Opinion: A Peruvian farmer is trying to hold energy giant RWE responsible for climate change
5 December 2023
Dr Noah Walker-Crawford (最准的六合彩论坛 Political Science) writes about a legal case between a German energy giant and a Peruvian farmer that could set a global precedent to hold major polluters responsible for the effects of climate change in The Conversation.
On a crisp, sunny day high in the Peruvian Andes, two German judges gaze across a mountain lake to the towering white glaciers in the distance. Dark spots are visible on the pristine ice and, in quiet moments, the cold wind carries the sounds of creaking and cracking.
The judges, from the German city of Hamm, have flown more than 6,500 miles to witness the melting glaciers for themselves. It is May 2022 and their visit has taken more than three years to organise 鈥 and some intensive diplomatic negotiations between Peru and Germany. Also here, more than 4,500 metres above sea level, are five German and Austrian scientific experts flying drones to assess whether Lake Palcacocha poses a significant risk of flooding to the thousands of people in the valley below.
A throng of local Peruvian officials have tagged along too, to share their concerns about听听with the judges. Around two-dozen international journalists and four documentary film teams are in the area to听. But the judges have requested they stay away from the lake so the court can do its work.
Later that day, after we escape the cameras, I ask what his neighbours back in Peru think about the lawsuit. His only aim, after all, is to benefit his community in the face of dramatic changes to their Andean environment. He seeks no personal gain; only that RWE covers part of the costs of a public infrastructure project to reduce the risk of flooding from Lake Palcacocha.
鈥淚 don鈥檛 know what [my fellow villagers] think,鈥 Luciano Lliuya replies. 鈥淚 haven鈥檛 told anyone.鈥 Acknowledging my surprise, he says he isn鈥檛 sure how to explain it to them:
They live with climate change in their own way, but they don鈥檛 all have the scientific facts. I鈥檓 afraid that some people might not understand how me going to Germany helps us in Peru.
It turns out that his fear is well-founded. When his neighbours find out about his legal claim 鈥 whether from news reports, social media or word of mouth 鈥 some are confused by it. Rumours begin to spread: that he is making lots of money from the claim, or selling the lake to the Germans. Upon his return home, he explains to his neighbours that nobody is paying him to make the claim, and that success would ultimately help them all. Still, many remain suspicious.
The irony that this case, revolving around听, risks upsetting his own neighbours in Peru is not lost on Luciano Lliuya. The lawsuit applies听, which is typically applied in neighbourhood disputes, to climate change impacts.
Imagine this: your neighbour has a wall that borders on your property. The wall is old and crumbling, and you鈥檙e afraid it could fall over and damage your house. If that happens, you can sue your neighbour for damages. But you鈥檇 rather not wait 鈥 you don鈥檛 want to live with the uncertainty. So instead, you sue your neighbour using the nuisance law. If you win, the court will order them to fix the wall 鈥 or in Luciano Lliuya鈥檚 case, get rid of the flood hazard.
Around the world, others have attempted similar lawsuits before, to no avail. In 2008, for example, the Native Alaskan community of Kivalina听听against ExxonMobil and other oil majors in the US. Their village is threatened by rising sea levels, so the complainants demanded support for adaptation costs 鈥 but that case was dismissed on the grounds that climate change is a political issue that should not be resolved in the courts.
Since then, political progress has proved largely inadequate in mobilising support for those who are most vulnerable to climate change. At the same time,听, drawing ever more precise links between major emitters and impacts around the world.
Since 2017, around 40 US states and cities have听听against the fossil fuel industry, arguing that companies such as ExxonMobil听听but hid this knowledge from consumers. The plaintiffs have included cities such as New York and San Francisco that are threatened by sea level rise and have demanded billions of dollars to cover their adaptation costs. Their actions have received support from US president Joe Biden鈥檚 administration, and earlier in 2023,听听the cases should be heard in state rather than federal courts. Many legal analysts believe these cases have a better chance of success in state courts, and they are likely to go to trial soon.
After Dutch NGO听听filed a lawsuit against the oil and gas multinational Shell, in 2021 a听听that the company should reduce its emissions by 45% by 2030. (There are, though, enforcement challenges with multinational corporations, and since the verdict Shell has moved its corporate headquarters from the Netherlands to the UK.) Lawsuits in numerous countries have forced governments to increase climate action. But, almost eight years after he delivered the complaint to the snowy Essen courthouse in November 2015, Luciano Lliuya鈥檚 case has made it furthest of all.
Most fossil fuel companies are no longer engaging in听. RWE acknowledges the dangers of global warming and claims to be听听Yet the company is still making massive profits with fossil fuels, and refuses to pay up for damage caused by past emissions.
A battle over the science
I know of no other case where attribution science is so important. This is a real battle of science. (Roda Verheyen, Luciano Lliuya鈥檚 lead lawyer)
In early 2021, Luciano Lliuya鈥檚 legal team submitted a new piece of impartial evidence: a听听linking flood risk in the Peruvian Andes to global warming. It found that around 95% of the glacier鈥檚 retreat at Lake Palcacocha is听. One media article called it a 鈥溾.
After RWE鈥檚 lawyers challenged the legal validity of the study, in July 2021 the court听听as a piece of independently produced evidence, meaning it is 鈥渙f higher value than private expert opinions commissioned by the parties鈥.
In response, RWE鈥檚 legal team presented a听, which analysed satellite data for the glacier above Lake Palcacocha and found there was 鈥渘o evidence of significant glacial instability鈥 within a three-year observation period. RWE鈥檚 lawyers used this study to argue that a large avalanche is unlikely 鈥 a position that has been strongly contested by Luciano Lliuya鈥檚 legal team.
RWE states that as well as modernising its coal-fired power plants to reduce CO鈧 emissions, it has invested billions in renewable energy, reflecting听. Within an article about the case on the听, RWE spokesperson Guido Steffen commented:
Individual emitters are not liable for universally rooted and globally effective processes like climate change. It is judicially impossible to relate specific or individual consequences of climate change to a single person.
听
鈥楾his close to winning鈥
In the years since I first met Luciano Lliuya in 2014, as well as working with him as a legal adviser and strategist, I鈥檝e also听听on how climate change affects people in the Peruvian Andes, linking their concerns with legal and political discussions across the world. But the case is still far from over: legal proceedings move slowly, and the next hearing is due to be held in the first half of 2024.
But the case has already inspired other claims: in July 2022, Indonesian islanders threatened by sea-level rise filed a听听against the Swiss cement producer Holcim. A听听in Italy asks for a declaration of responsibility for climate damage from ENI, an Italian oil company. And in September 2023, the听听posed by Portuguese young people aged 11-24 against 33 European governments over what they claim is a failure to adequately tackle global heating.
Meanwhile, the plight of Luciano Lliuya鈥檚 community has been covered by听. When his lawsuit began, it felt to all involved that victory was nearly impossible 鈥 we might get past a few legal hurdles, then move on to the next case. Almost a decade on, we never imagined we鈥檇 get this far, and be this close to winning the case.
Back in Luciano Lliuya鈥檚 village, the criticism of his motives has slowly subsided. 鈥淎 big step was when the court came to visit us [in 2022],鈥 Luciano Lliuya explains. 鈥淧eople saw that this is something serious. It wasn鈥檛 just me.鈥
Community leaders joined the court鈥檚 inspection at Lake Palcacocha and shook the judges鈥 hands. At the same time, Luciano Lliuya has helped establish a local NGO that supports farmers in adapting to climate change through sustainable agriculture. The organisation is called听听鈥 Quechua for 鈥渙ur house鈥.