Posted by: Frances Lawson
As highlighted in other recent posts on this blog, from the Netherlands to the USA to New Zealand, there is a clear trend for citizens to feel emboldened to take governments to court for a lack of action on climate change. The course less charted until now has been actions against private companies – the actual emitters of greenhouse gases – for the damage caused by their activities. In an indicative court order on 30th November 2017 the appeal court in Hamm, Germany, signalled that it is indeed. A final judgment on the specific facts relating to Lliuya v RWE AG is pending the collection of expert evidence. Regardless of the outcome, the interim statement by the court is likely to excite climate change litigators and activists, while generating jitteriness among large German carbon-emitters, as well as those elsewhere.
Lliuya v RWE AG: The background
There is a cruel injustice in the way that climate change impacts are distributed; the vast majority of those presently affected, and those likely to be most affected at least in the near-term, are those that have played a minimal role in accelerating global warming through anthropogenic emissions. At UNFCCC level, these countries repeatedly call out for sufficient financial resources to mitigate and adapt, to the extent possible, the large-scale devastation that almost seems inevitable. However, progress on financial flows remains sluggish; money matters in politics, and too much is at stake.
Into the hiatus has stepped Saul Luciano Lliuya, supported by environmental NGO Germanwatch. Bypassing political sluggishness, he is suing German energy giant RWE over their contribution to global warming. Saul lives with his family in Huaraz, a small city in the Peruvian Andes situated below a glacial lake. Due to the gradual melting of glacial ice, the lake presents a serious risk of flooding his home (as well as those of hundreds of nearby families). The Peruvian authorities declared a state of emergency in relation to this eleven times between 2009 and 2012. However, despite some action by the government the risk persists. Safeguarding against it is costly, and Mr Lliuya is seeking financial support to implement the preventative measures his family desperately needs.
The less contentious part of the claimant’s case is that the part that climate science has already established; that anthropogenic emissions are responsible for the rapid acceleration of global warming, which in turn plays a substantial role in melting glacial ice. Mr Lliuya’s claim goes on to link these generally accepted facts with the increased flood hazard where he lives. The most avant-garde part of his case is the assertion that because RWE AG are responsible for 0.47% of historic global emissions, they should contribute that proportion of the preventative costs. Should his action succeed in this regard, the implications for other major corporate emitters are obvious.
In legal terms, the claim is essentially one of nuisance and is based on the notion that the lawful use of one’s property should not impair the ability of others to enjoy their own. §1004 of the German Civil Code states:
(1) If the ownership is interfered with by means other than removal or retention of possession, the owner may require the disturber to remove the interference. If further interferences are to be feared, the owner may seek a prohibitory injunction.
(2) The claim is excluded if the owner is obliged to tolerate the interference.
On (1), it is alleged that RWE is the ‘disturber’, and the ‘interference’ it is asked to remove is the risk of flooding. While this risk has not yet materialised – Mr Lliuya’s property has not yet been hit by flooding – there is German case law claims have been allowed to be brought where it is ‘inevitable’ that the risk will lead to damage. Accordingly, the claimant has put forward a wealth of evidence to demonstrate that it is a matter of when, not if, flooding occurs.
Under German law the onus would be on the respondent to prove whether the exception in (2) applies. Proactively, the claimant emphasises that an injunction on RWE’s operations is not being sought (which could increase the extent of the interference that must be tolerated).
At first instance, the District Court of Essen dismissed the claim. First, they found the motion put forward by the claimant to be insufficiently precise as required by the German Code of Civil Procedure. This was easily remedied for the appeal. Second, the defendant was found not to be a disturber ‘due to the absence of adequate and equivalent causation of the impairment’ (p.6), the ‘impairment’ being the flood hazard. The issue of causation lies at the heart of the claim.
The key question is: what test of causation should be applied? In situations where there is a single actor, the ‘but for’ or ‘conditio sine qua non’ test establishes a causal link only if by removing the act the effect would not arise (this is also what is meant by ‘equivalent’ causation). The District Court applied this in a fairly straightforward manner. It stated that for causation to be found:
“the past and future greenhouse gas emissions by the defendant would have to be hypothetically undone, and the supposed flood hazard eliminated as a result.” (p.6)
In other words, an individual emitter is only responsible for an event caused by collective global emissions if by removing its specific emissions the event would not have happened. Given this, it is easy to see why the court was ready to dismiss the claim. If RWE’s 0.47% share of emissions never existed, the remaining emissions would still have accelerated global warming and give rise to the present flood hazard.
