawyer Roda Verheyen, the NGO offered to support a legal claim for climate justice against a major polluter. In November 2015, he traveled to Germany and filed a lawsuit against RWE, the largest single CO2 emitter in Europe.

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Lake Palcacocha, December 2014 (Source: Germanwatch/Photo courtesy Noah Walker-Crawford)

The lawsuit

“This is a precedent. RWE AG releases significant emissions, principally through its coal-fired power plants, which makes global temperatures rise, causes glaciers to melt and leads to an acute threat to my client’s property,” Verheyen argued. “We request that the court declare RWE liable to remove this impairment.”

The lawsuit relies on article 1004 of the German Civil Code to argue that RWE is partially responsible for the impairment that Luciano Lliuya faces to his property through climate risk. Drawing on the Carbon Majors study which quantified industrial greenhouse gas emissions and linked them to individual companies, the lawsuit states that RWE contributed 0.47% to historical emissions and should provide its share to reduce flood risk in Huaraz. The Peruvian authorities are planning a multi-million dollar project to drain Lake Palcacocha and build a new dam. Lliuya demands that RWE pay 0.47% of this amount, or around $20,000. The amount is miniscule for a large company but could set a massive precedent.

RWE rejects the claim, arguing that climate change should be discussed at a political level rather than in the courts. In its legal response, the company claims that climate change is so complex that individual companies cannot be linked to specific impacts. In addition, the company denies that Huaraz faces an imminent risk of flooding. RWE did not reply to GlacierHub’s request for comment.

In December 2016, the Essen Regional Court dismissed Lliuya’s lawsuit on formal grounds, stating that his claims lacked legal foundation and coherence. In their verdict, the judges argued that RWE may have partially caused the risk of flooding in Huaraz in scientific terms, but this does not translate into causality in legal terms.

Roda Verheyen and Saúl Luciano Lliuya (Source: Germanwatch/Photo courtesy Noah Walker-Crawford).
Roda Verheyen and Saúl Luciano Lliuya (Source: Germanwatch/Photo courtesy Noah Walker-Crawford).

“The pollutants, which are emitted by the defendant, are merely a fraction of innumerable other pollutants, which a multitude of major and minor emitters are emitting and have emitted. Every living person is, to some extent, an emitter,” reads the finding.

Following the judges’ argumentation, individual polluters cannot be held responsible for climate change because emissions are so widely dispersed. While RWE welcomed the verdict, Lliuya is defiant and vowed to continue. His lawyer is currently preparing an appeal.

The lawsuit is the first of its kind to come this far, but it could set the stage for future climate justice initiatives. In glaciated mountain ranges around the world, people face increased threats of flooding. Even if Lliuya’s lawsuit fails upon appeal, it forms part of a larger trajectory of legal initiatives that demand immediate action while political solutions remain stymied. In the United States, Our Children’s Trust supports lawsuits by children and teenagers against local and federal authorities demanding more sustainable policies. In the Netherlands, the Urgenda citizen’s initiative successfully sued the Dutch government demanding more ambitious climate targets in a suit that is currently pending appeal.

In the long term, Lliuya hopes lawsuits against large polluters will create political pressure to find sustainable solutions to the impacts of climate change. These solutions should account for the historical responsibility of companies such as RWE. Only few people have the means to take legal action; a sustainable strategy must benefit all. As long as policy makers fail to make polluters pay, Lliuya will continue his legal battle against RWE.

“The biggest contributors to climate change must finally take responsibility,” he said. “I want justice.”

 

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Peruvian Demands Payment for Climate Change

Lake Palcacocha, 2002. As the lake absorbs glacier melt, it threatens to flood Huaraz. "Lago Palcacocha 2002". Licensed under CC BY-SA 3.0 via Wikimedia Commons.
Lake Palcacocha, 2002. As the lake grows from glacier melt, it threatens to flood Huaraz. “Lago Palcacocha 2002“. Licensed under CC BY-SA 3.0 via Wikimedia Commons.

Peruvian farmer and mountaineering guide Saul Luciano Lliuya, and the town of Huaraz where he lives, long known as the “Switzerland of Peru,” may go down in climate-change history.

The hundreds of tropical glaciers that blanket the mountains above Huaraz are melting, and Lliuya lays partial blame on German energy company RWE, Europe’s largest emitter of greenhouse gases. Last Friday, Lliuya sent a letter of complaint to RWE, demanding that it pay $21,000 in compensation for its role in climate change, pocket change for a company that earned $1.38 billion in 2014. According to Lliuya’s claim, all the carbon RWE emits into the atmosphere contributes to glacial melt that threatens to flood his town, destroy his home and displace his family.

