{"id":5302,"date":"2017-12-07T14:54:21","date_gmt":"2017-12-07T19:54:21","guid":{"rendered":"http:\/\/blogs.law.columbia.edu\/climatechange\/?p=5302"},"modified":"2023-03-13T11:37:57","modified_gmt":"2023-03-13T16:37:57","slug":"the-huaraz-case-lluiya-v-rwe-german-court-opens-recourse-to-climate-law-suit-against-big-co2-emitter","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2017\/12\/07\/the-huaraz-case-lluiya-v-rwe-german-court-opens-recourse-to-climate-law-suit-against-big-co2-emitter\/","title":{"rendered":"The Huaraz Case (Lluiya v. RWE) – German Court opens Recourse to Climate Law Suit against Big CO2-Emitter"},"content":{"rendered":"

By\u00a0Dr. Will Frank\u00a0[1]<\/a><\/p>\n

Editor\u2019s note: Lluiya v. RWE, now pending in the courts of Germany, is a noteworthy litigation concerning the potential liability of greenhouse gas emitters for the damages caused by climate change.\u00a0 The blog below presents an analysis of the case from the point of view of a lawyer who is working with the plaintiff.\u00a0 We also invited defendant\u2019s counsel to submit an analysis from their point of view.<\/em><\/p>\n

1. First International Climate Litigation Case Based on Private Law Liability<\/strong><\/p>\n

Can big emitters of GHGs possibly be held liable for nuisance caused by climate change to private property? In an oral hearing on 13th November, the Oberlandesgericht (Civil Court of Appeals) of Hamm (Germany) answered the question of possible legal responsibility of a big GHG-emitter for climate damage\/nuisance \u00a0in the affirmative.<\/p>\n

<\/p>\n

Saul Luciano Lluiya, the plaintiff, is a Peruvian citizen. His house is located in the town of Huaraz in a valley underneath Lake Palcacocha, a glacial lagoon. He asserts that CO2 emissions of power plants operated by the defendant have contributed\u00a0 to climate warming and thereby to accelerated glacial melting and the rising water level of the glacial lagoon, by which the safety of his house is endangered. He claims that at any time big chunks of ice from the Palcaraju Glacier above the lagoon may break off and trigger a huge Glacial Outburst Flood that may destroy his house.<\/p>\n

RWE, the defendant, is a German electric power company, the biggest in Europe.\u00a0 Based on the so-called Carbon Major\u00b4s Report (https:\/\/carbonmajors.org\/<\/a>), RWE is responsible for 0.47 % of global CO2 emissions. Because of defendant\u2018s contribution to global warming and it effects, the plaintiff asks the defendant to make an equivalent contribution to the costs for security measures to protect his house against the flooding risk.<\/p>\n

The plaintiff applies for a declaratory judgement determining,<\/p>\n

“that the respondent is liable, proportionate\u00a0to its level of impairment of\u00a0 0,47 % to cover the expenses for appropriate safety precautions as undertaken by the plaintiff or third parties to protect the claimant\u00b4s property from a glacial lake outburst flood from Lake Palcacocha insofar as the claimant is afflicted with such costs.”<\/em>[2]<\/a><\/p>\n

The court of first instance, the Landgericht Essen (Regional Civil Court)[3]<\/a>, \u00a0denied \u00a0this claim in 2016. Although acknowledging, that “in all likelihood, in the case of a flood wave, the house of the plaintiff would be flooded” and that “scientifically” climate change might be responsible, it rejected the claim on legal grounds notably with respect to legal causality. In essence the lower court argued that because of the complexity of climate change, specific\u00a0 impacts of climate change could not be attributed to individual emitters, and since everyone emits\u00a0 greenhouse gases, no single emitter could be held liable. Accordingly the court dismissed the claim without taking evidence about partial causality of the GHG emissions from the defendant\u00b4s power plants for the danger of being flooded to which the\u00a0 plaintiff\u00b4s property is exposed.<\/p>\n

In its oral hearing on 13th November the Court of Appeals of Hamm disapproved the lower court\u00b4s reasoning that the law would not cover climate change impacts. On 30th November the Court of Appeals issued an order that evidence shall be taken through expert opinion with respect to the following questions[4]<\/a> — whether:<\/p>\n

(1) Because of the significant increase of the expansion and the volume of the Palcacocha Lagoon there is a serious imminent interference of the plaintiff\u00b4s property underneath the lagoon being flooded or exposed to a mudslide.<\/p>\n

(2) a) CO2-emissions release by poswer plants of the defendant rise into the atmosphere causing as to law of physics a higher atmospheric concentrations of GHGs.<\/p>\n

\u00a0 \u00a0 \u00a0 b)\u00a0The higher concentration of GHG molecules causes a decrease in the escape of heat from the earth, which in turn causes a rise of global temperature.<\/p>\n

\u00a0 \u00a0 \u00a0 c)\u00a0Because of the consequential rise of mean temperatures also locally, there is accelerated\u00a0 melting of the Palcaraju Glacier, the size of the retreating glacier diminishes, and the volume of the water increases so much that it cannot be held back by the natural moraine.<\/p>\n

