Climate Change Litigation: Hamm Court of Appeals to Take Evidence in LLiuya vs. RWE

450px-Lago_Palcacocha_2002We had reported on the first instance proceedings in the Essen District Court (Landgericht) brought by Peruvian farmer Saúl Lliuya against German energy giant RWE, which resulted in a dismissal of Lliuya’s claim to hold RWE liable for climate change-related damages he might suffer. LLiuya owns property in Huaraz, Peru and argues that this property is exposed to a high risk of flooding and earth slides as a result of the local glacier melting and the water volume in a lagoon above his property increasing dramatically.

The matter was appealed to the Court of Appeals (Oberlandesgericht) Hamm. Last week, following an oral hearing on 13 November 2017, the Court of Appeals Hamm has issued a press release and took the German legal community somewhat by surprise: It announced that the matter will proceed to the taking of evidence.

The Court first pointed out that in its current legal assessment, LLiuya’s claim is both admissible and sufficiently substantiated. Lliuya’s primary claim is for a declaratory judgment that RWE is obliged to reimburse him for expenses for measures protecting his property against flooding and landslides. In the court’s opinion, even a party that acts lawfully can be held responsible for the damage caused by it to the property of others. This fundamental legal concept also applies to the parties in the present case.

The court has ordered evidence is to be taken by means of a court-appointed expert. The expert is to address the following contentions of fact on which the plaintiff relies:

“As a result of the considerable increase in the expanse and water volume of the Palcacocha Lagoon, there is a serious threat that plaintiff’s property located below the glacial lagoon will be affected by flooding and/or a mudslide.

The CO2 emissions released by defendant’s power plants rise into the atmosphere and, due to the laws of physics, lead to a higher density of greenhouse gases in the entire atmosphere.

The compression of the greenhouse gas molecules resulted in a reduction in global heat radiation and a rise in global temperature.

As a result of the local increase in average temperatures, the melting of the Palcaraju glacier accelerates; the glacier loses expansion and retreats, the volume of water in the Palcacocha Lagoon increases to a level that its natural moraine can no longer retain.

Defendant’s share in the chain of causation shown under a) to c) is measurable and calculable. It amounts as of today to 0.47%. Any share in the chain of causation determined differently shall be quantified accordingly by the expert.”

The order on the taking of evidence cannot be challenged or appealed independently, but the parties can submit further briefs commenting upon the order and try to persuade toe court to change or amend it. This will certainly happen. In addition to this exercise, the parties will no doubt engage in lengthy discussions about whom to appoint and the methodology that the expert is to apply. Don’t expect results any time soon.

The photo by Georg Kaiser shows the Palacocha glacier and lagoon in 2002.

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