Consequences of global warming | A future-oriented defeat

Saúl Luciano Lliuya, mountain guide and small farmer from the city of Huaraz in the Andes, has mixed feelings: "I am happy that we have achieved in this trial that major perpetrators of climate change must answer for the consequences of their actions, that they can be held legally liable," said the 45-year-old after the verdict was announced on Wednesday. Luciano Lliuya filed a civil lawsuit against RWE, Europe's largest emitter of greenhouse gases, in 2015. The Essen-based company should contribute to the costs of protective measures against possible flooding of his house - proportional to its _CO2 emissions. In his hometown, there are fears that the higher-lying Andean Lake Palcacocha could overflow and trigger a tidal wave due to glacier melt caused by climate change. RWE is partly responsible for this , Lliuya argued.

In 2015, the lawsuit was rejected in the first instance by the Essen Regional Court, but two years later, the appeal to the Hamm Higher Regional Court was admitted. The judges found the lawsuit to be conclusive and opened the hearing of evidence: a first success for Lliuya and his lawyer, Roda Verheyen. The environmental law specialist was appointed by the non-governmental organization Germanwatch, which had supported the Peruvian plaintiff from the outset. "This ruling is a milestone that will have a global impact," Verheyen said at the time. The court had fundamentally recognized that large emitters can be responsible and liable for the consequences of climate change. This legal opinion had already been referred to in five international rulings – most recently in New Zealand, Verheyen said at an event in Hamburg a few weeks ago.

The court has now confirmed that an owner can defend himself against disturbances and demand an injunction, citing Section 1004 of the German Civil Code. The ruling reaffirms that a threat to property can constitute such a disturbance and that an owner is also entitled to protective measures or payment for them from the disturber. In this specific case, an owner in Peru could certainly sue a disturber like RWE in Germany, because the law does not state that the disturber must come from the "neighborhood," explained Judge Rolf Meyer.

In his opinion, the risk that the plaintiff's house could be destroyed by a potential glacial flood is only around one percent. And this is not sufficient to require RWE to contribute to protective measures proportional to its emissions, the ruling continues. Saúl Luciano Lliyu finds this passage disappointing. "Glacier scientists who have known this area for decades recognize the risk, yet we are not receiving any help from RWE in protecting against the flood risk," he criticized in response to an inquiry from nd. He had hoped for more and used every legal means possible to secure a ruling specifically against RWE. Through his lawyer, he unsuccessfully filed a motion for disqualification against the expert and structural engineer Rolf Katzenbach, who, in the proceedings, did not believe there was any threat to the plaintiff's property in the next 30 years. However, Judge Meyer described Katzenbach as a "luminary" when handing down the verdict and ruled out an appeal.

"Glacier scientists recognize the risk, yet we receive no help from RWE in protecting against the flood risk."

Plaintiff Saúl Luciano Lliuya

RWE therefore sees itself as the winner of the case. The company's lawyers argue that "even in the second instance, the NGOs failed to set a precedent." The company's liability is also unjustified because it has always complied with legal requirements. RWE warned of unforeseeable consequences for the industrial location if "claims for climate-related damages could be asserted against every German company anywhere in the world."

Judge Meyer takes a very different view: He does not see Germany at a competitive disadvantage, as similar lawsuits also occur in other countries. However, they are only possible in countries with a functioning rule of law. In Peru, the judicial system is only partially independent, said Luciano Lliuya. Environmental lawsuits that are archived unprocessed are plentiful. This is precisely why he thanks the German judiciary, which even came to Peru to inspect the site in May 2022. "Here in Huaraz, this has helped many people understand how everything is connected," said Lliuya.

For Germanwatch, the Luciano Lliuya v. RWE case has a significant impact. The environmental and development organization stated that it is the world's only lawsuit for corporate liability for climate risks that has made it to the evidentiary hearing. This has made legal history.