Lliuya v RWE AG

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.

Facts
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.

State Court
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.

Upper State Court
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 emissions, contribution and impact on the glacier.

Significance
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.