Saul Lliuya, a small farmer and tour guide from Huaraz, Peru, who is seeking compensation from a German company for increased flood risk due to greenhouse has emissions.
Saul Lliuya, author of the letter of complaint. source: Germanwatch

It is the first such claim in Europe and is backed by a German environmental NGO called Germanwatch, a representative of which met with Lliuya during the Lima Climate Change Conference, COP20, last December. Lliuya sent the letter to RWE through his lawyer Roda Verheyen, a Hamburg-based environmental attorney. If RWE is not willing to pay or does not answer his request by April 15, Lliuya will evaluate the possibility of suing the company.

“This move is unparalleled in Europe,” said Christoph Bals, Germanwatch’s policy director, in a statement. “It is unprecedented both in legal and political terms.  It empowers potential climate change victims. It implements the ‘polluters pay’ principle, a step which is long overdue. A company which creates risks to others has two obligations: stopping to hurt them and limiting the damage.”

Michael Murphy, a spokesman for RWE, told GlacierHub via email that the company could not comment on the letter because it had not yet received it. There is no chance a lawsuit would turn into a class action, because Germany does not have a legal framework for such cases, Verheyen said, also via email. “I do not know whether this will spur similar cases,” she wrote. “My client takes a very courageous step.”

Cordillera Blanca, © Diego Giannoni
Cordillera Blanca, © Diego Giannoni

Given the timing, the case could have an impact on negotiations at the climate treaty meeting in Paris this December. According to the most recent assessment report from the Intergovernmental Panel on Climate Change, retreat and melting in the tropical glaciers of the Andes are caused by climate change. In fact, there are few environmental risks in which climate change can as clearly be faulted as Andean glacier melt, says Germanwatch.

“We do think that both the present claim and a potential lawsuit could lend new momentum to a climate agreement and in the international climate debate,” wrote Stefan Küper, Germanwatch press officer, in an email.

Huaraz is the capital of the region of Ancash, which is a site of great social unrest in Peru, in part due to the environmental impacts of mining mega-projects, which have long been charged with contaminating local water resources. Ancash registered the highest number of social conflicts of any region in Peru during February, with 24 cases, according to the Peruvian government’s Public Defender’s Office (Defensoría del Pueblo).

Flood Risk

The mountain range that towers over Huaraz is known as the Cordillera Blanca, or white mountain range, the highest tropical mountain chain in the world. These dramatic white peaks are covered in 722 glaciers and 296 lakes, according to some estimates. But as the glaciers melt, they threaten not only to deplete a critical water source for the region, but to overwhelm the lakes below, causing torrential and devastating flooding in what are known as a glacial lake outburst floods. One of these lakes, called Lake Palcacocha, sits directly above Huaraz and is thought to pose major flood risk to the town. Over the past 40 years, the lake has grown in size by eight times and in volume by 30 times, according to Lliuya’s claim against RWE.

Plazuela Belen, city of Huaraz, Peru, at night. ©Dtarazona Licensed under CC BY-SA 3.0 via Wikimedia Commons.
Plazuela Belen, city of Huaraz, Peru, at night. ©Dtarazona
Licensed under CC BY-SA 3.0 via Wikimedia Commons.

“Two glaciers could collapse into the lake, that would cause a big flood wave which would destroy the house of my family and many other houses in Huaraz. This is an unacceptable risk,” Lliuya told the Guardian. About 40,000 people live in the high-risk zone for flooding from Lake Palcacocha, according to the Center for Research in Water Resources at the University of Texas, Austin. In 1941, the lake banks were breached by flooding, and within a matter of minutes Huaraz was inundated.

Lliuya says RWE owes Huaraz $21,000 because that sum is equivalent to 0.47% of the estimated cost of protecting the town against flooding and other risks associated with glacier melt. According to the Institute of Climate Responsibility in Colorado, RWE is responsible for 0.47% of all global warming emissions produced between 1751 and 2010. The cost of protecting Huaraz would include drainage of Lake Palcacocha until safety works can be completed, including the building of new dams and the repairing of old ones.

A mutual friend of Lliuya and Germanwatch first introduced them, prior to the meeting at COP20. A small Germanwatch team including Christoph Bals subsequently visited Lliuya and his family in Huaraz, and made a joint visit to Lake Palcacocha. Lliuya could not be reached for comment.

To read more about glacial lake flooding, check out these glacierhub.org stories.

Satellite Images Offer Clues to Glacial Lake Flooding

Glacier Hazards Linked to Prolonged PTSD in Kids

Bhutan’s Fortresses Yet Another Victim of Glacial Floods

For more about Peru’s glaciers, read these glacierhub.org stories

As Peru’s Glaciers Vanish, Villagers Appeal to the Gods

Photo Friday: COP20 Voices for Climate

Artists Stage Glacier Worship to Fight Climate Change

 

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