Can fossil fuel companies finally be held responsible for the damage their business models cause?
In Germany, a landmark climate case is set to be decided later this month. It started 10 years ago, when Peruvian farmer Sa煤l Luciano Lliuya began suing German energy giant RWE, saying that the firm鈥檚 contribution to global greenhouse gas emissions makes it liable for a proportion of the increased flood risk at his property.
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Whether or not his case proceeds to the next step, where the court would assess whether RWE鈥檚 contribution to flood risk is legally significant, is almost irrelevant. It has already made history 鈥� and the short answer to my opening question is yes.
The German court made its most important decision eight years ago, when it ruled that Lliuya鈥檚 case wasn鈥檛 only admissible, but that German nuisance law 鈥� which exists in similar forms around the world and says that if your legal activity causes issues for your neighbour, you have to answer for it 鈥� could be applied to far away neighbours, such as those living in Peru.
This means the litigation risk for fossil fuel companies is real. And although that risk may be small at the moment, with stock prices falling by 1.5 per cent due to unfavourable court decisions and no successful damage claims so far, these are early days.
If Lliuya鈥檚 case is dismissed, it will be done on the basis of evidence, with the court assessing whether there is a serious increased flood risk to his home town of Huaraz, high in the Andes. It may decide the risk is low. And although this sounds counterintuitive, that would still be a win, as all previous cases of this sort were dismissed on legal grounds, rather than on the evidence. Compared with making the legal case, providing evidence should be easier, if not for this case then for the next.
When Lliuya鈥檚 case was first filed, only a few studies linked specific weather or climate events to climate change. Today, the field has expanded significantly, with the from the Intergovernmental Panel on Climate Change stating that 鈥渉uman-induced climate change is already affecting many weather and climate extremes in every region across the globe鈥�. This is a statement of fact, without any scientific uncertainty.
A decade ago, courts would have required plaintiffs in climate cases to prove a direct link to the defendant. While this remains standard in new cases, today鈥檚 abundant evidence suggests a reversal of the burden of proof is now warranted. Given that climate change is affecting every region, it would be extraordinary for any specific area to escape significant impacts such as heat exposure, flood risk and other challenges. These factors deeply affect the daily lives of many people worldwide.
So, even if this particular case is dismissed, the scientific evidence linking the emissions of major carbon-producing companies to specific incidents has become stronger since it was first made. If the evidence won鈥檛 fly in this case, it will in the next.
Thanks to the courage and perseverance of Lliuya, the legal precedent has been set for evidence against companies like RWE to be heard. The scientific community has come up with the necessary facts in the meantime.
What we need now, for this to be the start of the end of fossil fuels, is for the rest of us in society to do our bit. Whether we care about human rights, equality, freedom or just don鈥檛 want to spend all our money trying to repair the damage from extreme climate events, we need to get out and tell Lliuya鈥檚 story. If we don鈥檛 hold fossil fuel companies to account, but instead uphold their social licence to destroy lives and livelihoods, the world will only become more unequal and more dangerous.
Friederike Otto鈥檚 new book is (Greystone Books)聽
