On May 28, Germany’s Higher Regional Court of Hamm dismissed a lawsuit brought by a Peruvian farmer, Saúl Luciano Lliuya, against the German energy company RWE AG. The court found that Lliuya had not demonstrated a sufficiently imminent or acute threat to his property to justify legal relief.
The decision is final, with no opportunity for appeal, which brings the nearly decade-long legal battle to an end. Although dismissed, the court’s decision acknowledged that corporations can, in principle, be held responsible for damages linked to their carbon emissions—even when the company and the damages are separated by an ocean.
What do the greenhouse gas emissions of a German energy company have to do with a farmer across the ocean in the Peruvian Andes? Lliuya’s home and farm are situated in Huaraz, Peru, directly in the potential flood path of Lake Palcacocha, a glacial lake perched at 15,000 feet. Lake Palcacocha has expanded dramatically due to melting glaciers, and any overflow of the lake’s basin likely spells disaster for the town. History bears this out. The lake last flooded in 1941, killing as many as 5,000 people, and today, around 50,000 of Huaraz’s residents who live within the lake’s “danger zone” face extreme risks if the lake overflows.
RWE is a German-based multinational energy company and one of Europe’s largest power utilities. According to Lliuya, it was also Europe’s largest source of CO2 emissions at the time he filed his lawsuit, which alleged that RWE’s emissions contributed, in part, to glacial melting that has increased the flood risk from Lake Palcacocha, thereby threatening his livelihood as a farmer and mountain guide. The argument linked his risk and RWE’s emissions by relying on research that calculated that RWE is responsible for about 0.47% of global greenhouse gas emissions. Then, using principles of market share liability, Lliuya argued that RWE should pay their share (0.47%—about 17,000 euros) toward the costs of a project designed to minimize the flood risk that he faced.
Lliuya’s claim was based on the long-standing legal principle of nuisance. German law allows a property owner to bring a lawsuit requesting that someone stop or prevent a disturbance that adversely affects their property, even if that interference is indirect. While these kinds of nuisance claims are well established and widely used in more conventional disputes, their application to intercontinental climate impacts is novel.
Lliuya sought to bridge this intercontinental gap through climate attribution science, a body of science that investigates the links between greenhouse gas emissions, climate change, and its impacts. Using “the current state of knowledge,” the complaint states that “the rapid rising of Lake Palcacocha . . . has an anthropogenic cause in climate change.” Lliuya also referenced findings from the Intergovernmental Panel on Climate Change, a United Nations body that assesses climate science, to support his argument.
Similar to the arguments that corporate defendants have made in other climate liability lawsuits, RWE argued that climate change cannot be addressed through individual civil liability claims and the company could not be held liable due to the complex interactions between many sources of emissions over time. Specifically, RWE argued that there is no identifiable, linear chain of causation that connects its emissions to the specific flood risk to Lliuya’s property. RWE further argued that such issues should be resolved through the legislative process rather than by “arbitrarily targeting specific emitters with no basis for liability.” RWE also expressed concern that allowing the case to proceed could trigger a wave of similar lawsuits against companies and suggested that singling out one emitter could mean that individual citizens could also be held liable for their emissions. However, the court rejected this argument and RWE’s broader concerns about a “slippery slope,” finding that the fact that RWE is one among many emitters did not prevent the plaintiff from pursuing his claim.
The case’s longevity stemmed not just from jurisdictional questions but also from the complexity of novel scientific evidence. Before the court could fully consider the merits of Lliuya’s arguments, his case had to overcome several legal and procedural hurdles. Initially, the German trial court (District Court of Essen) dismissed the case on standing grounds. Lliuya appealed, and in 2017 the appellate court (the Higher Regional Court of Hamm) reversed, finding Lliuya’s complaint was indeed admissible, allowing the case to proceed. Later that year, in a separate ruling, the Hamm Court found a legal basis to hold RWE responsible for its effects on Lliuya’s property, even if the impacts felt were a continent away. This provided a path for Lliuya to demonstrate that as long as his claims could be factually proven with evidence, there was a potential path towards holding RWE legally responsible.
Next, as part of the evidentiary phase, came a field trip. Two judges from the Hamm court, court-appointed experts, and lawyers and scientists from both sides traveled to Huaraz in 2022 on a fact-finding visit, resulting in a 200-page expert report that assessed the technical aspects of the threat and the possible contribution of RWE’s emissions. The expert report concluded that there was a potential danger to Lliuya’s property, but that there was a low likelihood of an imminent threat, something Lliuya contested. In the absence of such an imminent threat, the appellate court dismissed the case.
Supporters of Lliuya’s claim pointed out that a lack of imminent danger does not mean there’s no threat. As Dr. Friederike Otto, a leading expert in attribution science, noted before the final judgment, "something really strange would need to be going on in the Peruvian Andes for climate change not to have affected the flood risk.”
What’s Next?
Even though Lliuya was unsuccessful in the German courts, the case is still significant. Its legal holdings allowed it to move to the evidentiary phase and provides a pathway for other litigants in Germany and beyond. Indeed, had this case been brought by a different plaintiff with a higher risk, the outcome could have been very different. And, further progress in attribution science, which is advancing rapidly, could lead to more compensatory claims. In fact, several such cases presenting similar arguments have been filed, including Falys v. TotalEnergies in Belgium and Asmania et al. v. Holcim in Switzerland. Mr. Lliuya’s concern for his farm may still prove to be a pivotal catalyst in transnational climate litigation.
This blog post was originally posted on ELI's Vibrant Environment blog: https://www.eli.org/vibrant-environment-blog/no-liability-yet-what-lliuya-v-rwe-ag-means-transnational-climate
