Credit: Germanwatch
By: Clara Kammeringer
Introduction
In its final decision of 28 May 2025, the Higher Regional Court of Hamm, Germany (Oberlandesgericht Hamm) in the case of Saúl Luciano Lliuya against German energy producer RWE AG established that civil liability for climate change-induced harms anywhere in the world is possible and dismantled several commonly advanced arguments why this would not be the case. Despite following Lliuya’s argument on principle, the Higher Regional Court did not deem his property to be sufficiently at risk of being damaged by climate-induced events, turning the case into a ‘success without victory’. The following piece introduces the first and second instance decision and relates them to the broader debate on access to justice in climate litigation.
Facts of the Case
In 2015, the Peruvian farmer and mountain guide Lliuya, supported by the German environmental and human rights NGO Germanwatch, filed a claim for a declaratory judgement and damages against RWE. Lliuya’s house in the Andean town of Huaraz in Peru is at risk of being damaged by a Glacier Lake Outburst Flood which could occur due to rising water levels of the Palcacocha Glacier Lake further up the mountains from Huaraz. Global warming has caused the volume of the lagoon to increase dangerously so that the existing dams might no longer withstand the pressure and break. To control water levels and reduce the risk, the pumping system and dams need to be upgraded. In legal terms, Lliuya claimed damages (§1004(1) German Civil Code) for nuisance caused by RWE. He held that RWE was unduly interfering with his property through their greenhouse gas emissions contributing to the climate crisis which causes the increased glacial melting putting his property at risk.
First Instance: Merely One Drop in the Lagoon
The case was initiated at the District Court of Essen, Germany (Landgericht Essen). In December 2016, the court of first instance dismissed the claim (§16) that it is RWE’s obligation to bear the costs for adequate preventative measures proportionally to its contribution to the damage, i.e., in accordance with its share of global greenhouse gas emissions, as partially inadmissible and partially unfounded (§26). It asserts that ‘there is no legal basis for liability for general, ubiquitous environmental pollution’ (§§24-25). The District Court essentially bases its finding on the “drop in the ocean”-argument according to which the emissions by RWE are merely one of many which are not determinant of the alleged flood risk. It relativized RWE’s responsibility to the point where it states that its emissions are ‘merely part of innumerable other pollutants that are and have been emitted by a multitude of small and large emitters’ (§43) and that RWE’s share of emissions ‘in global climate change is so small that the individual emitter, even if it is a large emitter such as the defendant, does not significantly increase the possible effects of climate change’ (§47). According to the District Court, because ‘every living human being is an emitter, more or less’ (§43), and because the chain of causation underlying climate change is too complex, RWE could not be held liable (§46).
Second Instance: Damages for Harm, No Matter Where
The court of second instance, the Higher Regional Court of Hamm, Germany (Oberlandesgericht Hamm), followed a different approach. On appeal, Lliuya argued that the District Court had misjudged the question of causality and that, in fact, a scientifically provable and legally relevant chain of causation exists between RWE’s greenhouse gas emissions and the climate change-induced risk to his property. Lliuya emphasized, against the judgement of the court of first instance, that RWE’s contribution to climate change is large enough to be met with legal consequences. Different from the claim before the first instance court, RWE’s share of responsibility was now set by Lliuya at 0.47% in accordance with RWE’s contribution to global greenhouse gas emissions.
Already in its decision to move to the evidentiary phase, the Higher Regional Court of Hamm accepted that RWE is in principle responsible for harms caused by its contribution to the climate crisis. The Higher Regional Court holds that ‘[i]t is in line with the legal system that even those who act lawfully must be liable for any damage to property caused by them’ (§1.2).
