In the proceedings instigated by Peruvian farmer Saúl Luciano Lliuya against RWE AG, the Hamm Higher Regional Court today dismissed the plaintiff’s appeal as unfounded.
The plaintiff was unable to provide evidence of a serious threat of damage to his property from a flood wave from an upstream glacier lagoon. Following an extensive hearing of evidence, the court-appointed experts put the probability of flood risk to Mr Luciano Lliuya’s property at “1 per cent over the next 30 years”. From the court’s point of view, there is therefore no reason to investigate the existence of a causal link between RWE’s CO2 emissions and the alleged danger to the plaintiff's property.
The decision of the Hamm Higher Regional Court means that the attempt, supported by German NGOs, to use Mr Luciano Lliuya’s lawsuit to create a precedent for holding individual companies responsible for the effects of climate change worldwide under German law has failed. RWE has always considered such civil 'climate liability' to be inadmissible under German law. It would have unforeseeable consequences for Germany as an industrial location, because ultimately claims could be asserted against any German company for damage caused by climate change anywhere in the world.
The court of first instance ruled that it is impossible to substantiate a motion for injunctive relief against the company, as the individual effects of climate change cannot be traced back to certain emitters due to the large number of polluters. Other German courts have dismissed similar climate lawsuits – for example against Volkswagen, Mercedes-Benz and BMW – in both first- and second-instance proceedings, as injunctive relief cannot be granted against individual polluters if they comply with applicable public law regulations.
This is in line with the legal opinion of RWE, which has always operated its plants in accordance with applicable laws. It would be an insoluble contradiction if the state were to allow CO2 emissions, subject them to detailed statutory regulations and actually call for them in certain cases, while ordering the assumption of civil liability for them retroactively.
The legal procedure has lasted for more than nine years so far.
RWE strategy is in line with Paris climate protection agreement
RWE is one of the world’s leading companies in the field of renewables. The company is decarbonising its business in line with the 1.5-degree reduction pathway - scientifically confirmed by the Science Based Target initiative. Since 2018, RWE has more than halved its CO2 emissions. RWE is the only German company to phase out lignite by 2030. The company will be net zero by 2040.