33
From a legal standpoint, such claim falls within the category of cumulative damages under German law, or the so-called cumulative causation, which relies on the
fundamental “but-for test” (conditio sine qua non). According to this test, a specific
event is to be viewed as a cause had the damage not occurred without it. In the cumulative causation theory, the act of an offender would be deemed as a cause if it would
result in the damage in combination with actions of other offenders (Koch et al.
2011, p. 399). Relevant, the enrichment of the atmosphere with GHG emissions
caused by RWE would constitute an active external influence causing the impairment of the claimant’s estate under §1004 BGB. Thus, RWE shall alternatively:
(a) Bear the costs for adequate preventative measures to protect the property of the
claimant against a glacial flood from lake Palcacocha, proportionally to its contribution to the damage (i.e., its share of global GHG emissions);
(b) Take adequate measures to ensure that the water volume of lake Palcacocha is
reduced to an extent proportional to the defendant’s contribution to the damage;
(c) Be ordered to pay an amount (17,000 euros), equal to the 0.47% of the estimated costs to drain lake Palcacocha as its contribution toward preventative
measures adequate for the protection of the claimant’s property.
The District Court of Essen rejected the claim, stressing the disputed existence
of a linear causation chain between a particular source of GHG emissions, “the state
of the climate as it presents itself today […] and to one particular damage”.
15
In the
Court’s view, it was not clearly demonstrated that “anthropogenic climate change
and therefore the supposed flood risk of the glacial lake would not occur if the
defendant’s particular emissions were not to exist”. Relevant, the Court utterly
failed to address the main argument of the claimant, namely that the flood risk
would be lower had RWE’s emissions not existed (Kahl and Daebel 2019).
The claimant challenged the decision before the Regional Court of Hamm, which
allowed the claim to proceed to the evidentiary stage.
16
The Regional Court was
satisfied that the scientific studies presented by Mr. Lliuya were sufficient to justify
further inquiries to assess whether RWE operations would constitute an active contributory cause to the GLOF risk in lake Palcacocha. Thus, the Regional Court mandated experts opinions to clarify: (1) if RWE activities have led to a higher GHG
concentration in the atmosphere; (2) if such higher concentration has caused an
increase in global temperature; (3) if such increase in global temperature has in turn
accelerated the melting of the Palcaraju glacier so that the water volume in lake
Palcacocha can no longer be contained by the natural moraine; (4) if RWE’s share
in the whole causation chain is measurable and calculable, and accounts for 0.47%
of the total.
17
While the evidentiary phase is still pending, Lliuya v. RWE represents
15 District Court Essen, Case No. 2 O 285/15 (December 16, 2016).
16 Regional Court of Hamm, Case No. 2 O 285/15 (November 30, 2017).
17 As no agreement could be reached between the parties as to the nominee joint experts, the Court
appointed its own experts on September 2018, who will inspect the premises in Peru subject to the
lawsuit. In particular, the claimants contended that the RWE’s suggested experts views were
largely not based on IPCC findings.
Climate Science Before the Courts: Turning the Tide in Climate Change Litigation
From a legal standpoint, such claim falls within the category of cumulative damages under German law, or the so-called cumulative causation, which relies on the
fundamental “but-for test” (conditio sine qua non). According to this test, a specific
event is to be viewed as a cause had the damage not occurred without it. In the cumulative causation theory, the act of an offender would be deemed as a cause if it would
result in the damage in combination with actions of other offenders (Koch et al.
2011, p. 399). Relevant, the enrichment of the atmosphere with GHG emissions
caused by RWE would constitute an active external influence causing the impairment of the claimant’s estate under §1004 BGB. Thus, RWE shall alternatively:
(a) Bear the costs for adequate preventative measures to protect the property of the
claimant against a glacial flood from lake Palcacocha, proportionally to its contribution to the damage (i.e., its share of global GHG emissions);
(b) Take adequate measures to ensure that the water volume of lake Palcacocha is
reduced to an extent proportional to the defendant’s contribution to the damage;
(c) Be ordered to pay an amount (17,000 euros), equal to the 0.47% of the estimated costs to drain lake Palcacocha as its contribution toward preventative
measures adequate for the protection of the claimant’s property.
The District Court of Essen rejected the claim, stressing the disputed existence
of a linear causation chain between a particular source of GHG emissions, “the state
of the climate as it presents itself today […] and to one particular damage”.
15
In the
Court’s view, it was not clearly demonstrated that “anthropogenic climate change
and therefore the supposed flood risk of the glacial lake would not occur if the
defendant’s particular emissions were not to exist”. Relevant, the Court utterly
failed to address the main argument of the claimant, namely that the flood risk
would be lower had RWE’s emissions not existed (Kahl and Daebel 2019).
The claimant challenged the decision before the Regional Court of Hamm, which
allowed the claim to proceed to the evidentiary stage.
16
The Regional Court was
satisfied that the scientific studies presented by Mr. Lliuya were sufficient to justify
further inquiries to assess whether RWE operations would constitute an active contributory cause to the GLOF risk in lake Palcacocha. Thus, the Regional Court mandated experts opinions to clarify: (1) if RWE activities have led to a higher GHG
concentration in the atmosphere; (2) if such higher concentration has caused an
increase in global temperature; (3) if such increase in global temperature has in turn
accelerated the melting of the Palcaraju glacier so that the water volume in lake
Palcacocha can no longer be contained by the natural moraine; (4) if RWE’s share
in the whole causation chain is measurable and calculable, and accounts for 0.47%
of the total.
17
While the evidentiary phase is still pending, Lliuya v. RWE represents
15 District Court Essen, Case No. 2 O 285/15 (December 16, 2016).
16 Regional Court of Hamm, Case No. 2 O 285/15 (November 30, 2017).
17 As no agreement could be reached between the parties as to the nominee joint experts, the Court
appointed its own experts on September 2018, who will inspect the premises in Peru subject to the
lawsuit. In particular, the claimants contended that the RWE’s suggested experts views were
largely not based on IPCC findings.
Climate Science Before the Courts: Turning the Tide in Climate Change Litigation