186
GERMANY LLIUYA 31. In 2015, Saúl Luciano Lliuya, a Peruvian farmer filed a claim for a declaratory judgment and damages in a Germany against RWE, Germany’s largest electricity producer139. Lliuya alleges that the company’s greenhouse gas emissions threaten his family, property, and his home city of Huaraz. He asserts that TWE knowingly contributed to climate change in relation to its substantial volume of emissions, and thus bears a measure of responsibility for the melting of mountain glaciers and the subsequent volumetric increase of a lake in Huaraz140. Lliuya characterised the emissions as a nuisance, and based his claim on the German Civil Code which provides for nuisance abatement and injunctive relief141. Lliuya sought a costs order to reimburse him a portion of 0.47% of total costs that he and Huaraz authorities had incurred to establish flood protections. 0.047% is the estimate of RWE’s annual contribution to global greenhouse gas emissions142. 32. At first instance, the court dismissed the claim. It noted that there was no “linear causal chain” between particular greenhouse gas emissions, climate change impacts and the costs incurred by Lliuya143. Further, the court held that it could not provide Lliuya with effective redress, as irrespective of whether RWE cease emitting greenhouse gases, his circumstances would not change144. On appeal, the court recognised the claims as well-pled and admissible, and the matter has since move forward to the evidentiary phrase whereby experts will be appointed to determine whether the claimant’s home is threatened by the increase in volume of the lake, and whether RWE’’s emissions contributed to the threat.145 Excerpts from the order follow: REASONS The claim pursued by the plaintiff in subparagraph 1) (the main claim [Hauptantrag]) meets the criteria for specificity stated in section 253(2) of the Code of Civil Procedure [Zivilprozessordnung (ZPO)]. Contrary to the opinion of the defendant, the claim is not too imprecise in light of the facts of the matter and the status of the dispute to date because the ‘suitable measures’ that would apply are not specified therein. It is true that, in its 2004 decision (NJW 2004, 1035 et seqq.), the Federal Court of Justice [Bundesgerichtshof (BGH)] ruled that a judgment can specify a concrete measure for the elimination of a disturbance if further measures, though possible, cannot reasonably be given serious consideration. This determination was an exception in favour of an owner filing suit to eliminate a disturbance, however; it should not necessarily be
139
Lliuya v RWE AG, Case No. 2 O 285/15 Essen Regional Court.
140
UN Environment, above n 1, 21.
141
Ibid.
142
Lliuya, above n 67, 3.
143
Ibid 7.
144
Ibid.
145
Sabin Centre for Climate Change Law, Lliuya v RWE AG, <http://climatecasechart.com/non-us-case/lliuya-v-rwe-ag/>.