\u00a0 \u00a0 \u00a0 d) The proportion of the partial causation with respect to the causal link as to a) to d) is measurable and calculable. It adds up to 0.47 % today. A different proportion of partial causality, if observed, \u00a0shall be determined and stated by the expert.<\/p>\n

2<\/strong>.\u00a0Legal questions concerning the Huaraz-Case in a nutshell<\/strong><\/p>\n

2.1. Justiciability<\/strong><\/p>\n

Can courts decide such a case at all, or should it be left as a political question to government and parliament to regulate climate liability, because of the far reaching political and economic implications of the attribution of loss and damage caused by climate change to particular GHG emitters?<\/p>\n

The Court of Appeals of Hamm accepted justiciability following the line of reasoning by courts in other countries in climate law cases.[5]<\/a> It found there was no violation of the principle of separation of powers as laid down in Art. 20 Sec. 2 GG (German Basic Law), concluding that the case can be decided on the basis of existing laws, namely \u00a7 1004 BGB (German Civil Code).[6]<\/a><\/p>\n

In this context the court cited from the Motives of the BGB the following excerpt:<\/p>\n

“We are living at the bottom of an ocean of air. This situation necessarily leads to an extension of the effects of human activities to remote places. Everybody who is causing the existence of imponderables must know that they are taking their own way. This transmission beyond borders is to be attributed as a consequence of such activities and direct and indirect emissions are in this respect not to be distinguished from each other.”<\/em>[7]<\/a><\/p><\/blockquote>\n

The court deemed that this consideration applies also to GHG-emissions and their effects.<\/p>\n

2.2<\/strong>.\u00a0International jurisdiction<\/strong><\/p>\n

The courts of which country have competence to decide a climate litigation case, which has relations to different countries? The courts of the country of origin of the damage (Germany as the place where the GHGs are or were emitted) or of the country where damages due to climate change materialize (in this case Peru)?<\/p>\n

According to \u00a7 32 a ZPO (German Procedure Code), local jurisdiction in environmental cases lies with the courts at the place of origin of damage (not the place where the damage accrues). This rule applies analogically to international jurisdiction when a case has a connection to different States (Peru and Germany). Hence German courts have jurisdiction in the Huaraz Case according to German procedural law.[8]<\/a><\/p>\n

2.3.<\/strong>\u00a0Conflict of Laws<\/strong><\/p>\n

The law of which country (Germany or Peru) governs the case with respect to substantive law questions?\u00a0 A question to be distinguished from the preceding one concerning jurisdiction. It refers to the problem of the applicable law under the rules of Private International Law or in Anglo-American terminology Conflict of Laws.<\/p>\n

According to Art 7 Rom II, the European Regulation concerning the applicable law with respect to non-contractual obligations, in principle the substantive law of the place where a damage accrues applies. Rom II is a so-called “loi uniforme” which governs also cases with non-European relations.[9]<\/a> This would mean that Peruvian Law should be applied to decide the Huaraz Case. However Art 7 Rom II allows the plaintiff to base his claim alternatively on the law of the origin of the damage\/nuisance (Germany), which the plaintiff in the Huaraz Case has done.<\/p>\n

2.4.\u00a0Substantive Law<\/strong><\/p>\n

What then are the concrete legal provisions and rules of substantive German law a German court has to apply in the Huaraz Case?<\/p>\n

Primarily the claimant draws upon \u00a7 1004 BGB, the general provision in German Civil Law concerning private nuisance, which reads as follows[10]<\/a>:<\/p>\n

(1)\u00a0If property is interfered with by means other than removal or retention of possession, the owner may require the disturber to<\/em>remove the interference. If further interferences are to be feared, the owner may seek a prohibitory injunction.<\/em><\/p>\n

(2)\u00a0The claim is excluded if the owner is obliged to tolerate the interference.<\/em><\/p>\n

\u00a7 1004 BGB is not supplanted by other special regulations with respect to environmental nuisance or damage caused by emissions:<\/p>\n

\u00a7\u00a018 Umwelthaftungsgesetz (German Environmental Liability\u00a0 Act) explicitly provides that liability under the provisions of this special law does not exclude liability\u00a0 as to other laws. This is different as regards the US Clean Air Act, which according to its interpretation by US Federal Courts displaces Federal Common Law concerning nuisance.[11]<\/a><\/p>\n

\u00a7\u00a014 Bundesimmissionsschutzgesetz (Federal Law Concerning Protection against Emissions) applies only with respect to negative effects of emissions within Germany \u00a0because operating licenses are not effective extraterritorially under International Public Law.<\/p>\n

In addition the plaintiff \u00a0bases his claims with respect to a compensation of costs incurred to enhance the safety of his house on the principles of agency of necessity (\u00a7\u00a7 683, 670 BGB)\u00a0 \u00a0and unjust enrichment (812 BGB).<\/p>\n

2.5.\u00a0The causality question<\/strong><\/p>\n

The causality question lies at the heart of the case. Is it possible to establish legally relevant causality in climate litigation cases? The Court of Appeals of Hamm takes this position.<\/p>\n

2.5.1.<\/strong>\u00a0General remarks<\/strong><\/p>\n

Problems concerning causality in climate law cases \u2013 and this seems to hold likewise for private law and for international law liability \u2013 relate in essence to the following points:<\/p>\n