A German court has dismissed the action brought by a Peruvian farmer against the fossil fuel company, RWE. While the court's decision on the specific claim will be a disappointment to the plaintiff and his activist supporters, the Higher Regional Court of Hamm (HRCH) found more generally that the basis of the claim advanced under the German Civil Code was legitimate, opening the door to further attribution claims.
Summary
The plaintiff farmer, Saul Luciano Lliuya, sought a contribution from RWE towards the expected costs of flood prevention measures needed to protect his property from the risk of flooding from a nearby glacial lake. The lake was alleged to have increased in size due to climate change. The contribution was based on RWE's share of global emissions since the start of industrialisation, a type of claim often referred to as climate attribution litigation.
While the full judgment remains unavailable at the time of writing, materials released by the HRCH confirm that a claim can be brought for equitable relief under s1004 of the German Civil Code where greenhouse gas emissions infringe individual rights, irrespective of the distance between the relevant property and the source of the emissions.
As a result, a polluter could be obliged to take measures to prevent an infringement and, if those measures are insufficient, be held responsible for its share of the costs.
This particular claim failed as there was no concrete evidence of flood risk. The risk of glacial water reaching the property in the next 30 years was calculated at less than 1%. Even if flooding occurred, any water flows were assessed as not being capable of endangering the property.
Factual background
The Peruvian city of Huaraz is located beneath a glacial lake, Palcacocha. The plaintiff, Mr Saul Luciano Lliuya lives in Huaraz.
The lake has grown in size in recent years due to melting ice from the nearby glaciers. The plaintiff alleged that climate change is responsible for these changes. Furthermore, it was alleged due to the growth in size of the lake, there are increased risks of either a glacial lake outburst flood or an overflow, engulfing significant areas of Huaraz.
The plaintiff issued proceedings 2015, seeking from RWE a contribution to risk alleviation measures, namely the construction of a protective dam. The cost of construction was estimated at $4 million. The damages sought from RWE, in the sum of approximately $20,000 were calculated on an attribution basis. The calculation uses a study estimating that RWE had contributed approximately 0.5% of global emissions since the start of industrialisation.
The claim was pursued in Germany on the basis that RWE AG, the parent company, is based there and the emissions in question were emitted in Germany. The claim alleges that RWE is in breach of section 1004 of the German Civil Code, namely causing nuisance or interference to the plaintiff's property.
Initially, the claim was refused at first instance, with the judge finding that "the contribution of individual greenhouse gas emitters to climate change is so small that any single emitter, even a major one such as the defendant, does not substantially increase the effects of climate change".
However, on appeal, the HRCH found that the plaintiff had an arguable case on the facts. The plaintiff was granted standing to bring the proceedings, and the action moved to the evidentiary stage, allowing the plaintiff to obtain expert evidence on the following issues:
- Whether the increase in the volume of water of Palcacocha posed a serious threat to the plaintiff's property
- The extent to which RWE's emissions had contributed to this threat
Experts and judges from the HRCH visited Palcacocha to investigate the risk to Huaraz, and an evidentiary hearing considering the first issue occurred in March 2025. The judgment was delayed from April 2025 following an application by the plaintiff requesting that the court reject the evidence of a court-appointed independent expert witness.
Following the dismissal of the claim on the first issue, a hearing on the second issue will not proceed.
Where does this leave climate litigation?
The decision is final. It is clear that the German court agreed that the action, pursued on an attribution basis, was legitimate irrespective of national borders or distance between victim and polluter. Had the risk to the plaintiff's property been assessed at far greater levels, then the action may have been successful.
This decision, although initially disappointing for climate activists, will likely be viewed through a similar prism to some of the findings made in the appeal of Shell v Milieudefensie last year. The Shell decision made clear that fossil fuel companies do carry responsibility to cut emissions, but that imposing specific reduction targets was not possible. There is some encouragement from the courts for claimants seeking to impose responsibilities on large emitters, yet laying the blame at the door of a single defendant poses a significant challenge. Similar attribution actions are ongoing, and their outcomes are awaited with great interest.
Our climate change litigation map highlighting our pick of the top 20 active cases around the world can be viewed on Informed Insurance.
