Monica Feria-Tinta is a barrister at the Bar of England & Wales, and a leading advocate in environmental and climate change litigation both in English and international courts.
What do melting glaciers in the Cordillera Blanca, a mountain range in Peru, have to do with RWE, a fossil fuel giant based in Germany? The answer could have profound consequences for the role of climate litigation in tackling the climate crisis.
Saul Luciano Lliuya is a farmer from Huaraz, a city in the foothills of the Peruvian Andes. He and 120,000 other local residents live in constant danger. The melting of glaciers caused by climate change is causing the water levels in Lake Palcacocha above their home, to rise.
In 1941, a huge chunk of glacier fell into the lake. The resulting avalanche claimed between 1,800 and 7,000 lives. Peru’s disaster management agency warns that a flood could occur at any moment.
A trailblazing lawsuit, which a German court is due to rule on this week, has already set a global precedent for corporate climate liability by seeking to hold RWE accountable for its role in the accelerating glacial melt that threatens Lliuya’s hometown of Huaraz.
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Liability of fossil fuel companies
Scientific studies link RWE’s emissions to glacier melt, increasing the risk of catastrophic flooding posed by a rapidly expanding glacial lake above the city.
After filing a case against RWE in 2015 for a portion of the costs required to prevent a future flood, an appeals court in Hamm ruled in 2017 that the case was admissible. This was hugely significant – a landmark decision.
In principle, it means that RWE could be held liable for a share of climate change damages, thereby establishing an historic precedent that fossil fuel companies can be held liable in court for such damages.
RWE is now phasing out its coal-fired power plants as part of efforts to reach net zero emissions by 2040 and argues that a single emitter of carbon dioxide cannot be held responsible for global warming. “If such a claim were to exist under German law, it would also be possible to hold every motorist liable,” it said in a recent statement on the case – an assertion the judge went out of his way to dismiss in March during his opening remarks.
Protection from flood risk
Given how significant this case is to climate litigation, I have been following it closely from the beginning. The 2017 ruling already shifted the dial in terms of holding major emitters accountable for the harms they cause.
The last round of hearings in March this year, focused on the scientific evidence of the risk of flooding for the plaintiff’s property. A key question before the court was the extent to which Lliuya’s home and family are at risk. His lawsuit argues that RWE should contribute its fair share to protective measures, given its role in driving the climate impacts endangering his community.
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During the hearings, scientists representing the plaintiff challenged key findings of a court-appointed expert report, highlighting critical “blind spots.” They argued the report severely underestimated the risk of rockfalls triggered by thawing permafrost and failed to fully account for climate change’s accelerating impacts. The plaintiff’s legal team warned that the flood risk to Huaraz is much higher than acknowledged and urged the court to act accordingly.
Now a final decision in this landmark case, which could cement its significance for future climate damages litigation, is awaited.
Transboundary harm
While climate litigation is a relatively new area of the law, the basis of Lliuya’s case is nearly 90 years old. “Transboundary harm”, or harm that is not contained by geographic borders, is the notion that links pollution originating from one state to the impact it has on property in another.
The concept was introduced in the 1938 Trail Smelter case where, for the first time ever, a party was held liable for damages caused by fumes carried over to another country by the winds from a privately owned factory. It established the principles of transboundary harm and polluter pays.
Lliuya’s case is the first case to apply this principle in the climate change context, making it a definitive moment in the history of climate litigation.
RWE has stated in its defence that it could not be held accountable for providing electricity to the German people, a lawful act. But the courts in Germany held that you can be held accountable if you knew of the deleterious effect, and that since 1958 it has been foreseeable to an optimal observer that increasing C02 emissions would lead to global warming.
‘David versus Goliath’
Speaking to Lliuya’s lawyer, Roda Verheyen, brought into sharp focus the ‘David vs Goliath’ nature of the case. With RWE possessing vast amounts of resources to litigate, the company has embarked on a strategy of deconstructing the case to a painfully granular level. “Death by detail” is how Verheyen put it to me.
This asymmetrical dynamic is typical of climate litigation cases. Yet despite the disadvantages faced by Lliuya and those supporting him, the precedent already set in 2017 has changed the legal landscape forever.
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To date there have been 68 lawsuits filed seeking financial redress for the impacts of climate change. The fossil fuel industry, including oil and gas majors ExxonMobil, Shell, Chevron, ConocoPhillips and BP, has been the target of 54% of them.
Whatever the outcome of Lliuya’s case, we have entered a new age of corporate accountability, one in which major polluters that cause serious harm to the environment can no longer escape the legal consequences.
