A Peruvian farmer took on a German energy giant – and lost. But the ten-year legal case could be part of a much larger, slower movement.
As Saúl Luciano Lliuya worked high in the Peruvian Andes near his home in the city of Huaraz he started to notice the mountains changing. The glaciers were receding, swelling the size of the mountain lakes and, he began to fear, threatening a flood which could damage his home in the city below.
Blaming the changes on climate change, he sought legal redress from an unlikely source – an energy company based 6,500 miles away in Germany.
He first sued RWE, one of Europe's biggest firms, in 2015, claiming its role in contributing to historic emissions meant that it should contribute €17,000 to the cost of flood defences in Peru. On May 28, after 10 years of legal wrangling, his case was thrown out by a German court. But not before setting what campaigners argue is a significant legal precedent in the realm of climate litigation.
Although the Hamm regional court determined that the risk to Saúl's home was not high enough to justify his claim, for the first time in legal history it has opened the door to the idea that energy companies could be held liable for the cost caused by their emissions.
The risk of a flood
Back in 2015, Saúl's intention was just for his government and the international community to take the impact of emissions seriously. As a farmer and mountain guide he was acutely aware of the changes being caused by climate change. The Cordillera Blanca, the mountain range he lives in, has the highest concentration of tropical glacial lakes in the world. While glacial recession occurs naturally, scientists are clear that climate change has accelerated the process.
Glacial lakes sit below glaciers, in the areas hollowed out by their recession over millennia. Glacial lake outburst floods (GLOFs) occur when the level of a lake exceeds its banks. This can happen in two main ways. First, the glacier melts, increasing the water levels of the lake until the pressure causes it to burst its banks. Or, by a landslide or chunk of the glacier falling into the water, causing it to be displaced.
Saúl, more than most, has reason to be concerned by the possibility of a GLOF. His city Huaraz sits downstream of a glacial lake called Palcacocha. In 1941 it burst its banks, sending water surging through the valley and flooding the city below. Estimates as to the number killed vary, but as many as 5,000 people lost their lives.
According to Germanwatch, an NGO supporting him with the case, Palcacocha has grown more than fourfold since 2003, and 34 times since 1970. A minor flood occurred in 2003, and there have been numerous alerts in the years since. In January last year, an avalanche caused a 3-metre wave which was halted by an existing dam. Locals insist that a larger dam is required to permanently avert the risk to the population.
The case
Despite not operating in Peru, German energy giant RWE was targeted because of its role at the time as one of Europe's largest emitters. According to a 2014 report by the Carbon Majors Project, it contributed to roughly 0.5 per cent of global emissions. Saúl's claim, filed in Essen, Germany, on November 24, 2015, took this into account, requesting RWE made a proportional contribution towards the cost of the dam. This sum came to €17,000.
The court initially threw out the claim in 2016, saying that the link between RWE's emissions and the threat to Saúl's home was too indirect to establish liability. But a year later, a higher court in Hamm allowed an appeal.
After pandemic-related delays and a 2022 site visit to Huaraz, the case was finally heard in March this year. On May 28, the court revealed its decision. Saúl had lost. The direct risk to his home from glacial-related flooding in the next 30 years was only one per cent and not high enough to justify the claim, the court said.
But its longer findings didn't close the door entirely. In a press release published following the ruling, the court confirmed the grounds for the claim. "If there is a threat of adverse effects, the polluter of CO₂ emissions may be obligated to take preventive measures," it read. "If the polluter definitively refuses to do so, it could be determined, even before actual costs are incurred, that the polluter must bear the costs in proportion to their share of the emissions."
It added: "The great distance between the defendant's power plants and the plaintiff's residence in Peru alone was not sufficient reason to declare the lawsuit unfounded."
The science
Saúl's case was underpinned by a growing field of study known as "climate attribution" science. It attempts to establish the extent to which human activities contribute to climate change. A study published in 2013 was one of the first high-profile examples of climate attribution science. It estimated that just 90 companies, many of which were fossil fuel firms, were responsible for two-thirds of emissions since the industrial revolution. But as the methods and data needed for attribution have become more precise, research has become more common. More than 500 studies have attributed extreme weather events to increased gas emissions, according to Zero Carbon Analytics.
