By Ucilia Wang
A German court ruled Thursday that it will hear evidence in a potentially precedent-setting climate change case that pits a Peruvian mountain guide against RWE, Germany’s largest power company.
RWE had convinced a lower court to toss out the lawsuit last December, but the Higher Regional Court Hamm reversed that decision earlier this month and gave both sides until Thursday to submit further argument. Thursday’s ruling by a three-judge panel sends the case to the next phase.
Saul Luciano Lluiya sued RWE in 2015, contending that the company partly contributed to melting a glacier in the Andes Mountains. That raised the level of a nearby lake and increased the likelihood of devastating floods to Luciano Lluiya’s home city of Huaraz, Peru, also home to more than 120,000 people.
The case is unusual because it seeks to hold a major contributor of carbon emissions responsible for the impact of climate change, regardless of where the impact is taking place. RWE doesn’t operate in Peru.
“The entering into evidentiary phase in this case in itself is already writing legal history,” Roda Verheyen, the attorney for Luciano Lliuya, said in a statement. “Now we can prove in a concrete case that RWE contributed and continues to contribute to the risk of a local glacier outburst flood in Huaraz.”
Fossil fuel companies have historically been able to convince courts in different countries, including the U.S., that they can’t be held liable for climate disasters because they weren’t alone in generating emissions. They claimed evidence can’t pinpoint their roles in climate change.
Previous cases typically targeted a group of companies, but the German case could establish evidence that directly connects one emitter to a specific climate disaster. If the court accepts that connection, then the case could give ammunition to similar lawsuits.
“I think that this decision will encourage similar efforts in other countries,” said John H. Knox, U.N. Special Rapporteur on Human Rights and the Environment and a professor of international law at Wake Forest University School of Law. “This case is part of a growing trend to try to hold corporations responsible in their home jurisdictions for human rights abuses and environmental harm that they cause elsewhere. There are difficult legal and factual issues to overcome, of course.”
RWE plans to make the same argument it did previously: German law says one company can’t be responsible for a climate impact, because there are innumerable sources of emissions, said Guido Steffen, a RWE spokesman.
“It’s much too complex to make one single emitter like RWE liable,” Steffen said by phone. “We don’t think it’s correct to apply the civil law to make us liable.”
In his lawsuit, Luciano Lliuya is asking for $20,000 to help the local government build a dam for flood control. The money amounts to roughly 0.5 percent of the project’s cost and corresponds with a study’s estimate that RWE has historically contributed to nearly 0.5 percent of carbon emissions worldwide since the start of the industrial age.
Introducing that figure into evidence will be crucial for Luciano Lliuya, and it will be a major challenge for the plaintiff. The regional court told both sides on Thursday to agree on a set of experts in four weeks. The court has yet to set dates for hearings.
The spokespeople for both sides said they aren’t sure what will happen if they can’t agree on the scientific experts.
The regional court said it expect the experts to answer at least these key questions: is Luciano Lliuya’s home threatened by floods from the melting glacier, and have RWE’s emissions contributed to the glacial melt that increased the risk of flooding in Huaraz?
Steffen said the company is waiting for the court to issue a written decision that will reflect the verbal ruling today and provide more information about additional questions that the court plans to ask.