Saúl Luciano Lliuya v. RWE AG was in November 2017 the first climate change lawsuit in which a court ruled that a private company could potentially be held liable for climate damage from its emissions, allowing the case to move forward to the evidence.
Saúl Luciano Lliuya, a small Peruvian farmer and mountain guide, decided to take his destiny into his own hands and do something about the climate risks he and his community face with the support of the environmental NGO Germanwatch and the foundation Stiftung Zukgnftsfähigkeit.
In 2015, he sued German energy giant RWE, the largest single emitter of CO2 in Europe. He wants the company to assume its share of responsibility for the negative impacts of climate change.
This series of articles was 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.
In this specific case, “negative 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 complainant’s property – as well as large parts of the city – is threatened with devastating flooding that is estimated to affect around 50,000 people.
Saúl Luciano is asking the court to determine that RWE is responsible, in proportion to its historical GHG emissions, to cover the expenses related to the appropriate safety measures.
This could mean, for example, paying part of the cost of a much larger dam and / or pumping system at the glacial lake.
The plaintiff himself explains his motivation for the trial as follows: “Every day I see the glaciers melt and the lakes in the mountains grow. For us in the valley, the threat is immense.
“We can’t just 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 due to the accelerated melting of glaciers. RWE is one of the biggest emitters in the world.”
He adds: “But so far these companies have not taken any responsibility for the consequences of their emissions.
“You don’t have to be a legal expert to see that this is wrong. That’s why we demand that they at least now install flood protection on our glacial lake.
“And even better, that they stop contaminating the climate in the future so that everyone can survive.
“We used to be helpless, but we are not anymore. This is about our protection and justice.”
Saúl Luciano is aware that his fate is not isolated. He hopes his trial will set a precedent and benefit others who are threatened or affected by climate change.
The ultimate goal of climate change lawsuits is the establishment of global corporate legal accountability as well as global political accountability for climate change.
In order to contribute to this objective, Saúl Luciano and his lawyer wanted to create a “test case” which would be reproducible 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 similar provisions in § 1004 exist in many other jurisdictions.
In addition, it can be used both, when there is a risk of nuisance or actual nuisance.
Applied to climate change lawsuits, this means it can be used to seek funding for adaptation measures, or compensation for climate damage.
While the facts of the “Huaraz case” are still being assessed in the current evidence phase, the court’s recognition that a private company could potentially be held liable for climate change damage from its emissions marks an important evolution of the law.
This could inspire other plaintiffs to make similar claims, or other judges to make similar decisions.
Roxana Baldrich was, until recently, Policy Advisor for Climate Risk Management at Germanwatch, based in Bonn, Germany.