There is a broad scientific consensus that global warming caused by climate change has accelerated glacier retreat in Peru and elsewhere. A study of glacial retreat between 2000 and 2023 published in Nature earlier this year found that the rate of ice loss increased by 36 per cent between the first and second periods observed, attributing this to human greenhouse gas emissions. Glacial retreat increases the size of glacial lakes and therefore the risk of GLOFs.
The calculation of the emissions attributable to RWE came from a 2014 study by the Carbon Majors Project, another example of climate attribution science.
Noah Walker-Crawford, a research fellow at the Grantham Institute, which is affiliated with LSE and Imperial College London, said climate attribution science is growing in importance and underpinning a greater number of legal efforts. "The science is giving us a much clearer idea of what the impacts [of climate change] are and who is contributing," he said. "That means a lot of cases are becoming possible that just weren't possible before."
A global precedent
Despite the loss of this case, activists have hailed it as a victory, saying it sets a precedent and that polluters could one day be held liable for the costs of emissions.
Murray Worthy, a senior researcher at Zero Carbon Analytics, said future plaintiffs could point to this decision to argue that their cases should be allowed to proceed. "This is a historic turning point in climate litigation and efforts to seek accountability for large polluters," he said. "By setting a precedent, it enables a new wave of cases to come through."
According to a study by Zero Carbon Analytics, there are currently 43 similar cases currently ongoing. Some 54 per cent of all cases seeking financial redress for the impacts of climate change have targeted the fossil fuel industry. Depending on the level of climate damages estimated, Zero Carbon Analytics estimates that the cost could exceed $38 trillion a year by 2049.
The number of cases seeking climate damages has already increased in the past decade. Some 70 per cent were filed since the Paris Agreement in 2015.
Walker-Crawford said: "The Higher Regional Court of Hamm established a powerful legal principle: corporate greenhouse gas emitters can be held liable for their contribution to climate change impacts."
Sébastien Duyck, senior attorney at the Center for International Environmental Law, said that the judgement "shatters the wall of impunity for major polluters".
"For the first time, a European court has affirmed that climate victims can pursue justice, and polluters can be held legally accountable," he added. The case would provide a "legal spark" to others in the field.
Several other climate litigation cases are currently progressing through the courts. Hugues Falys, a farmer from Belgium who claims his livelihood has been impacted by climate change, is suing TotalEnergies. A group from the Indonesian island of Pari have sued Swiss cement company Holcim for funding for flood defences to mitigate against climate risks. The attorney general of California has also taken action against Exxon Mobil in relation to plastic pollution in the state.
Despite the fact that this ruling was made in Germany, experts argue that the existence of similar legal systems and precedents, particularly in property law, mean that courts in other countries are likely to point to the ruling in future decision making.
Industry running defence
However, RWE did not accept the analysis of the activists, academics and legal experts. Responding to the judgement, a spokesman said that the attempt to use the case to create a precedent holding individual companies responsible "had failed". The spokesman warned that such a precedent would have "unforeseeable consequences" because "claims could be asserted against any German company for damage caused by climate change anywhere in the world".
When asked by European Energy Innovation to explain this reasoning the spokesman said that three other regional courts have taken a different legal view and the Hamm regional court "cannot overrule" these decisions. "The court did not examine and therefore did not rule on whether and to what extent RWE can actually be held legally responsible for the effects of climate change as a result of its emissions," he added.
Germanwatch says that the case failed on "evidentiary grounds", not those of admissibility. "Far from 'closing the door', this in fact leaves it wide open for better-evidenced future cases," it said.
Worthy said that there are probably "unavoidable" financial risks for energy firms. "If large polluters want to avoid these kinds of costs, having in place science-based plans for reducing their emissions in line with the temperature goals of the Paris Climate Agreement is likely to be something that courts would take very seriously," he added. "Those who don't have that really are exposing themselves."
The response from the rest of the industry has been muted so far. Energy UK, the trade body representing the UK's biggest energy firms, said it was aware of the case but had not had any involvement. Another UK trade body and a leading European industry body also declined to comment.
One person who has not been disheartened by the headline loss of the case is Saúl himself. "This case was never just about me," he said in a statement on the day of the ruling. "My case has shifted the global conversation about what justice means in an era of the climate crisis, and that makes me proud."
"Today the mountains have won."