In the unique civil action of Saul Luciano Lliuya vs RWE, pending in the German Supreme Court of Hamm in second instance, judges, experts and representatives of the claimant travelled recently to Peru to progress a five-year old evidence order, handed down in 2017 by the Supreme Court of Hamm in the state of North Rhine - Westphalia (where Lliuya submitted his appeal against RWE, having previously had his case dismissed by the Court of first instance in Essen, where RWE has their head-quarter).

The visit by experts, which was ordered in 2019, was delayed by the Covid-19 pandemic.

The case against RWE was brought by farmer and mountain guide Saúl Luciano Lliuya, who is asking for €17,000 (£14,490) for the costs of preventing damage from a potentially devastating outburst flood from the lake.

The crucial legal point of the law suit is whether German-head quartered RWE can be held liable for effects in another part of the world allegedly caused by carbon emissions arising from their power plants, bearing in mind that RWE´s actions are all legal. RWE operates in 27 countries in the world, including Chile and Brazil, but not in Peru. By publishing the said evidence order, the Court has already agreed that RWE would be liable if it can be proven that the glacier posed a flood risk and that climate change had caused it to melt.

The evidence order aims to answer two questions:

  • Whether a swell of the glacier lake poses a significant threat to the neighbouring home of the Claimant; the farmer and mountain guide Saul Luciano. Clarifying this issue was the purpose of the evidence taken now by the Court. The outcome of the evidence procedure has not yet been published; and
  • Whether RWE´s carbon emissions have caused the swell of the said lake by increasing the global temperature.

A judgement is expected to be handed down in 2023 and could be a game-changer in the progression of climate litigation liability on corporate entities.

Please click here to read our summary of the procedural stages of the Saul Luciano Lliuya vs RWE case.

Please click here to listen to our podcast discussing the global trends in climate change litigation, the legal and practical significance of these trends and the impact on the energy sector.