Luciano Lliuya v. RWE AG German Court dismisses landmark climate change case brought by Peruvian farmer

In a case that has spanned almost a decade, the Higher Regional Court of Hamm has dismissed the landmark civil climate change claim of Lliuya v. RWE.

The claim has generated significant international attention as a novel example of a plaintiff seeking cross-border damages against a single carbon emitter for alleged climate-related harm. Peruvian farmer Saúl Luciano Lliuya sought damages from RWE (a German electricity producer), claiming that RWE should contribute to flood protection measures at his property situated below a glacial lake in the Peruvian Andes due to increased flood risk induced by climate change.

The court dismissed the lawsuit and ruled that Mr Lliuya cannot appeal. However, it accepted that major carbon emitters could in principle be liable under German civil law for the impact of their emissions, which has the potential to influence both legal strategies and policy debates on corporate responsibility for climate change.

Background

While climate-related litigation is not a new phenomenon, the majority of historical claims have been against government/states and private organisations for failing to take action against climate change and to reduce emissions in line with the Paris Agreement (most often in the form of administrative challenges, judicial reviews and human rights claims). Claims for climate-related damages are less common and have primarily been pursued in the US. Lliuya was the first such civil claim in Europe to reach an evidential stage.

In Lliuya, the plaintiff argued that climate attribution science supported establishing RWE’s liability on a pro rata basis by assessing RWE’s historical contribution to greenhouse gas emissions, which was claimed to be 0.47% at the commencement of the proceedings and 0.38% at the concluding stages (based on the Carbon Majors Study reported by Richard Heede).

While all eyes have been on how the court would approach the key questions of causation, the basis for the claim itself (as with other climate damages claims) relied on established legal theories in nuisance, which existed long before the concept of anthropogenic (human-driven) climate change and have analogues in other jurisdictions.

The claim was strategically supported by an environmental NGO, Germanwatch, and the amount of damages being sought (approximately €13,000) was relatively small compared to the precedential and publicity value of the claim. Indeed, the claim had implications for all large, single German emitters, even where those companies were fully compliant with national environmental regulations and where emissions were considered to fall outside the scope of a corporation’s legal responsibilities.

Discussion

The court was asked to consider two key issues: (i) whether there is a real and imminent risk of damage to Mr Lliuya’s property from flood waters from the glacier and, if so, (ii) whether RWE could be linked to that risk and was therefore liable to compensate Mr Lliuya.

Mr Lliuya was unsuccessful on the first issue. In the court’s oral judgment, the presiding judge, Dr Rolf Meyer, found that the detailed expert evidence showed no significant flood risk to Mr Lliuya’s property. The court therefore did not need to decide the second issue and consider, for example, how to determine a single emitter’s share of causation (linear or otherwise) and the connection between increased greenhouse gas concentrations from an emitter and a specific event (and other factors that may amplify or counteract such events).

However, notably, the court found that, were there to be relevant and imminent impairment to a property like Mr Lliuya’s, a single emitter in Germany could in principle be obliged to pay for preventative measures according to its share of emissions. The court also dismissed “slippery slope” arguments, by suggesting that, had the court found in Mr Lliuya’s favour and awarded damages based on RWE’s share of historical emissions, this would not necessarily mean that an individual citizen could be held legally liable for (de minimis) contributions to emissions.

Conclusion

The case is part of evolving jurisprudence addressing climate-related harms and is one of several similar claims in the EU, US and Indonesia, highlighting the interconnectedness of global emissions and local impacts, such as damage from extreme weather events. Indeed, Germanwatch noted the precedential value of the decision and pointed to its broader implications.

However, there are significant unresolved hurdles in bringing claims for climate-related damages and it remains to be seen how a court, having established any liability, would assess damages based on a company’s historical contribution to emissions. It is also difficult to predict how courts in other jurisdictions would approach similar fact patterns, having regard to local laws and evolving regulatory and policy considerations around corporate responsibility for climate change. These questions will continue to be examined by courts around the world.