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11 November 2021

The glaciers are melting

RWE, Shell and other companies are being sued for their climate-damaging emissions – with increasing success.

One morning, as Saúl Luciano Lliuya climbs the mountains, he senses that something is changing. All his life, glaciers have nestled between the peaks around his hometown of Huaraz in the Peruvian Andes. “Now you can see it,” he says. “They are disappearing.”

About 30 to 50 per cent of the glaciers in the tropical Andes have melted since 1976. In Lliuya’s region, the water pours into Lake Palcacocha, just a few thousand metres from the town of Huaraz. When a huge chunk of the glacier broke off and plunged into the lake in 1941, it created a wave that killed 1,800 people. The level of the lake is now higher than it was then. Today, 50,000 people live in the water’s expected path.

According to scientific estimates, RWE is responsible for just under 0.5 per cent of global greenhouse gas emissions between 1751 and 2010. In 2015, Lliuya sued the company for reimbursement of some of the costs of protective measures to avert a possible flood wave. RWE is partly to blame for the melting of the glaciers in the Andes.

10,000-kilometre-long and centuries-old causal chains

The lawsuit was laughed off as the cloud-cuckoo-land idea of crazy tree-huggers; the Regional Court in Essen, Germany, quickly dismissed it in December 2016. RWE had not “disturbed” Liuya’s property – there was no “equivalent and adequate causation”.

“Every human being is an emitter, more or less,” the judges said. “If countless large and small emitters release greenhouse gases which mix indistinguishably, change each other and cause climate change via a highly complex natural process, then a causal chain from a specific source of emissions to a specific damage can no longer be identified. […] In view of the millions and billions of emitters worldwide, RWE’s emissions are not so significant that the risk of flooding would not exist if RWE’s emissions did not exist.”

Lliuya disagrees: Just because a lot of people have caused something does not mean that no one is responsible. Every tonne of emissions contributes to climate change and increases the risk of flooding, if only slightly. Lliuya appealed against the ruling.

Meanwhile, in the spring of 2021, the German Constitutional Court’s climate ruling and the decision of the District Court in The Hague against Shell have been handed down. And by now, most people have stopped laughing at Lliuya’s lawsuit.

Intertemporal guarantees of freedom

The Constitutional Court ruled on 24 March 2021: The German climate protection law shifts the burden of emission reductions too much to the period after 2030 and must therefore be improved. The Court said: The constitution obliges the state to protect the climate and achieve climate neutrality. The Paris target of limiting the increase in the average global temperature to well below 2 degrees Celsius is constitutionally binding. On the basis of the global budget, a national emissions budget is to be set. And then come the two key sentences of the decision:

“One generation must not be allowed to consume large portions of the CO2 budget while bearing a relatively small share of the reduction effort if this means that subsequent generations are left with a drastic reduction burden and their lives are exposed to comprehensive losses of freedom. […] As intertemporal guarantees of freedom, fundamental rights protect against comprehensive threats to freedom caused by shifting the burden of greenhouse gas reduction to the future.”

Distribution of liberties

This is a whole new world. Kant used to say (albeit in more complicated words): Everyone can do what they want (fence, drive a carriage, go to the theatre) as long as they do not harm anyone else. This is the basis of the liberal state. Now, however, virtually every exercise of freedom by one person (mining bitcoin, driving a car, watching TikTok) restricts the freedom of another. The emissions budget is getting tighter and has to be distributed.

And also in terms of time. You should not gobble up all the sweets immediately but leave some for your children and grandchildren. The Constitutional Court sees fundamental rights as a bulwark against a short-sighted political system: “Environmental protection is a constitutional matter because the democratic process is organised on a short-term basis via electoral periods, which structurally runs the risk of being slow to respond to long-term ecological concerns; future generations have no voice of their own in the political process.”

All this raises many questions: Is the budget of every child 20 years from now the same as that of an adult today? And the budget of the unborn children’s children? And so on, ad infinitum? And why should a German have the same budget as an African? So far, Africans have contributed very little to climate change, while Germans have contributed a lot in the last 150 years. Isn’t there a principle that says: if you make a mess, you have to clean it up?

The indirect effect of human rights

The District Court of The Hague has gone one step further. In its decision of 26 May 2021, it ordered Shell to reduce its global emissions by 45% by 2030 compared to 2019. The ruling is a sensation, and its implications cannot be overstated.

The court argues: It is true that human rights and international principles such as the Paris target primarily impose obligations on the state and do not apply directly to private parties. However, human rights and international principles are relevant to the interpretation of general clauses in civil law when it comes to determining whether someone is interfering with the legal interests of another. Shell must do more to prevent irreparable damage to the people of the Netherlands.

Criticism of the ruling was not long in coming: Shell’s emission reductions will not reduce the demand for oil and gas products – consumers will simply go to competitors, critics say.

Shell itself has argued that the judges cannot decide who should reduce how much and by what means. Can anyone sue anyone now? Politicians must regulate exactly what is to be done at the national and especially international level.

But it is also clear that politicians have done very little so far. In 1965, scientists informed the then-US President Lyndon B. Johnson about climate change. Since then, not much has happened – on the contrary, emissions are rising every year. Even if countries keep their promises, the Paris target will likely be missed by a wide margin. People like Lliuya have been waiting in vain for an effective climate policy.

With the decisions from Karlsruhe and The Hague, his chances are now not quite so bad. The judges from the Higher Regional Court in Hamm (second instance) want to take a closer look and travel to Huaraz. Lliuya’s case has received worldwide media coverage. It is a classic David versus Goliath story that puts a face to the abstract issue of climate change.

And RWE and Shell are not alone. Lawsuits have been filed against Volkswagen, Mercedes-Benz and BMW.

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