November 30, 2017
The Case Saúl Luciano Lliuya versus RWE, taking place in the German town of Hamm, has now gone into the evidentary phase. This historic lawsuit, in which a Peruvian farmer has sued a German energy giant, might have consequences for investors and firms around the world that might have to deal with more cases of litigation.
By Arthur Wyns
Hamm (30. Nov. 2017). The decision announced today by the Higher Regional Court Hamm in Germany to enter into the evidentiary stage in the case of Saúl Luciano Lliuya against the german utility RWE is of great legal relevance. It is the first time that a court acknowledged that a private company can be directly held accountable for its share in causing climate damages. This applies if concrete damages or risks for private persons or their property can fully or partly be assigned to the activities of the relevant company.
The legal base for this decision exists in a similar form in more than 50 countries around the world, according to research conducted by the plaintiff’s lawyer Dr. Roda Verheyen (Hamburg). “Today’s decision therefore has far reaching implications on the legal duties of great emitters all around the world“, states the organisation Germanwatch in it’s report on the lawsuit.
From now on, the relevant litigation risk of any investment will have to be communicated to shareholders and adequate financial reserves will have to be built – investors will have to take those risks into account when taking their investment decisions, says Germanwatch.
‘The entering into evidentiary phase in this case in itself is already writing legal history‘, says lawyer Roda Verheyen. ‘The OLG Hamm confirmed its vote of the oral hearing on November 13th: Major emitters of greenhouse gases can be held liable for protective measures against climate damages. 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.’
The plaintiff Saúl Luciano Lliuya was informed of the decision via phone – he had returned to Peru after the oral hearing. ‘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.’
Klaus Milke, Chairman of the Board of the environmental and development organisation Germanwatch, states: ‘We congratulate Saúl Luciano Lliuya. He did not want to be victimised and this precedence has already raised the hopes of many people affected by climate change. Still, it cannot be a long-term solution that the most vulnerable people around the world now have to file legal action for their rights. We are counting now on political action for protecting the affected people and holding the emitters responsible.’
The decision now establishes a solid argument for legal causality. Previous cases gave a negative ruling to this claim before, as was the case with a negative ruling of the Federal Supreme Court on acid rain in 1987.
With the stage of ‘taking of evidence’ now into place, it is now the task of the plaintiff to come up with concrete claims before the court. Is Saúl Luciano Lliuya’s home in fact acutely endangered by a glacier outburst flood? Do RWE’s historical emissions really amount to half a percentage point of global emissions since the beginning of industrialisation? And can it be proven that these emissions contribute to the risk of flooding in Huaraz, and to what extend? These questions will from now on play a central role, in this law case and the ones that will follow it.