Luciano Lliuya v. RWE AG

Summary:

In November 2015, Saúl Luciano Lliuya, a Peruvian farmer who lives in Huaraz, Peru, filed claims for declaratory judgment and damages in the District Court Essen, Germany against RWE, Germany’s largest electricity producer. Luciano Lliuya’s suit, supported by NGO Germanwatch, alleged that RWE, having knowingly contributed to climate change by emitting substantial volumes of greenhouse gases (GHGs), bore some measure of responsibility for the melting of mountain glaciers near his town of Huaraz. Especially, as the melting gave rise to an acute threat: Palcacocha, a glacial lake located above Huaraz, has experienced substantial volumetric increase since 1975, which has dramatically accelerated from 2003 onwards. Luciano Lliuya presented several legal theories in support of his claim, including one that characterized RWE's emissions as a nuisance due to which plaintiff had incurred compensable costs to mitigate. Acknowledging that RWE was a contributor to the emissions responsible for climate change and thus for the lake's growth, Luciano Lliuya asked the court to order RWE to reimburse him for a portion of the costs that he and the Huaraz authorities are expected to incur from setting up flood protections. The share calculated amounted to 0.47% of the total cost - the same percentage as RWE’s estimated contribution to global industrial greenhouse gas emissions since the beginning of industrialization (from 1751 onwards).

The district court dismissed Luciano Lliuya’s requests for declaratory and injunctive relief, as well as his request for damages. The court noted that it could not provide Luciano Lliuya with effective redress (Luciano Lliuya's situation would not change, the court held, even if RWE ceased emitting), and that no “linear causal chain” could be discerned amid the complex components of the causal relationship between particular greenhouse gas emissions and particular climate change impacts.

On November 30, 2017, the appeals court – the Higher Regional Court of Hamm – recognized the complaint as well-pled and admissible, allowing the case to move into the evidentiary phase. Here, it will be determined whether Luciano Lliuya’s home is: (a) threatened by flooding or mudslides as a result of the recent increase in the volume of the glacial lake located nearby, and (b) how RWE’s greenhouse gas emissions contribute to that risk. The appeals court will review expert opinion on RWE’s CO2 emissions, the contribution of those emissions to climate change, the resulting impact on the Palcaraju Glacier, and RWE’s contributory share of responsibility for causing the resulting effects. Due to the ongoing pandemic, the on-site visit has had to be postponed several times and has yet to take place. While the facts of this case must still be adjudicated, the court’s recognition that a private company could potentially be held liable for the climate change related damages of its greenhouse gas emissions marks a significant development in law.

After a long delay, especially due to the coronavirus pandemic, a site visit took place in the Andean city of Huaraz in May 2022. Judges of the Higher Regional Court (OLG) of Hamm (Germany), court-appointed experts and lawyers for both parties travelled to Peru to examine whether the plaintiff's house is threatened by a possible flood wave from the glacier lake Palcacocha above the city. The court-appointed experts will now write an expert report and submit it to the court. An oral hearing to discuss the expert report is expected to occur in 2023.

At Issue: Liability of greenhouse gas emitter for harms arising in different jurisdiction from warming effects of climate change arising in a different jurisdiction.