Page - 480 - in Loss and Damage from Climate Change - Concepts, Methods and Policy Options

480 W.Franket al. TheDecision toAccept theCase OnNovember 13th 2017, the Higher Regional Court of Hamm in North Rhine- Westphalia accepted the case Lliuya against RWE. This decision marks the first time that a court acknowledged that a private company is in principal responsible for its share in causing climate damages. This applies if concrete damages or risks to private persons or their property can partly be assigned to the activities of the relevant company.OnNovember30th2017, thecase formallyentered into thenext stage—the taking of evidence. Now that the court accepted the legal argument of this case, the task for the plaintiff is to provide evidence for his claim before the court. The followingquestions play a central role andwill need to be addressed in thehearing • Is Saúl LucianoLliuya’s home in fact acutely endangered by a glacier outburst flood? • DoRWE’shistoricalemissionsreallyamounttohalfapercentofglobalemissions since thebeginningof industrialisation—and ifnot, tohowmuch? • Is thereproof that these emissions contributed to acceleratedglaciermeltingand the riskofflooding inHuaraz? 20.4 TheOutlook The lawsuit raises the issueof responsibilityof large energycompanies for climate change in terms of liability for nuisance and losses and damages. It may act as a model for similar lawsuits in other countries. The acceptance of the case and its entering in theevidentiaryphase itselfhasalreadywritten legalhistory, says lawyer RodaVerheyen: TheOLGHammconfirmed itsvoteof theoralhearingonNovember13th2017: Majoremittersofgreenhousegasescanbeheldliableforprotectivemeasuresagainst climate damages. The decision establishes a solid argument for legally relevant causality in cases that were not accepted before, notably in reference to a nega- tive ruling of the Federal SupremeCourt on acid rain in 1987.Nowwe can prove inaconcrete case thatRWEcontributedandcontinues tocontribute to the riskof a localglacieroutburstflood inHuaraz (Germanwatch2017). Beside theclaimant’s concreteconcernaboutclimatechange impacts inHuaraz, the lawsuit,which isfinanciallysupportedby theFoundationZukunftsfähigkeit and technically supported by theNGOGermanwatch, qualifies as a legal test case. It addressesresponsibilityofenergysupplierswithregardtobearingthesocialcostsof usingfossil fuels,costswhichhavebeenlargelyexternalised.Inadditiontoconfirm- ing theneed forpolitical solutionswith regard to climate change inducedLoss and Damage,thecasehasalsoshowntoinvestorsthattheyoughttoconsiderthepotential costsof legal liabilities in theirenergyinvestmentdecisions.Thesecostsmayfallon large emitters, effectively servingas adisincentive to continuing investing in fossil fuel-basedenergyproduction.