On 28 May, the Regional Court in Essen, Germany handed down its long-awaited decision in the matter of Lliuya v RWE. The case had originally been filed in 2015 by Peruvian farmer, Saúl Luciano Lliuya (Lliuya), against RWE AG (RWE), one of Germany’s largest electricity producers. In short, Lliuya sought to hold RWE partially liable for flood protection costs due to the increased flood risk caused by climate change-induced glacial melting in the Peruvian Andes. Lliuya claimed that, as a large emitter of greenhouse gases, RWE was obliged to pay an equivalent proportion of the costs of setting up flood protections. The claim was based on section 1004 of the German Civil Code, a legal provision that protects the property rights of owners. Under section 1004, if ownership is interfered with, the owner may require the disturber to remove the interference.
The claim was grounded in attribution science: it was alleged that the melting of the glaciers in the Peruvian Andes has been caused and intensified by anthropogenic climate change, in particular by GHG emissions, including those of the defendant. It was alleged that the defendant’s share of German GHG emissions is 21.59% (1965-2010) and its share of global GHG emissions approximately 0.47% (1965-2010). The plaintiff argued that there was legal causation between the GHG emissions of the defendant and the alleged imminent impairment of the property: that, given its share of global emissions, RWE had contributed to global climate change and thus to the melting of the glacier and the state of the lagoon. According to the plaintiff’s submission, “every degree of warming” – meaning every fraction of a degree – had led to a faster and stronger melting of the glaciers that pour water into the lagoon. The increased water level in the lagoon in turn increased the risk of overflow flooding the plaintiff’s property. Without the amount of GHG emitted by the defendant, the concentration of GHG molecules in the atmosphere would be lower, the rise in temperature would be lower, the glacier would have melted less, the lagoon would not have such a high water level and therefore the risk to the plaintiff’s property from a glacier flood would be less dramatic.
Ultimately, the court dismissed the case, finding that the flooding risk to Lliuya’s property was not sufficiently high to constitute an ‘impairment’ within the meaning of the German Civil Code. The plaintiff had not sufficiently demonstrated a serious threat to property in the sense of an imminent, acute danger. However, the court accepted the plaintiff’s arguments that large emitters can, in principle, be held legally liable for the harms caused by their contribution to climate change (even when the harm occurs overseas).
While this conclusion is strictly limited to comments on the German law, it represents an extremely important persuasive precedent long-sought by strategic litigants: that partial causation may be sufficient to establish (at least proportionate) liability of large emitters for the cumulative harms associated with the climate change.
The judgment also systematically dismantled a number of arguments commonly cited by large emitters in defending claims against liability for physical harm associated with climate change (from climate change is a matter for government and policy and ‘solutions to climate change can only be implemented at the state and political level’; to the absence of a causal link between localised emissions and climate harms occurring in a different jurisdiction; and that the contribution of individual emitters to global climate change is so small that the GHG emissions of an individual emitter do not significantly increase the possible consequences of climate change).
Accordingly, the judgment is currently being seen as a ‘win’ by strategic litigants – one that may be used as (at least persuasive) ammunition in building further ‘climate liability’ or ‘polluter pays’ cases against large emitters.
This article offers just a glimpse into our thinking on this issue. We provide a range of tailored Insights services to support our clients. For more information or to discuss how we can support you, please reach out Pollination Law Managing Director Sarah Barker, or Head of Knowledge & Insights Kate Hilder, to discuss.
