Peruvian farmer takes on Germany's RWE

The case of Peruvian farmer Saul Luciano Lliuya versus German energy company RWE is an example of how the biblical story of David and Goliath might be told anew in the era of climate change.

This more modern version of the tale began in 2014 on the sidelines of the UN climate change conference in Lima. Representatives from the environmental organization Germanwatch had traveled from the Peruvian capital to Huaraz, some 450 kilometers (279 miles) to the north, in the Andes mountains. There, they met with locals who told them how a glacial lake was threatening their very existence.

For years, environmental activists have been trying in vain to use legal means to boost climate protection. But the case of Lliuya, the peasant farmer from Huaraz, has presented them with new possibilities.

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Taking on an energy giant

Lliuya, who is also a mountain guide, has spent years observing how rising temperatures are melting Huaraz's nearby glacier. If the lake it feeds should one day overflow, it threatens to destroy the livelihoods of some 120,000 local residents, including Lliuya. The Peruvian farmer has already invested more than €6,000 ($6,650) in protective measures, but it isn't nearly enough.

In 2014, he met the environmentalists from Germanwatch, and they put him in touch with a German lawyer.

"We support Saul Luciano's lawsuit, because it's a legal test case for the common good," Roxana Baldrich of Germanwatch says.

It could have been brought against dozens of emitters, but it was brought against RWE.

The energy giant, headquartered in the western German city of Essen, is the second-largest emitter of carbon dioxide (CO2) in Europe, spewing more than 100 million tons of it into the atmosphere each year. The fact that the company doesn't operate in Peru is irrelevant, the NGO says.

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The Huaraz case was seen as a near impossible challenge. That was one reason it appealed to Hamburg-based lawyer Roda Verheyen. She prepared the case against RWE, invoking section 1004 of the German Civil Code. The paragraph in question seeks to protect property owners from harmful damage by third parties. There are similar laws in tens of other countries. So if a precedent is set in this case, it could easily be applied elsewhere. But, things didn't go well for Verheyen at first — in 2016, the case was knocked back in the first instance. 

Legal breakthrough

Verheyen's client is suing for 0.47% of the costs he needs for protective measures, which amount to around €17,000.

"That is the share of man-made greenhouse gas emissions RWE has been responsible for since the start of industrialization," Baldrich of Germanwatch says, referring to the Carbon Majors Study, the basis for the lawsuit. For the plaintiff, this is about setting a legal precedent. But that's exactly what RWE wants to prevent.

"Even if we paid him this money, his problem wouldn't be solved," explains RWE spokesman Guido Steffen. The company rejects Lliuya's claim, and Steffen says an out-of-court settlement is also out of the question because "a settlement would also set a precedent."

With Essen District Court's dismissal of the case, all seemed to be lost. But Verheyen appealed, and in November, 2017, there was a breakthrough. The Higher Regional Court in Hamm ruled that the case was well founded and could proceed to gathering evidence.

That was more than the environmentalists had hoped for. For the first time, a causal link — between the company's contribution to global warming and threats to Huaraz — was declared legally relevant.

"And so legal history was written," says Greens politician Claudia Roth, who is involved in the Hauraz case.

 

Calls for more legal protection

Her party is calling for a €100-billion climate protection program that would cover major investments in rail networks and cycle paths, "climate-induced displacement and migration, as well as climate passports for people whose countries are disappearing as a result of climate change," Roth says.

Politicians increasingly recognize that laws must adapt to a climate change era. In 2018, the German government received clear advice from the WBGU, its advisory body of scientists and lawyers, about what should be done. A policy paper, the Just & In-Time Climate Policy, recommended legal protection for people harmed by climate change.

"Companies that contribute to climate change through emissions can legally assert claims for damages if they are forced by state authorities to close their plants," the document says, adding that the legal rights of the — often poor — people affected by massive climate change are uncertain.

The WBGU also recommended that the federal government take on the risk of litigation costs in cases where a legal precedent seems likely.

"Climate lawsuits are like a legal lever for those most affected by the climate crisis," Roth says.

Climate defenders under pressure

It's still unclear whether the Peruvian government will allow the German court to gather evidence locally. As part of the case, an independent expert would have to carry out a scientific evaluation of the Huaraz area.

"They must assess on site whether the flood risk for the inhabitants, including Saul Luciano Lliuya, is already high enough," says Noah Walker-Crawford, a scientist at the University of Manchester in the UK.

Only once this goes ahead can the legal battle begin in earnest. The trial is already putting the plaintiff under tremendous financial strain. After the Hamm court's 2018 ruling that the case could move on to the evidentiary stage, an advance of €100,000 had to be paid to the court to cover expert assessments and travel expenses in Peru. This transfer was paid by the Bonn-based Foundation for Sustainability, which has also shouldered the legal fees and has close ties to Germanwatch. 

Every delay only adds to the pressure the plaintiffs are under. In an interview with DW, Germanwatch accused RWE of engaging in deferral tactics.

"I reject that," a spokesperson for RWE said.

The energy company has twice, albeit unsuccessfully, submitted a counter-statement to the Higher Regional Court. In response, the tribunal has made it clear why it considers the farmer's case to be well founded.

Change just a matter of time?

For RWE, there is more than a legal dispute at stake. The company is undergoing the largest transformation in its history. By 2040, it wants to be climate neutral. And to achieve this, it's investing millions in image campaigns.

At the same time, it rejects any responsibility for climate change-related threats facing farmers in Huaraz. In a statement, the company said there is no provision under current law "for individual emitters to be liable for processes that have a generic cause and a global impact, such as climate change."

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The Huaraz case is due to be presented at the UN climate conference currently underway in Madrid, with lawyers and experts set to discuss the legal scope for landmark lawsuits.

"If there's pressure to sue large companies, then there's also pressure on politicians," says Roxana Baldrich of Germanwatch. If the Huaraz suit does ultimately succeed, it likely won't be the last time this modern-day story of David and Goliath plays out.