The scenery was spectacular: the bright blue Lake Palcacocha glistened in the sun in front of a huge wall of rock and ice hundreds of meters high, the front of a glacier stretching back over the snow-capped peaks. The beauty of the scene belied its instability. If an avalanche were to fall into the lake, experts warn that floodwaters could rush down to the city of Huaraz below. The unlikely team was deep in the mountains to gather evidence in a high-stakes lawsuit brought by a Peruvian farmer, Saúl Luciano Lliuya, against RWE, Germany’s largest utility company. Since the emissions produced by RWE worldwide during its 124-year history have contributed to the warming that is shrinking the glacier, the farmer argues, the company should help pay for the defense to protect Huaraz, his homeland. RWE never had any business in Peru. But it is one of Europe’s 10 biggest polluters, according to a major 2014 study, accounting for 0.47 percent of cumulative global industrial carbon and methane emissions between 1751 and 2010 — the effects of which do not respect national borders. Therefore, in a lawsuit filed in Germany in 2015, Luciano Lliuya said the company should pay for 0.47 percent of Huaraz’s protection costs — about 20,000 euros. RWE says the claim has no basis in German law and that it is judicially impossible to attribute specific local effects of climate change to a single company. Luciano Lliuya’s action, which has been funded entirely by donations, is much more than compensation. The dispute, now nearing its final stages, is a landmark case – seen by many academics, activists and judges around the world as a potential moment that could lead to a wave of compensation claims for climate-related disaster . “If this case is successful, I have no doubt that there will be a number, possibly a large number, of additional court cases,” says Christoph Bals, policy director of the non-profit Germanwatch, which supports Luciano Lliuya. It is just one of the major climate lawsuits filed in the six years since the Paris Agreement was signed. The accord – in which more than 190 countries agreed to limit global warming to well below 2 degrees Celsius – provided new legal ammunition for activists and environmentalists as domestic courts are called upon to interpret what the treaty obliges individual countries to do. Lawyer Roda Verheyen, her client Saúl Luciano Lliuya and climate litigator Noah Walker-Crawford walk in Huaraz during an evidence gathering trip in May © Walter Hupiu Tapia/Germanwatch eV Recent victories — such as a French court ruling in 2021 that the government must do more to cut emissions — have emboldened activists, and funding for climate cases is increasingly available. There is also widening acceptance in many jurisdictions of the need to curb warming: in a 2021 ruling, a court in the Netherlands ruled that oil major Royal Dutch Shell had a duty of care to Dutch citizens and must make steeper emissions cuts. While the amount Luciano Lliuya is seeking is little more than a rounding error for a company like RWE, which had a turnover of €24.5 billion in 2021, a precedent-setting win would expose other polluters to the risk of similar claims from Worldwide. people, possibly for much larger sums. The justices’ decision will “influence the thinking” of judges elsewhere, who “see climate cases coming into their courtrooms and[are]looking for guidance,” says Michael Burger, executive director at the Sabin Center for Climate Change Law at Columbia University in New York. Even if Luciano Lliuya’s challenge fails, the architecture of the case will be there for others to learn from, at a time when demands from poor nations for climate-related financial support are growing louder. The RWE case is the first transnational lawsuit of its kind to go that far and is believed to be the first time a resident of one country has sought compensation from a polluter based elsewhere. “Eventually there will be a brave court that will order compensation,” says Sophie Marjanac, a lawyer at environmental law charity ClientEarth. It could be “impossible to estimate or place a limit on this obligation . . . Here’s why [companies are] I resist incredibly hard.” The fight reflects a dark reality: those most affected by climate change have often done little to cause it and feel abandoned by big polluters who say they are not doing enough to help them deal with its effects. “When we took this case in 2015, everyone said we were crazy,” says Luciano Lliuya’s German lawyer, Roda Verheyen. “Science only works to our advantage. . . I don’t think I’ve ever been so optimistic.” Even if the farmer loses, he adds, the question of who is responsible for the damage caused by climate change will not “go away.”
The case for the plaintiff
To have any chance of winning, Luciano Lliuya’s legal team must first show that the threat to his property is significant and imminent. That’s what scientific experts appointed by Germany’s Hamm district court gathered during a week-long visit in May under the supervision of the German judges who will rule on the case. The scientists took soil samples and recorded measurements. A drone flew up to the ice wall — which was theoretically accessible by boat, but “too dangerous” to approach because of the risk of falling ice, says Martin Mergili, a geomorphologist who has supported Luciano Lliuya’s team. The lawsuit claims that the glaciers around Lake Palcacocha have become unstable, increasing the risk of dangerous floods in Huaraz © Walter Hupiu Tapia/Germanwatch eV They worked to the sound of occasional cracking. “It’s not a constant noise, but from time to time . . . small avalanches of ice are coming down,” says Mergili. Sometimes the sound is “shocking”. According to people familiar with the case, RWE disputed and tried to discredit the climate science presented to the German court by Luciano Lliuya’s team during the case, much of which is being held behind closed doors. In a statement to the FT, the company says it “should be allowed to disagree about the studies and whether or not they are relevant to the case. . . We do not deny climate change and that man has and continues to have an influence on it.” In addition to proving the threat to his home, the farmer’s team must show that RWE is partly responsible for the risk because of its historical emissions. This is more of a challenge, and something that until recently would have been difficult to prove. Enter “attribution science,” a rapidly evolving field of research into the extent to which climate change has made a natural disaster more likely or severe, and who emitted the pollution that caused the warming. RWE’s historic European emissions blamed for contributing to warming shrinking Peru’s glaciers © Alex Kraus/Bloomberg Once a niche field, this area of study has progressed rapidly in its 20 years of existence, and scientists are getting better at drawing causal links. Without these advances, proving liability for climate-related disaster would be much more difficult, says Delta Merner, who leads the Science Hub for Climate Litigation at the American nonprofit Union of Concerned Scientists. The RWE case “wouldn’t have been possible 10-15 years ago,” he adds. For Luciano Lliuya and his supporters, victory is about “climate justice” – or restoring the balance between big polluters and communities that have done little to contribute to climate change but will be hit hardest by its effects.
A wave of legislation
Vulnerable countries are also seeking climate justice, which some of their leaders say should include compensation for the effects of warming – something rich countries have long resisted. Compensation cases are “the holy grail of climate change litigation,” says Marjanac. “There is no way the rich countries of this world will voluntarily agree to pay reparations to the global south.” The issue proved a sticking point at last year’s COP26 UN climate summit, in which rich countries refused to back a proposal by poorer ones for a new “loss and damage” financing facility, or money to help those most at risk of the destruction was caused by rising sea levels, hurricanes and wildfires. Loss and damage is expected to be a major issue at this year’s COP27 meeting in Egypt. Lee White, Gabon’s Minister of Water, Forests, Marine and Environment, says that if he were representing a country at high risk of climate risks, “I would be tempted to take [legal] action. . . although I know it would be extremely complicated and difficult to prove.’ Some island nations are considering doing just that: last year, Antigua and Barbuda and Tuvalu formed a group to discuss the prospect of suing countries over the effects of their emissions, among others. The Small Island States Committee on Climate Change and International Law plans to seek legal opinions from international courts on whether they could bring such cases. In the US, meanwhile, more than 20 cases are making their way through state courts across the country seeking compensation for climate-related disaster. Unlike RWE’s case, they are rooted in the idea of deception as the source of responsibility – that big polluters misled people about the effects of carbon-intensive products. Island nations battling rising sea levels, such as…
