Climate Change Litigation: Essen District Court Dismisses Action Brought By Peruvian Farmer

We reported on what appears to be the first major piece of Climate Change litigation in Germany, an action by Peruvian farmer Saul LLiuya against German energy company RWE. To briefly recap:

Saul LLiuya owns property in the city of Huaraz in the Ancash region of Peru. It is located at the foot of the Andes below the Laguna Palcacocha, a natural moraine-dammed lake beneath the Palcaraju glacier. LLiuya alledges that, as a result of the melting of the glacier, the water volume of that lake has increased to a dangerous level. He believes that this has been caused by by global greenhouse gas emissions. For these, he considered RWE be jointly responsible because, according to his estimate, it is causing 0.47% of the world-wide greenhouse gas emissions. Accordingly, RWE should be held responsible for any actual and future costs incurred by him to safeguard his property against floods and mudslides.

In its judgment of 15 December 2016, the Essen District Court (Landgericht) dismissed Lluyia’s action. It held that the main claim and the first two auxiliary claims were already inadmissible (unzulässig), as they were not sufficiently detailed. The plaintiff had failed to specify the defendant’s share of global greenhouse gas emissions; he could not leave it to the court to provide an estimate or determine the share. The claim for payment of EUR 6,384 for protective measures taken by him was held to be unfounded because the danger of flooding that the plaintiff alleged cannot be individually attributed to the defendant as an interferer (Störer) within the meaning of Section 1004 German Civil Code (BGB), as there are countless other emitters of greenhouse gases. If greenhouse gases released by a large number of emitters caused, in a highly complex natural process, the climate change, no linear causal chain between a particular source of greenhouse gases on the one hand and the damage alleged by the plaintiff can be established.

As the matter is a model case supported by various NGOs, the judgment will no doubt be appealed to the Court of Appeals (Oberlandesgericht) Hamm.

District Court (Landgericht) Essen, judgment (Urteil) dated 15 December 2016, file no. 2 O 285/15.

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