German court dismisses climate lawsuit against RWE, but says large emitters can be held liable
A ruling by a higher German regional court in the case by Peruvian farmer Saúl Luciano Lliuya has been hailed as “a milestone" that will "give tailwind to climate lawsuits against fossil fuel companies.” Despite the court dismissing the case, the lawsuit has established that large-scale emitters can be held legally responsible, said lawyer Roda Verheyen, who represented Lliuya.
“For the first time in history, a higher court in Europe has ruled that large emitters can be held responsible for the consequences of their greenhouse gas emissions,” said Verheyen. “German civil law is applicable in the context of the climate crisis.”
The plaintiff from Peru filed the lawsuit in November 2015 on the basis that he and the over 50,000 inhabitants of the Andean city of Huaraz are under threat of flooding from a dangerously large glacial lake that has grown due to global warming. Lliuya argued that due to its significant historical emissions, the German energy company RWE was partly responsible for the environmental changes near his home.
Court finds flood risk for Lliuya not high enough
In the specific case, however, the Higher Regional Court Hamm did not consider the flood risk for Lliuya to be high enough to serve as a basis for the plaintiff's claims. The Peruvian had argued that RWE, which has operated coal mines and power plants for decades and is now turning its focus to renewable energies, should pay a respective fraction of the adaptation costs associated with the melting of the glacier above the lake. This was based on the share of global greenhouse gas emissions that can be attributed to RWE, and another which analysed the role of anthropogenic climate change on the retreat of the glacier.
Lliuya's legal team, which was supported by NGO Germanwatch, estimated RWE's share in causing global warming to be roughly 0.38 percent, based on the significant historical emissions of Germany's largest energy company, news station ntv reported. RWE had considered the claim to be unfounded.
“This case was never just about me,” Lliuya said. “It was about all the people who, like us in Huaraz, are already living with the consequences of a crisis we did not create. This ruling opens the door for others to demand justice.”
In a press release, the court said that Lliuya could have, in theory, had a claim based on German civil law, where RWE could have been held responsible and forced to take action to prevent climate consequences for the Peruvian farmer. If the company would have refused to take action, it could have been made to pay for costs according to its share of global emissions, as demanded by the plaintiff. Nevertheless, Lliuya's appeal was dismissed as “the taking of evidence showed that there was no specific risk to his property,” said the court.
The judges also argued that the views of the court do not mean that any single citizen could in the future be held accountable for climate damages – an argument brought by RWE during the proceedings.
Ruling could “light the fuse” on further litigation – legal experts
Environmental law non-profit ClientEarth welcomed the ruling. “Under the ‘polluter pays’ principle, today’s ruling means future cases could demand remedial action from companies – for example, funding the mitigation of flood risks,” said chief programmes and impact officer Adam Weiss. “This ruling could light the fuse on litigation that holds the most untouchable-seeming businesses to account for their climate destruction,” he said.
NGO Germanwatch said that the ruling is “a historic landmark judgement that can be invoked by those affected in many places around the world.” The comment refers to the fact that there are very similar legal requirements in numerous other countries, such as the UK, the Netherlands, the USA and Japan.
“This will have an enormous effect as a signal,” said the organisation’s chief policy officer, Christoph Bals. “In order to avoid a large number of individual lawsuits, politicians must now make the major emitters pay for the damage caused and the protection against risks in a binding and organised manner in accordance with the polluter pays principle.”