The claimant’s submissions, both for the first hearing and for the appeal, disclose two alternativ models of causation, however. First, the claimant suggests that causation is established by virtue of the fact that the defendant’s emissions have increased the risk of flooding. Modifying the ‘but for’ test, he claims that were it not for the defendant’s emissions, ‘the degree and the extent of the flood risk would be lowered’ (p.14, Grounds of Appeal). Arguably, this approach does not play in his favour. Having based the claim on the premise that flooding is inevitable, this could require him to show that the defendant’s emissions tipped the risk of flooding from being ‘highly likely’ to being virtually certain; something incredibly difficult, if not impossible, to establish.
The claimant may be on stronger footing in his second approach, namely that a strict application of the ‘but for’ test is simply not appropriate in this context. Its high threshold is to be relaxed in cases of ‘cumulative causation’, where the relevant interference is caused by the cumulative or additive effect of multiple actors, each adding to the problem but none being necessary for its existence. Applying this to the facts of the case: the sum of all greenhouse gas emissions has led, in a ‘but for’ sense, to the present ‘impairment (inevitable flooding), and some of these stem from the defendant.
This alternative test has a grounding in case law. As far back as 1866 in the Scottish case of Duke of Buccleuch v Cowan, an individual polluter was deemed liable for having ‘materially contributed’ to the pollution of a river, despite the fact that they were just one of many, and that without their involvement the river would nonetheless have been polluted. The claimant cites domestic and international authorities to demonstrate the continuing relevance of this test. Its application often rests on a judgment as to whether it is required to ensure fairness and justice – as put by the Australian High Court in March v Stramare (E&MH) Pty (1991) cited by the claimant. In that case, the court stated: “(the ‘but for’ test) applied as an exclusive criterion of causation, yields unacceptable results and the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations” (para 171). It remains to be seen whether the strict case can be deviated from in this instance.
In addition, German law requires that any legally relevant cause is ‘adequate’. This is essentially the test of ‘reasonable foreseeability’ that is employed in English tort law – is it objectively reasonable that one standing in the position of the defendant would expect their emissions to contribute to the flood hazard?
The District Court found against the claimant on the basis that ”any single emitter, even a major one such as the defendant, does not substantially increase the effects of climate change”. However, this seems untenable in light of the facts. RWE is one of the world’s largest private emitters; it emits more than entire countries, including the Netherlands. Moreover, the claimant cites case law that the ‘adequacy’ test is one of de minimis; in other words, its role is merely to preclude trivial causes. 0.47% of global emissions is not a trivial amount. Furthermore, the impacts of climate change have been well understood for decades; the defendant cannot rely on ignorance of the potential risks of their operations.
The Appeal Court’s view and its significance
So far, the Appeal Court has only released an ‘Indicative Court Order and Order for the Hearing of Evidence’. This sets out the questions of fact that need to be answered by independent experts before a full judgment can be delivered. It does not reveal the court’s view on the legal arguments. For this, we have to rely on Germanwatch’s interpretation of events.
According to Germanwatch, the judges agreed entirely with their interpretation of the law, and in doing so found that RWE could be liable for its partial contribution to the flood hazard, and its emissions are not so insignificant as to be ‘inadequate’. On this basis, the defendant was asked if they would like to settle but they declined. The facts are disputed, and so to help the Appeal court deliver a final judgment, independent experts are being appointed to investigate. Undoubtedly, the most important of these facts is whether there is a causal chain linking the defendant’s emissions to the flood hazard. The District Court dismissed the notion that certain power plants in Western Europe could have a significant effect on the way this system brings about flooding in a remote Peruvian city. After all, the climatic system is so complex and is shaped by El Nino events, sunspots and many other factors beyond climate change.
So caution is necessary, and nothing has yet been decided. Nevertheless, win or lose, this case marks something of a watershed in climate litigation. It suggests that the victims of climate change may finally be able to achieve some redress. It may also accelerate decarbonisation efforts, making them more attractive when the alternative could increase the risk and extent of compensation payouts. The seminal 2017 Carbon Majors Report linked 100 companies with half of all emissions since the industrial revolution, and RWE AG is 41st on that list. While some of the companies on that list are in jurisdictions where a similar lawsuit is highly unlikely at present, this is not the case for all.
From a corporate perspective, the case is deeply troubling. RWE seem to be genuinely taken aback by the lawsuit, feeling unfairly singled out especially given its efforts to become more environmentally friendly. This is also understandable in light of the fact that their emissions are the by-product of an important public purpose; providing energy for people. Moreover, the potential for this case to unlock the floodgates for similar claims makes it highly likely that they will appeal any finding against them.
For further information about the case, see:
– The claimant’s initial Statement of Claim
– The District Court’s judgment
– The claimant’s Grounds of Appeal,
– The Appeal court’s Indicative Court Order
– Germanwatch’s interpretation of the Appeal Court’s view.