In its final decision, the Higher Regional Court at length confirmed that corporations can in principle be held liable for damages caused by the effects of the climate crisis as their emissions (significantly) contribute to the crisis. The Higher Regional Court, moreover, found that RWE specifically can be held liable for the damages caused to Lliuya’s property. It justified this by stating that ‘an optimal observer in the role of the defendant [RWE] could have recognized since the mid-1960s that a significant increase in industrial CO2 emissions would lead to global warming and to the consequences alleged by the plaintiff [Lliuya]. The defendant's contribution to causation is also significant’ (p. 44). To find RWE’s share of emissions significant the Higher Regional Court adopted a comparative lens noting that ‘all causal shares of the world's largest emitters are each less than 3.6% of total emissions [and that] [i]n the list of the world's 81 largest CO2 emitters (Table 12 of the “Heede Study”) […]the defendant ranks 23rd’ (p. 47). To reach that conclusion and accepting corporate liability for climate-induced harms, the Higher Regional Court confirmed that Lliuya as a person living in Peru can rely on German civil law since the only relevant factor is that there is an impairment of property (p. 29, 31, 35). Furthermore, the Higher Regional Court held that neither the fact that its acts may be lawful (p. 58), nor that RWE is only one among several emitters excludes civil liability (p. 57). It concludes that ‘[t]he “total liability” argument of each individual emitter and the (supposed) wave of lawsuits of “everyone against everyone” are ultimately opposed by the filter of adequacy and there the characteristic of materiality’ (p. 56). The Higher Regional Court also denied that the claim is to be dismissed due to its alleged political nature. It clarifies that ‘legal disputes before civil and administrative courts and the Federal Constitutional Court are often (also) conducted to enforce political interests, which is not inadmissible per se’ (p. 56).
Finally, however, the Higher Regional Court denied that Lliuya’s property is at sufficient risk of being damaged as the second sentence of §1004(1) GCC requires ‘[a] certain probability and a certain temporal proximity of the infringement to be feared’ (p. 81). Relying on the report by court-appointed experts, the Higher Regional Court assumed the probability of Lliuya’s property being endangered by flooding and/or a mudslide in the next 30 years to be (less than) 1%. This risk was deemed very low, and the Higher Regional Court is thus ‘convinced that a risk of first occurrence cannot be affirmed, even taking into account the weight of the legal interests threatened’ (p. 89-90).
Access to Justice for Those Hit Hardest
It is clear that the climate crisis is not just a truly global phenomenon, but that its effects are dispersed unequally and unjustly with those least responsible often being hit hardest. Lliuya exemplifies that large corporations who are responsible for a significant share of emissions operate far from where the devastating consequences of these emissions occur. When seeking to mitigate the effects of the climate crisis and to be compensated for (imminent) harm, people who are foreigners to the jurisdiction where corporations like RWE have their seat face particular legal challenges. Courts often limit their jurisdiction to citizens or people residing within their territory. This influences the access to justice of people living abroad as well as the assessment of their claims if their cases reach a discussion of the merits.
Many of these legal challenges feature in Lliuya: as arguments raised by RWE in an attempt to shield itself from liability and in the decision of the Higher Regional Court breaking that shield. Accepting the line of causation from RWE’s emissions to the danger to Lliuya’s home as a direct one and not a mediated one (p. 37, 48), and clearly holding that legal liability can follow, is a crucial step towards access to justice for all who suffer from the consequences of the climate crisis, regardless of where they are in the world (p. 35). The emphasis on (imminent) harm as the connection between a plaintiff and defendant makes claims under civil law an attractive avenue for future climate litigation.
While Lliuya opens the doors to justice for people living abroad a bit further, it should still be remembered that accessing justice is only the first step towards achieving meaningful climate justice. Here it will have to be seen whether the standard the Higher Regional Court of Hamm developed is merely a stone in the way or will turn out to be a boulder that can hardly be removed.
Bio:
Clara Kammeringer is a PhD researcher at the University of Amsterdam. She researches the role of non-resident non-citizens in strategic climate litigation and its democratic relevance. With her research Clara is part of Christina Eckes’ LitDem project, studying the direct and indirect consequences of strategic climate litigation for democracy.
Clara holds an LL.M. in Legal Theory from the European Academy of Legal Theory at Goethe University Frankfurt, Germany. She previously completed her bachelor’s degree in Liberal Arts and Sciences from University College Maastricht, The Netherlands.
Email: c.v.kammeringer@uva.nl