Litigating for climate justice

| 12th October 2021 |

Airborne over Nuclear Power Plant Isar II, Bavaria, Germany.

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In 2015, Saúl Luciano Lliuya, a Peruvian small-scale farmer, sued the German energy giant RWE, the biggest single emitter of CO2 in Europe.

For us in the valley, the threat is immense.

Saúl Luciano Lliuya v. RWE AG was in November 2017 the first climate change lawsuit in which a court found that a private company could potentially be held liable for climate damages from its emissions, allowing the case to progress to the evidentiary stage.

Saúl Luciano Lliuya, a Peruvian small-scale farmer and mountain guide, decided to take his fate into his own hands and do something about the climate risks that he and his community are facing with support of the environmental NGO Germanwatch and the foundation Stiftung Zukgnftsfähigkeit.

In 2015, he sued the German energy giant RWE, the biggest single emitter of CO2 in Europe. He wants the company to assume its share of responsibility for the adverse impacts of climate change.

This series of articles has been published in partnership with Dalia Gebrial and Harpreet Kaur Paul and the Rosa Luxemburg Stiftung in London. It first appeared in a collection titled Perspectives on a Global Green New Deal.

Court

In this specific case, “adverse impacts” means that, due to climate-induced glacial retreat, a glacial lake above the Andean city of Huaraz has grown in size and threatens to overflow or even break its dam.

The plaintiff’s property - along with large parts of the city - is at risk of a devastating flood that would affect around 50,000 people.

Saúl Luciano requests the court to determine that RWE is liable, proportionate to its historical GHG emissions, to cover the expenses for appropriate safety precautions.

This could mean, for example, paying part of the cost of a much bigger dam and/or a pumping system at the glacial lake.

Plaintiff

The plaintiff himself explains his motivation for the lawsuit as follows: "Every day, I see the glaciers melting and the lakes in the mountains growing. For us in the valley, the threat is immense.

"We cannot simply wait and see what happens. For me, RWE is partly responsible for the risks that threaten us in Huaraz.

"According to scientific studies, the lake above my hometown is growing because of accelerated glacier melting. RWE is one of the world’s biggest emitters."

Responsibility

He adds: "But so far, these companies have not assumed any responsibility for the consequences of their emissions.

"You don’t have to be a legal scholar to see that this is wrong. That is why we demand that they now at least install flood protection at our glacier lake.

"And even better, that they should stop contaminating the climate in the future so that all people can survive.

"We used to be powerless, but we aren’t anymore. This is about our protection and about justice."

Saúl Luciano is aware that his plight is not an isolated one. He hopes that his lawsuit will set a precedent and benefit others who are threatened or impacted by climate change.

Precedent

The final goal of climate change lawsuits is the establishment of global corporate legal accountability as well as global political responsibility for climate change.

In order to contribute to that goal, Saúl Luciano and his lawyer wanted to create a ‘test case’ that would be replicable in many other countries.

Therefore, their claim is based on the general nuisance provision under German civil law (§1004 BGB).

Nuisance is one of the oldest and most widely used causes of action, and provisions similar to §1004 exist in many other jurisdictions.

Development

What is more, it can be used both, when there is a risk of nuisance or actual nuisance.

Applied to climate change lawsuits, this means that it can be used to ask for the financing of adaptation measures, or for compensation for climate harms.

While the facts of the “Huaraz Case” are still being evaluated in the ongoing evidentiary phase, the court’s recognition that a private company could potentially be held liable for the climate change related damages of its emissions marks a significant development in law.

This might inspire other plaintiffs to make similar claims, or other judges to take similar decisions.

This Author

Roxana Baldrich was, until recently, policy advisor for climate risk management at Germanwatch, based in Bonn, Germany.

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