The Regional Court of Hamm Rules on Saul Luciano Lliuya v. RWE – A Relative Defeat

A significant decision for the current climate change debate was delivered on 28 May 2025, by the Higher Regional Court (OLG) of Hamm. The OLG in Hamm has dismissed the climate lawsuit brought by Peruvian farmer Saúl Luciano Lliuya against the energy company RWE. The court ruled that an appeal of this decision is not possible. However, the judgement is not necessarily a defeat for environmental defenders.

Lliuya is the owner of a house located below a glacial lake in the city of Huaraz at the foot of the Andes. He argued that CO2 emissions from RWE power plants had contributed to the glacial melt and thus increased the risk of flooding for his house. He filed his lawsuit against RWE in 2015 and lost his case in 2016 before the Regional Court at the company’s headquarters in Essen. The lawsuit then went to the next instance.

After an intensive hearing of evidence, which included a site visit in Peru in May 2022 and a two-day expert hearing in Hamm in March 2025, the OLG has now dismissed the plaintiff’s appeal.

I partially reproduce the press release available (in German) at the website of the OLG Hamm:

In the oral grounds for the judgment, Presiding Judge Dr. Rolf Meyer stated that the plaintiff may have a claim against the defendant under Section 1004 of the German Civil Code (BGB). If there is a threat of adverse effects, the polluter of CO₂ emissions may be obliged to take preventive measures. If the polluter definitively refuses to do so, it could be determined, even before actual costs are incurred, that the polluter must bear these costs in proportion to their share of the emissions.

The great distance between the defendant’s power plants and the plaintiff’s place of residence in Peru alone was not sufficient grounds to classify the lawsuit as unfounded. The presiding judge particularly emphasized the inaccuracy of one of the defendant’s arguments: The court’s legal opinion does not mean that every individual citizen can be sued in the future. This is contradicted by the fact that the causal contributions of a single person are so small that they cannot give rise to liability. Likewise, the defendant could not invoke its existing duty to provide water under German law to justify interference with the property of the plaintiff, who lives in Peru.

Nevertheless, the plaintiff’s appeal was dismissed because the evidence revealed that there is no concrete danger to his property. The probability that any water from the glacial lake would reach the plaintiff’s house within the next 30 years is only about one percent – ​​a figure that was considered too low. In addition, should this happen, the consequences for the plaintiff’s house would be negligible, as only a tidal wave would reach the house at a height of a few centimeters, and at a flow velocity that would not be able to endanger the structure of the house.

The court rejected the plaintiff’s objections to the expert’s method of this risk assessment. The court followed the expert’s assessment, which considered a specific risk analysis based on local conditions to be appropriate. The general statistical assessment preferred by the plaintiff, in particular the inclusion of a “climate factor” to increase the probability of occurrence, was rejected.

(Note: Under paragraph 1 of Section 1004 BGB, ‘Claims for removal and for injunction’, If the ownership is interfered with otherwise than by dispossession or withholding of possession, the owner may demand from the disturber the removal of the interference in question. If further interference with ownership is to be apprehended, the owner may seek an injunction.)

The environmental organization Germanwatch, which is supporting the Peruvian in the current appeal proceedings, considered the admission of evidence by the Higher Regional Court in Hamm a success. So far, this is the only lawsuit worldwide concerning corporate liability for climate risks that has made it to the evidentiary hearing. The environmental organization stated that the case had a signaling effect like no other climate lawsuit, and has already made legal history.

The decision, with file numner 5 U 15/17 OLG Hamm, will be published in www.nrwe.de.

Update: an analysis by Geert van Calster of the private international law aspects, also linking to the Germand and English versions of the document, and additional review of the judgment as a whole, can be found at https://lnkd.in/ejZNiKMM.