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.”

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.”