Page - 479 - in Loss and Damage from Climate Change - Concepts, Methods and Policy Options

20 TheCaseofHuaraz:FirstClimateLawsuit onLoss… 479 20.3 TheRuling TheFirst-InstanceJudgement Inlate2016,thedistrictcourtofEssendismissedthecaseinthefirstinstancedenying theexistenceof legally-relevantcausationbetweenthegreenhousegasemissionsby RWEand the endangerment of the claimant’s property.Basically, the court argued that the processes of climate change and its consequences are so complex that it is virtually not possible to prove an individual causal link betweenCO2 emissions of single emitters and specific climate change impacts. The court further argued, withreferencetotheprincipleof“adequacy”, that therearemanycontributors to the overall greenhouse gas burden in the atmosphere, and consequently the share of a singleemitter is irrelevant for the specificclimatechange impacts caused. TheAppeal In the appeal lodged with the next-higher instance, the Higer Regional Court ofHamm,NorthRhine-Westphalia, the claimant asserted that the lower courtmis- judgedtheissuesconcerningcausality.Hearguedthatthereisascientificallyprovable causalchainbetweenCO2emissionsfromRWE’semissionsandtheincreasingdan- ger to theclaimant’spropertybeingexposedtoapossibleoutburstfloodcausedbya glacial iceavalanche.Thiscausalchaincanbeestablishedaroundfourclearlydefin- able steps: (1)A certain definable proportion ofCO2 emissions fromRWEpower plants endup in theatmosphere.Theycontribute tohigherconcentrationsofgreen- house gases in the entire atmosphere—irrespective of the origin of emissions—as describedbyphysical laws (Cubaschetal. 2013); (2)Due to the increasingconcen- trations of greenhouse gases, radiative forcing in terms of the absorption of solar radiationincreases,whichcorrelateswithanincrease inaverageglobal temperature. In the PeruvianAndes, specifically, this has led to regionalwarming and no other reasonshavebeenobservedfor therise inaverage temperature (Magrinetal.2014); (3) Increased temperature leads to accelerated glacial retreat and heavily increases theprobabilityofglacial iceavalanches (Magrinetal.2014); (4)Due toaccelerated glacialmeltingtheglacial lake’svolumeincreaseswhichconsequentlyfurtherraises the risk of harm to the claimant’s property by an outburst flood caused by glacial ice avalanches.Additionally, the claimant—referring to the principle of adequacy, as used by the court, asserted that the contribution of RWE, the largest emitter in Europe to climate change, is not as low as not too carryweight. Accordingly, the claimant demanded a contribution fromRWE to riskmanagementmeasures at the lake commensuratewith the company’s contribution toglobalCO2 emissions.The claimant asserted that there is no legal reasonwhy a large emitter, such as RWE, shouldbeexempt fromitsclimate-related legal responsibilities, and thatabigemit- ter shouldnotbe treated like thenumerouscollectively irresponsiblesmallemitters, whose individual contributions toclimatewarmingare indeednotmeasurable.