In an unprecedented legal battle for climate justice, Peruvian farmer and mountain guide Saúl Luciano Lliuya is suing the energy company RWE  on account of their contribution to climate change, which is causing Andean glaciers to melt and creating a serious risk of flooding or landslides. His family property, 50, 000 others and a large part of his home city of Huaraz  are at risk [1].

Supported by NGO Germanwatch, Lliuya has taken RWE to the Essen Court in Germany, where it was ruled that the case will be heard and will enter the evidentiary stage. The lawsuit argues that the Essen-based company is partly responsible for glacial melting in the Andes and thus also for the danger to his house which lies at the foot of the mountains. It requests that RWE contribute financially to safety measures at the lake above the city, which has grown immensely as a result of glacial melting. The payment requested is proportional to the company’s contribution to climate change. This is the only case of a citizen suing a private company on the basis that it is in principal responsible for its share in causing climate damages. This makes the case a “historic breakthrough with global relevance”, report Germanwatch [2].

The claim is based on § 1004 of the German Civil Code (BGB): “If the ownership is interfered with by means other than removal or retention of possession, the owner may require the disturber to remove the interference. If further interferences are to be feared, the owner may seek a prohibitory injunction.”  

Lliuya is seeking payment from RWE for the cost of disaster defences, and is basing his claims on research which finds RWE - Europe’s biggest singular CO2 emitter - responsible for 0.5% of global anthropogenic emissions since the beginning of industrialisation. The demand made to RWE for climate protection matters is €17.000, relating to 0.5% of the estimated 3.5 million USD needed for constructing a protection dam from potentially disastrous floods, as well as reimbursement for the €6,384 already personally spent by Lliuya for protective measures  .[3]

It remains to be seen to what extent  the court will support the legal claims of causality from RWE’s carbon emissions to global temperature increase to glacial melt to the cost of Lliuya’s flood defences, and whether experts are  in agreement with the quantification of RWE’s liability. Informed of the court’s vote of support  for hearing the case on 13/11/17, Lluyia commented ‘This really is a major success, not only for me but for all the people here in Huaraz and anywhere in the world facing climate risks. The companies that significantly contribute to climate change now also have to take responsibility. As a next step we have to prove the contribution of RWE to the glacier shrinkage in Peru. We still have a long way to go. But as a mountaineer, I am used to long and rocky roads.’ [4]

Lliuya and Germanwatch see the Huaraz lawsuit as a globally symbolic precedent, with the following objectives [5]:

To hold polluters like RWE accountable and incite them to shift to less damaging business models.

To support the claimant and citizens of Huaraz in reducing the risk of a disastrous flood.

To bring about national and international political solutions for protecting those who are most vulnerable to climate change.

To develop new legal mechanisms for people affected by climate change - as a leverate to political solutions.

The "Case of Huaraz" at a glance:  [6]

24.11.2015: Saúl Luciano Lliuya files the lawsuit, which is classified by the District Court Essen as "a legal matter with fundamental significance".

June 2016: In its statement of defence, RWE disputes its own responsibility for climate change induced damage in the Andes and denies that Huaraz even faces a risk of flooding.

24.11.2016: The first oral hearing takes place amid great national and international interest – the decision was adjourned.

15.12.2016: The District Court Essen dismisses the civil lawsuit against RWE.

26.01.2017: Saúl Luciano Lliuya files an appeal before the Higher Regional Court Hamm against the negative ruling of the Regional Court Essen.

13.11.2017: The appeal at the Higher District Court Hamm is scheduled as an oral hearing.

RWE are responsible for 0.5% of anthropogenic greenhouse gas emissions since the beginning of industrialisation [7] [8]. The Carbon Majors Report by Richard Heede examines the cumulative contribution of major institutions to anthropogenic emissions of carbon dioxide and methane from product combustion, flaring, vented CO2, own fuel use, and fugitive methane, and finds 0.47% of global industrial CO2 & CH4 emissions from 1751 to 2010 are attributed to RWE. This is the equivalent of 6.84 gigatonnes of CO2 emissions [7].

As Germanwatch report: “The Intergovernmental Panel on Climate Change (IPCC) links Andean glacial melting back to global climate change. In Huaraz, the danger is imminent: the glacial lake Palcacocha, which lies several kilometres above the city, has grown four times in size since 2003. Climate change has also increased the risk that large pieces of ice will break off the glaciers and fall into the lake. This could cause a massive wave, leading to a devastating flood in the densely settled areas below. The Peruvian disaster protection agency warns that there could be a flood at any moment; the Palcacocha glacial lake is the most dangerous in the region.” [9]