German Climate Damages Case

Kurt Cobb posted about various climate related litigation and mentioned a recent German case.

That’s a good opportunity to write about that, though I couldn’t yet find a full copy of the recent decision (Landgericht Essen, decision of December 15, 2016, file number 2 O 285/15). I could only find a press release from the Regional Court. The next best source of information is the page on this case at Germanwatch, a NGO supporting the plaintiff.

The plaintiff lives in the town of Huarez, in Peru. That town is located about 23 km downstream from lake Palcacocha. In 1941, between 6,000 and 7,000 inhabitants of that town were killed when a large chunk of glacier suddenly collapsed into that lake, sending a strong flood down.

Recent glacier melting activity has increased the amount of water in that lake by a factor of over 30 since 1970. The population of Huarez has increased from 25,000 in 1941 to around 100,000 now. They live under the constant threat of another flash flood heading their way with 15 minutes warning.

One of the citizens affected, Saúl Luciano Lliuya, sued RWE in a German court, requesting financial compensation.

The basic idea is that RWE is responsible for CO2 pollution, so they should pay for the cost of preventing another flash flood disaster in Huarez. He asked for EUR 17,000 to be paid to a local organization draining the lake, and for EUR 6,300 compensating him for counter measures he already took against the danger of a flash flood.

The court dismissed the first claim because it was unclear who would actually get paid. Leaving such a point unclear may have been not an ideal way to proceed with this kind of case.

The more important point was the EUR 6,300 where that reason would not fly. The court dismissed that part as well.

Their reason was that while RWE is one of the polluters, almost everyone else is polluting as well. Every car driver, everyone using fossil fuel to heat their home is contributing to the CO2 emissions.

Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage and the German law transposing it address this exact point.

As consideration 13 of the Directive states:

Not all forms of environmental damage can be remedied by means of the liability mechanism. For the latter to be effective, there need to be one or more identifiable polluters, the damage should be concrete and quantifiable, and a causal link should be established between the damage and the identified polluter(s). Liability is therefore not a suitable instrument for dealing with pollution of a widespread, diffuse character, where it is impossible to link the negative environmental effects with acts or failure to act of certain individual actors.

And Article 4, Paragraph 5 of the Directive states:

This Directive shall only apply to environmental damage or to an imminent threat of such damage caused by pollution of a diffuse character, where it is possible to establish a causal link between the damage and the activities of individual operators.

In other words, the “everyone does it” defense.

The Essen regional court seems to have decided against the plaintiff because of such a consideration, though I can’t tell exactly before looking at the actual decision.

It may be possible to decide that differently.

Clearly, RWE has emitted CO2. They are the biggest emitter in Europe. No one can doubt that.

And clearly, the global warming from those emissions has been causing the glacier melting increasing the water in lake Palcacocha. No doubt about that as well.

Also, it is very easy to calculate the amount of CO2 emitted by RWE as a fraction of all emissions. If you know the sum of all emissions (we do know that) and the sum of all RWE emissions (it should at least be possible to establish a lower boundary), then the rest is just a matter of simply doing the math.

Actually it was rather strange that the plaintiff didn’t supply such a number in the first place, giving the court an opportunity to dismiss part of the lawsuit because of that.

Anyway, once you have that fraction, it is clear that there is a causal link between German electricity generation and glaciers melting in Peru.

The only question is if RWE should be excused by the fact that there are lots of other causal links to emissions by other companies and individuals.

That should be very much open to debate. The principle of “polluter pays” should apply even if there are two or three polluters. Probably even if there are seven. At exactly what number of polluters does everybody involved get a pass?

That said, it is probably true that the 2004 Directive is not exactly fitting for this kind of problem. If really everybody is a polluter, the correct answer would seem to be that everyone should pay. So the CO2 cleanup costs would shift to the taxpayers.

But this is far from obvious.

Which in turn should give RWE and other large scale CO2 emitters another strong incentive to limit their damage as fast as possible.

If that litigation dam breaks, the resulting flash flood of lawsuits would wipe out any company like RWE on the planet.