Officials visit melting glaciers in Peru amid climate case against German utility RWE


A groundbreaking climate lawsuit – filed by a Peruvian farmer who alleges high-emitting German utility RWE knowingly contributed to climate change and the threat of flooding it faces – entered a climactic phase last week as that German court officials traveled to Huarez, Peru to examine melting glaciers.

“As we know, there is accelerated glacial retreat in the Andes, and I’m very happy to have been able to show people what is happening with glacial retreat,” said Andean farmer and mountain guide Saúl Luciano Lliuya, the plaintiff in the case, said during an online press conference after the site visit.

His trial,Luciano Lliuya vs. RWE AG, was initially rejected in 2015. But then it was allowed to proceed to the “evidence phase” in 2017 after an appeal, which was itself a moment in legal history. For the first time, writes The Climate Case, a court has found that a private company with very large emissions can in principle be held liable for protecting those affected from the climate risks it has caused, even those of the ” global neighborhood”.

“The case is significant, and the decision, in principle, that RWE could be liable for the impacts of climate change in Peru is already groundbreaking with no substantive outcome at this time,” said Lisa Benjamin, assistant professor at Lewis & Clark Law. School. The energy mix.

The case is unique because it is “so transnational in nature,” Benjamin added. The result might not “perfectly match” other jurisdictions like Canada and the UK due to differences in legal systems, but some common principles of tort law and causation may still apply , and these principles “are stretched and tested by the multidimensional and complex nature of climate change. Part of a ‘second wave’ of climate litigation against non-state actors (such as the Philippines Commission on Human Rights report that linked carbon majors’ shackles to climate action to human rights abuses of man), Luciano Liuya could have implications for holding other companies accountable and for climate lawsuits in other countries, Benjamin said.

With legal support from Germanwatch, Lliuya claims global warming has accelerated the melting of glaciers in Lake Palcacocha, located above his home in Huaraz, and increased the threat of a flood wave from the lake. Lliuya demands that RWE finance climate protection measures for the city and its 120,000 inhabitants in proportion to the company’s overall emissions. Based on a 2014 study that found RWE was responsible for 0.47% of historical global emissions, the lawsuit asks the company to pay 0.47% of the costs, or about $3.5 million Americans.

“This case concerns the request to RWE to bear part of the costs of the risk reduction measures at Laguna Palcacocha,” said Dr. Roda Verheyen, the plaintiff’s lawyer, who was in Huaraz for the site visit. She said this is the only case where a person “takes the law into their own hands” and seeks compensation.

Lliuya’s claim is supported by a peer-reviewed study that measured glacier retreat and its impact on Lake Palcacocha, which the researchers say is “entirely attributable” to rising temperatures. “The resulting change in lake and valley geometry has significantly increased the risk of flooding,” the study adds.

German procedural rules require court-appointed experts to conduct their own investigations into a matter, so the on-site visit was an important step in the case, although it was delayed for two years by the COVID-19 pandemic. The nine-member delegation was tasked to answer only the first of two evidentiary questions, so they focused on whether the melting ice poses a “real and imminent risk” to Lliuya’s home. Whether the risk is caused by climate change is part of the second question, Verheyen explained.

“Attribution is not really at the forefront of the site visit,” she said. The trip included collecting data from sources such as soil samples, measurements from a 1970s siphoning system and discussions with Peruvian authorities, to establish the danger posed by melting ice.

“No one who was there could really question that there was a risk,” Verheyen said. “Whether or not it is legally imminent and concrete enough is an issue for the court.”

A definitive conclusion is still a long way off. The experts will review their data and write a report, expected in the fall. A hearing on the report’s findings will not take place until winter or next year. If the court determines that there is an imminent risk based on the report, the case will then move on to the next question of whether that risk can be attributed to climate change. This phase will require a repeat of the investigative process (but likely without another site visit) and another oral hearing, Verheyen explained.


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