Lliuya v RWE AG

Lliuya v RWE AG
Court	Oberlandesgericht Hamm
Case history
Prior action	(2015) Case No. 2 O 285/15
Keywords
Tort, climate damage, glacier, nuisance

Lliuya v RWE AG (2015) Case No. 2 O 285/15 (Essen Oberlandesgericht) is a German tort law and climate litigation case, concerning liability for climate damage in Peru from a melting glacier, against Germany's largest coal burning power company, RWE, which has caused approximately 0.47% of all historic greenhouse gas emissions. It is currently on appeal in the Upper State Court, Oberlandesgericht Hamm.

Lliuya, a Peruvian farmer from Huaraz, population 12,000, claimed against RWE, Germany's largest electric company, that it knowingly contributed to climate damage by emitting GHG, and was partly responsible for melting mountain glaciers near his town. This meant Palcacocha, a glacial lake, had increased in size since 1975, and accelerated since 2003. The emissions were a nuisance under the German Civil Code, BGB §1004, and RWE should reimburse a portion of costs incurred to establish flood protection, namely 0.47% of total cost, given RWE's annual contribution to GHG emissions.

The Essen Landesgericht dismissed Lliuya's claim for an injunction and damages. It stated that it could not provide effective redress, because Lliuya's situation would be the same even if RWE stopped emitting and there was no 'linear causal chain' within the complex causal relationship between particular emissions and climate change impacts. RWE was not a 'disturber by conduct' under BGB §1004, and given the number of contributors to climate change, attributing individual damage to specific actors was impossible.

The Oberlandesgericht Hamm, on 30 November 2017, said the claim was admissible. It would go to evidential phase on whether Lliuya's home is (a) threatened by floods or mudslides (b) how RWE contributed. It will review expert opinion on RWE CO₂ emissions, contribution and impact on the glacier.

This is the first case to potentially hold fossil fuel corporations directly responsible in tort for the damage they knowingly cause through releasing greenhouse gases and making profit. If Lliuya is successful in German law, the principle would apply to all other companies responsible for releasing greenhouse gas emissions and the damage they cause, and could be applied in similar ways in all countries' tort laws.^[1]

• EU law
• Urgenda v State of Netherlands (20 December 2019) duty of state to cut emissions in line with Paris Agreement and right to life
• Neubauer v Germany (24 March 2021) 1 BvR 2656/18, duty on state to reduce carbon emissions faster than government required in Act to protect right to life and environment
• Smith v Fonterra Co-operative Group Ltd [2021] NZCA 552 duty of oil and power companies in tort to pay for climate damage
• Milieudefensie v Royal Dutch Shell (26 May 2021) duty of oil company in tort to cut emissions in line with Paris Agreement and right to life
• McGaughey and Davies v Universities Superannuation Scheme Ltd [2022] EWHC 1233 (Ch), directors' duties to plan to divest fossil fuels in light of Paris Agreement and right to life

• Lliuya v RWE AG on the Sabin Center database
• D Collyns, Climate change has turned Peru's glacial lake into a deadly flood timebomb' (2018) Guardian