Germany’s “Climate Case” concludes – What Does This Mean for Future Climate Lawsuits?

After eight years of legal proceedings, the Hamm Higher Regional Court has issued its final judgment in the Lliuya v. RWE AG case. The court dismissed the appeal by Mr. Luciano Lliuya without allowing for further appeal (“revision”), effectively closing the case. However, the court’s legal reasoning is remarkable as the decision is case-specific and lacks a clear fundamental stance.

Background

Mr. Lliuya, a Peruvian farmer and mountain guide, sought a partial contribution from RWE AG, Germany’s largest electricity producer, for the costs of adaptation measures needed to protect his property in Huaraz, Peru, from glacial outburst flooding allegedly linked to climate change. The claim was based on RWE’s historical contribution to global greenhouse gas emissions (GHG), estimated at 0.47% of the global total. Mr. Lliuya sought compensation proportional to that percentage of the local adaptation costs. The claim was initially dismissed in 2016, prompting Mr. Lliuya to appeal.

Key Findings from the Court

While the Court ultimately dismissed the appeal on evidentiary grounds, the judgment is highly significant in its legal reasoning.  The recently published ruling highlights the following particularly compelling aspects:

• Transnational Claims Permissible in Principle: The court confirmed that the German Civil Code can, in principle, support cross-border tort claims related to climate damage. This acknowledgment underscores the potential for domestic civil law frameworks to address global climate harms.
• Territorial Distance Not a Barrier: The fact that RWE’s emissions occurred in Germany, while the alleged damage occurred in Peru, was not viewed as a legal impediment to the claim.
• No Justification in Legal Operations: The court did not accept RWE's defense that the legality of its operations or a public duty to supply energy under German law could shield it from liability for alleged transboundary harm.
• Risk Evidence Insufficient: The Court concluded that the Claimant had failed to prove a sufficiently concrete and immediate danger to his property. Specifically, the risk of flooding from the melting glacier was found to be below a 1% probability threshold, which the Court deemed too low to establish legal causation.
• Recognition of Preventative Duties: Importantly, the Court stated that if a claimant can demonstrate a credible threat of damage, corporate emitters may be required to take “appropriate” preventative measures. Failure to do so could result in proportional liability tied to the emitter’s share of global emissions.
• Scientific Foreseeability: The Court observed that the harmful impacts of GHG emissions have been scientifically evident since at least 1958. It noted that by 1965, major emitters could reasonably foresee the potential damage from ongoing emissions—a finding with potentially far-reaching implications for attribution and responsibility in future climate litigation. This point may be particularly relevant in the context of the International Court of Justice’s forthcoming advisory opinion on climate change.

Implications

By dismissing the case based on specific facts rather than on legal principles or jurisdiction, the court has left certain legal questions unresolved, potentially prompting further clarification. 

Specifically:

• The court did not reject the legal theory underpinning climate liability claims;
• The “great distance” between the emitter and the affected party did not prevent the court from considering the claim;
• The legality of emissions under national law was not accepted as a shield from liability.

As such, the ruling contains important legal and factual findings that may also be relevant for the development of climate change lawsuits in Germany. This mirrors developments in other jurisdictions - most notably the recent reformulated claim brought by Milieudefensie against Shell in the Netherlands following the Court of Appeal’s November 2024 decision, which also left the door open to future action despite dismissing the specific claim at issue.

Conclusion

In the interim, this case stands as an important marker in the global evolution of climate litigation. Even though the specific lawsuit was dismissed, the reasoning of the court lacks a clear position to clearly close the door for future climate-related lawsuits with respect to damages caused by climate change anywhere in the world. Companies, especially those in high-emission industries, should develop an awareness of this remaining risk at an early stage and implement appropriate preventive measures to minimize litigation and reputational risks.

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