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Peruvian farmer takes on big oil  

by
16 June 2023

A German court case is testing the boundaries of neighbourliness, reports Nicholas Reed Langen

Alamy

Saúl Luciano Lliuya, a Peruvian farmer, who is taking legal action against RWE, a German oil and gas company

Saúl Luciano Lliuya, a Peruvian farmer, who is taking legal action against RWE, a German oil and gas company

“IN THE beginning, God created the heavens and the earth.” The opening words of Genesis reflect the world’s nature as a single ecosphere. The earth is a vast, interconnected network. Bulldozers rumbling down on rubber trees in the Amazon affect the continent’s temperature and winds, which, in turn, alter the migration patterns of swallows on the Atlantic Flyway. Plastic waste discarded by China into the Pacific drifts on currents into Australian waters, where it suffocates coral, playing its part in bleaching the ocean’s rainforests.

It is this global interconnectivity that is fundamental to an ongoing lawsuit in Hamm, Germany, where a Peruvian farmer, Saúl Luciano Lliuya, is trying to hold RWE, a German-based oil and gas company, to account for its part in the climate crisis.

RWE has no base of operations in Peru: it is wholly German-owned and operates only in Europe. Yet Mr Lliuya has filed a claim in the German courts for RWE to reimburse him and the local authority for a proportion of the money that they have spent trying to mitigate the risk. Mr Lliuya lives in Huaraz, a city in the Andes, which is overlooked by Palcacocha, a glacial lake. Since the 1970s, this lake has been transformed from a pristine lake drip-fed by untouched glacial meltwater into a looming threat. During the past 50 years, the volume of the lake has increased 34 times over. The threat of its bursting its banks and destroying lives, homes, and livelihoods is a question not of “if”, but “when”.

This threat is not novel. In 1941, water surged down from the lake, killing 1400 and destroying vast swaths of the burgeoning town. But the town recovered, and has grown dramatically in the intervening years, just as the lake has grown in volume alongside it. It is this mutual growth that makes the threat of flooding exponentially greater than before. For the district court of Essen, one question is whether it is emissions from companies such as RWE which have elevated this threat to precipitous levels.

 

ON THIS question, the answer is clear. There is little doubt that the emissions flooding into the atmosphere from countries in the West, such as Germany, are playing a critical part in how the climate crisis is becoming manifest on other continents. It is self-evident that RWE’s carbon emissions (about 0.5 per cent, Mr Lliuya’s lawyers calculate) have contributed to the greenhouse effect. It is equally self-evident that the volume of water hovering over Huarez is increasing because of this effect.

What is not self-evident is whether the question that Mr Lliuya is asking the judges is one for the courts at all. Typically, for a court to remedy a wrong, it must be a wrong that occurs within the court’s jurisdiction, and the parties to the case must be “neighbours”. This is hardly the case here. Huaraz is on a continent on the other side of the planet. Lliuya is a neighbour of RWE, or its directors, only in the most abstract of senses.

Nevertheless, the case has been allowed to proceed. In the UK, it would have been thrown out at a preliminary stage, as it would have been in almost every other country’s courts.

This is not a power-grab by the German courts, but demonstrates engagement with two key elements of German law. In 1900, German legislators passed Section 1004, legislation requires that, if someone’s “ownership is interfered with . . . the owner may require the disturber to remove the interference”.

Seemingly intended to deal with questions of nuisance between neighbours, this legislation, Mr Lliuya’s lawyers have argued, has the scope to cover environmental pollution on a global scale. As the appellate court found, “some types of effects cannot be kept within specific boundaries”, and the spread of emissions “across the border” can be laid at the feet of the polluter “as a consequence of their action”.

Mr Lliuya’s lawyers seek to couple this legislation with the animating principle of German law, which is that the values contained in its Basic Law have a “radiating effect” (Ausstrahlungswirkung). Courts must interpret private legal rights in line with these values. Intended to ensure that Germany could not proceed down a path to authoritarianism once more, this provision means that the relationship between values and law is policed by the courts. Any infringement of fundamental rights must be proportionate to the objective.

Should the Court find that Mr Lliuya is a neighbour of RWE, the question would hinge on whether requiring RWE to reduce its emissions would be a proportionate response.

 

HUMAN lives around the world are interwoven, at no matter what geographical distant these lives are lived. Pope Francis has lamented “what is happening to our common home”; and it is this commonality that should push the judges towards deciding that Mr Lliuya is a “neighbour” deserving of protection.

As the Archbishop of Canterbury told the House of Lords, climate-related disasters displaced almost 25 million people in 2019 (News, 6 April). The Bishop of Oxford, Dr Steven Croft, meanwhile, spoke in support of the “Big One” climate protest that took place in April, and bemoaned the degrading of the “once-rich tapestry of life on earth” (News, 6 April).

If Western states do not act now to protect our distant brethren’s land, they will be forced to migrate by the slow-motion flooding of the earth, becoming neighbours in spirit and reality.

Nicholas Reed Langen is a writer on legal and constitutional affairs, a former Re:Constitution Fellow (2021-22), and editor of the LSE Public Policy Review.

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