Unique climate lawsuit before the Higher Regional Court in Hamm – Saúl Luciano Lliuya demands corporate liability of coal company RWE for climate risks

Kläger Saúl Luciano Lliuya beim Gletschersee Palcacocha, der aufgrund der Gletscherschmelze im Zuge des Klimawandels größer wird.

Featured image: Foto: Walter Hupiu Tapia / Germanwatch e.V.

by Alexa Schurer and Giacomo Sebis

On 17.03.2025 and 19.03.2025, oral hearings will take place before the Hamm Higher Regional Court in the groundbreaking case brought by Peruvian farmer Saúl against the energy company RWE. These proceedings are the first to deal with possible liability issues of companies for their contribution to the climate crisis. Following the successful admission of the lawsuit to trial and the comprehensive gathering of evidence in the spring of 2022, the next significant stage in the proceedings will now follow.

1. Background information

On November 24, 2015, the Andean farmer and mountain guide Saúl Luciano Lliuya from Peru filed a lawsuit against the energy company RWE at the Essen Regional Court. The reason: his home town of Huaraz is threatened by a tidal wave due to global warming. Saúl and the 50,000 other inhabitants of the town are worried about the growth of a glacial lake. As the glacier melts, an ice avalanche could cause the lake to overflow and ultimately trigger a tidal wave. “The question is not whether a tidal wave is imminent, but when and how badly it will hit us,” says Saúl Luciano Lliuya. More than half of the glacier ice in Peru has already melted in the last 50 years. Climate change is also creating challenges for agriculture in Huaraz, as adapting to the changing climate is difficult.

2. Why the lawsuit (specifically) against RWE?

As one of the largest CO2 emitters in Europe, the coal company RWE is a major contributor to the climate crisis. This means that the company is also increasing the likelihood of a climate catastrophe in Huaraz. Saúl wants to use the lawsuit to obtain a contribution from RWE towards the costs of protective measures against flooding in the city. The protective measures include, for example, dams and an early warning system for flood waves. The total cost of these measures amounts to around four million US dollars. As the coal company RWE is responsible for an estimated 0.47% of global CO2 emissions since the beginning of the industrial age, it is expected to contribute an equal share of the total costs, the equivalent of 21,000 euros. However, RWE does not consider itself responsible for payment: “Individual emitters are not liable for universally valid and globally effective processes such as climate change.”

3. What has the process been like so far?

The proceedings began with Saúl’s lawsuit against RWE before the Essen Regional Court on November 24, 2015 – a good ten years ago. With the arguments mentioned above, Saúl – supported by Germanwatch and represented by the well-known climate lawyer Roda Verheyen – attempted to establish liability on the part of RWE. However, on December 15, 2016, the regional court dismissed the claim. The main reason for this was that it was difficult to establish a causal relationship between RWE’s greenhouse gas emissions and the increasing climate risks in Huaraz, i.e. RWE’s emissions were not directly responsible for the climate risks there. An individual attribution of climate risks to the detriment of RWE was therefore rejected.

Saúl lodged an appeal against this on 24.01.2017 before the responsible Hamm Higher Regional Court. In November 2017, the court decided to consider the appeal admissible. This fact alone is significant in terms of legal history: this is the first time that a lawsuit has been admitted in which the complex legal issues surrounding corporate responsibility for climate risks could be negotiated in detail. These proceedings could also set a precedent for future climate lawsuits and contribute to international climate justice.

In a decision dated November 30, 2017, the Hamm Higher Regional Court then also decided to take evidence in order to prepare the facts of the case in more detail. To this end, an expert was appointed in the following months, who carried out a site visit to Peru in May 2022 with a number of judges from the Hamm Higher Regional Court. The expert submitted his report in August 2023. The questions raised were as follows:

  • Is there a serious threat of impairment to the plaintiff’s house property?
  • To what extent have climate change and the CO2 emissions released by RWE contributed to this impairment?

On 04.02.2025 then the dates for the oral hearings on 17.03.2025 and 19.03.2025 were announced.

4. What is special about Saúl’s climate lawsuit?

Saúl’s main concern is to establish RWE’s responsibility for the above-mentioned climate risks. From a legal perspective, it is necessary for RWE to have a statutory obligation to pay for risks and damages. Accordingly, it is necessary to be able to show in concrete terms by means of an applicable provision that such a liability obligation exists.

The legal justification is therefore essential. Saúl relies mainly on Section §1004 of the German Civil Code. This provision normally deals with disputes between property owners, for example when overhanging trees, falling fruit or other things negatively affect a property or restrict its use. In these cases, the owner of the affected property is entitled to have the disturbance removed or to cease and desist.

This basic idea is taken up innovatively in Saúl’s proceedings: Instead of a classic neighborly relationship with neighboring or closely located properties, the aim here is to eliminate or refrain from disturbing a property over long distances. Thus, a “global neighborly relationship” is to apply, through which an obligation of RWE to compensate for climate risks in other countries is to be constructed. In this respect, Section §1004 of the German Civil Code is to be used for a rather unusual situation in order to create liability obligations here.

However, this is complex for numerous reasons. The most important thing will be to clarify whether RWE’s emissions can actually be a concrete contributory cause of a possible glacier melt in Huaraz – in other words, whether RWE’s emissions can have an adverse effect on Saúl’s land. It would therefore first have to be established whether greenhouse gas emissions actually lead to glacier melting in Huaraz. It is also quite difficult to prove that the greenhouse gas emissions of a specific emitter lead to a specific risk – there are many emitters, their contributions are mixed in the air and are sometimes very small, and it is therefore not entirely clear who is ultimately responsible. This makes it difficult to make a concrete allocation to specific issuers.

Nevertheless, the plaintiff is facing up to these challenges. According to the plaintiff, the main reasons given for this are that modern scientific methods now make it possible to establish a link between CO2 emissions and certain climate risks – in this case CO2 emissions and glacier melting. RWE’s actions are therefore scientifically causal and also typical and foreseeable in relation to the climate risks in Huaraz. In addition, RWE should not pay the entire costs for the climate-related adjustments – rather only a proportionate share of its global CO2 emissions, so that liability is limited in line with the interests of the parties.

5. What can the parties to the proceedings expect?

The hearings will take place on both days in room A-006 of the Hamm Higher Regional Court and are open to the public. It is to be expected that the arguments listed above will be discussed. In addition, the results of the expert opinion are likely to be discussed intensively. In this respect, the foundations could be laid here for a great opportunity to take global climate justice into account. Due to the fundamental importance of these trials, there is likely to be a media rush – and numerous events are planned around the hearing days in March to increase media attention for these historic proceedings.

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