Peruvian mountain farmer loses climate lawsuit against energy company RWE – plaintiffs still celebrate

Saúl Luciano Lliuya, a Peruvian farmer and mountain guide, has lost his climate lawsuit against the German energy company RWE. The Higher Regional Court of Hamm (OLG Hamm) rejected his appeal against a first-instance ruling on Wednesday. The court announced that the ruling is final and no appeal has been allowed. The sensational proceedings lasted over nine years.

In its initial reaction, the German environmental organization Germanwatch called the ruling a "groundbreaking verdict" despite the defeat: Although the court rejected Lliuya's specific claim, it was the first time in history that a high court in Europe had ruled that large emitters could be held civilly liable for the specific consequences of the climate crisis. The ruling will have an enormous impact beyond Germany.

Lliuya is a co-owner of a house in the Peruvian city of Huaraz, located at the foot of the Andes below a glacial lake. In a 2015 lawsuit filed with the Essen Regional Court, the mountain guide demanded, among other things, a ruling that RWE AG, due to its greenhouse gas emissions, must contribute a proportionate share of the costs of protective measures. These measures were intended to protect his house against a flood or mudslide that threatens to occur as a result of climate change and the melting of the glacier.

The Essen Regional Court dismissed the lawsuit in 2016. It argued, among other things, that the flood risk alleged by the plaintiff could not be individually attributed, even proportionally, given the large number of greenhouse gas emitters worldwide.

Lluya, whose lawsuit was supported by Germanwatch and funded by the Stiftung Zukunftsfähigkeit (Sustainability Foundation), filed an appeal. He achieved a surprising interim victory before the Higher Regional Court of Hamm in 2017: A claim for proportional reimbursement of the costs of protective measures by RWE is generally possible if the plaintiff can prove the facts he alleges. The claim could arise from the right of defense, which, according to Section 1004 of the German Civil Code (BGB) in conjunction with other sections, every owner is entitled to against any intruder against encroachments on their property.

Based on this assessment, the Higher Regional Court of Hamm initiated a hearing of evidence by obtaining expert opinions. This process dragged on for years, partly because a multi-day on-site visit was conducted in 2022 at the plaintiff's house and at the glacier lake. The latter is located at 4,500 meters above sea level. A hearing of experts followed before the Higher Regional Court in March 2025.

RWE, with its coal-fired power plants, is a major emitter of _CO2 . At the beginning of the proceedings, its share of global emissions was estimated at around 0.5 percent; a new calculation has since put it somewhat lower. The costs of a proportional contribution to protective measures would be correspondingly low. However, the focus in this case was never on money, but rather on the potential precedent.

In his oral reasoning on Wednesday, Presiding Judge Rolf Meyer first addressed the fundamental issues raised by Germanwatch. He reiterated the Higher Regional Court's 2017 reasoning: He noted that the plaintiff "could possibly have a claim against the defendant under Section 1004 of the German Civil Code."

The judge stated that the polluter of _CO2 emissions could be obligated to take preventive measures if there is a risk of damage to the property of third parties. If the polluter fails to do so, it could be determined, even before actual subsequent costs arise, that the polluter would be required to bear these costs in proportion to his share of the emissions – as the plaintiff demands.

The considerable distance between the RWE power plants and the plaintiff's place of residence alone is not sufficient reason to classify the lawsuit as unfounded. Nor can RWE invoke its statutory supply mandate as an energy company in Germany to justify tolerating interference with the plaintiff's property.

However, this legal interpretation does not mean that every individual citizen can be prosecuted in the future, Meyer continued. This is contradicted by the fact that the causal contributions of a single person are so minor that they cannot give rise to liability.

The fact that the Higher Regional Court of Hamm rejected the mountain guide's appeal despite these fundamental statements is due to the specific circumstances.

The court found that the evidence had shown that there was no concrete danger to his property. The probability that water from the glacial lake would even reach his house within the next 30 years was only about one percent. And even if such an event did occur, the consequences for the house would be negligible because the flood wave would be only a few centimeters high and the flow velocity would not endanger the structure. The court thus followed the expert's assessment.

RWE stated that the decision of the Higher Regional Court of Hamm had "failed the attempt, supported by German NGOs, to create a precedent through the lawsuit of Mr. Saúl Luciano Lliuya to hold individual companies responsible worldwide for the effects of climate change under German law."

RWE has always considered such civil "climate liability" to be inadmissible under German law. It would have unforeseeable consequences for Germany as an industrial location, because it could ultimately lead to claims for climate-related damages being asserted against any company anywhere in the world.

The company only indirectly addresses the fact that the Higher Regional Court considered the plaintiff's claim to be fundamentally possible: It emphasizes that other German courts have dismissed comparable climate lawsuits, for example against Volkswagen, Mercedes-Benz or BMW, in the first and second instance.

From their perspective, no injunctive relief can be established against individual emitters if they comply with applicable regulations. This also corresponds to RWE's legal opinion. From the company's perspective, it would be "an irreconcilable contradiction" if the state were to permit _CO2 emissions, regulate them in detail by law, and even require them in individual cases, but at the same time retroactively impose civil liability for them.

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