Will polluters pay? Evidentiary hearings in the case of Lliuya v. RWE in the wider European context
As a decision approaches in the landmark climate litigation case brought by a Peruvian farmer against a German electricity producer, Nina Koistinen, Catherine Higham and Joana Setzer compare this case with others where claimants are alleging transboundary climate-induced harm against companies – and explain the importance of doing so.
On 19 March 2025, the Higher Regional Court of Hamm is expected to issue its first substantive evidentiary decision in the case of Lliuya v. RWE (referred to henceforth as ‘Lliuya’). First filed a decade ago in 2015, the case concerns a farmer and mountain guide, Saúl Luciano Lliuya, whose home – situated in the city of Huaraz below the glacial Lake Palcacocha in the Peruvian Andes – is threatened by flood risk due to climate change-induced glacial melt. Lliuya filed the action, which is based in German property law, against RWE, Germany’s largest electricity producer and a company with longstanding involvement in coal mining. As the claimant, Lliuya seeks an order requiring RWE to make a pro rata contribution to flood protection measures in proportion to its contribution to global greenhouse gas emissions.
This case has already made legal history. In November 2017, the Court issued a seminal decision recognising that the claimant had an arguable case and should be granted standing to bring legal proceedings, thus allowing the case to proceed to the evidentiary phase. This was the first time that a court anywhere in the world had allowed a case against a company relying on climate attribution science to proceed. At the hearing this week, the Court will determine whether there is sufficient evidence to establish that there is a real and imminent risk to Lliuya’s property posed by Lake Palcacocha. If the claimant is successful on this front, the case will move on to further discussion of the evidence linking RWE to the danger.
Even if the claimant is unsuccessful, this case has already been part of reshaping legal thinking on climate-related harm in Europe and elsewhere. It is now one of more than 30 cases around the world that make similar arguments. In this commentary, we consider the similarities and differences between the case and its two closest comparators, the cases of Falys v. TotalEnergies, and Asmania et al. v. Holcim. Both cases were also filed before European courts and involve claimants alleging transboundary climate-induced harm against major emitting companies. Even in the event that this week spells the end of proceedings in Lliuya, we argue that these similar cases may yet go on to succeed.
Two further cases: the background to Falys and Asmania
In Falys v. TotalEnergies (referred to henceforth as ‘Falys’), a Belgian cattle farmer brought an action challenging the conduct of French company TotalEnergies based on extra-contractual civil liability. The farmer, Hugues Falys, has been supported by three non-governmental organisations (NGOs): FIAN, Greenpeace and Ligue des Droits Humains. The applicants request a suite of remedies, including the imposition of quantified emissions reduction obligations, a prohibition on investments in new fossil fuel projects, and damages for both material and non-material harm caused by climate change change-related extreme weather events. The case, filed on 1 March 2024 before the Commercial Court of Tournai, is scheduled for hearings on 19 and 26 November 2025.
In the second case, Asmania et al. v. Holcim (‘Asmania’), the claimants are four individuals residing on the Indonesian island of Pari (where the eponymous claimant owns a guesthouse), which is vulnerable to climate change-induced flooding as a result of sea-level rise and extreme weather events. They brought an action against the Swiss cement corporation Holcim before a Swiss court in January 2023, seeking compensation for climate damages, a financial contribution to flood protection measures, and an order requiring Holcim to rapidly reduce its group-wide CO2 emissions.
Below, we outline key areas of similarity and difference between these cases and Lliuya.
The temporal dimension of the damage
In Lliuya, the current question before the court is whether the risk of a flooding event is sufficiently significant that RWE should be required to intervene to mitigate that risk. A similar set of questions arises in Asmania, which also primarily concerns threatened future injuries (aside from a claim for emotional damage). In both these cases, although the conduct that creates the alleged risk has already occurred, the material injury itself is yet to materialise.
For Asmania the imminence of the harm complained of has implications for the establishment of a legitimate legal interest, and thus the fulfilment of standing requirements. Asmania and her co-claimants contend that the requirement of a legitimate interest should be broadly recognised in line with constitutional guarantees. The imminence of the risk is emphasised by reference to the ongoing nature of the defendant’s conduct: warnings or other interventions have not led to changes in Holcim’s business activities. The applicants also point to Holcim’s group-wide climate strategy as evidence of its intention to continue pursuing the same line of action into the future – that is, producing excessive emissions, which will be in violation of individual rights.
This obstacle, which may well prove surmountable in both cases, is less relevant in the case of Falys, where the injuries complained of, and the extreme weather events that caused them, have already occurred. Thus, it may be easier for the Falys case to overcome at least the initial hurdle of establishing the claimants’ legitimate interest in the proceedings.
Where does the harm arise and which law should apply?
In all three cases, the claimants live in a country other than that in which the defendant corporation is domiciled. In legal terms, this means the claimants have a choice about which courts to apply to and which law should be applied.
In Lliuya, this issue of which law applies has long been settled, and it is clear that a similar approach is being applied by the claimants in Asmania. Under Swiss law, the general position is that the applicable law is the law of the state in which the unlawful act giving rise to the damage alleged was committed. In this case, the conduct giving rise to the damage is Holcim’s continuation of high-emitting activities. The application of the polluter pays principle and the principle of rectification at source supports the idea that the issues should be resolved in Switzerland under Swiss law.
In Falys, there is a difference in strategy that is likely explained by the fact that although transboundary harm is still at issue, the case involves two EU member states. Under EU law, the default position is that the applicable law should be that of the country in which the damage occurs (although this can be reversed in environmental cases as we have seen in Lliuya). In Falys, since the claimant lives and works in Belgium, the default is that Belgian law should apply.
While this question about choice of law is highly procedural in nature, depending on how the outcomes of the cases diverge it may have ramifications for the potential for future cases to be brought by claimants in the Global South and enforced against companies in the Global North.
The role of Scope 3 emissions
If the Asmania and Falys cases overcome their preliminary hurdles, the focus will then shift to scientific questions, particularly source attribution science, which the claimants use to quantify the defendants’ responsibility for greenhouse gas emissions. One interesting difference between the cases is the degree to which they argue for liability over Scope 3 emissions – those generated downstream in the value chain, notably from the use of goods and services by consumers and corporate clients.
While both Falys and Asmania reference the scope of emissions, Lliuya does not. This may be due to its earlier filing, before the widespread adoption of this terminology, and to RWE’s role as an electricity producer rather than a fossil fuel supplier. In Asmania, most of the defendant’s emissions fall within Scope 1 (from cement production), but the claimants still argue that due diligence obligations and human rights impose a duty of care to reduce emissions through the entire value chain, including emissions from Scope 1–3, reflecting the higher degree of engagement with this concept by the legal community in the years since Lliuya was filed.
In Falys, Scope 3 emissions play a central role, given that the defendant is a fossil fuel producer with a high volume of downstream emissions. The claimants cite the case of Milieudefensie v. Shell, where the Hague District Court ordered Shell to reduce Scope 1, 2 and 3 emissions in line with the Paris Agreement global temperature targets. Although this ruling was overturned by the Court of Appeal, the principle that Scope 3 emissions must be included in the calculation of corporate emissions for the purpose of determining the fulfilment of a duty of care persists. The Court of Appeal dismissed Shell’s argument that it lacks influence over these emissions, referring to several EU legal instruments, the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct, and the Greenhouse Gas Protocol, as well as Shell’s own reporting and target-setting (which encompass Scope 3 emissions). While the Hague Court of Appeal refused to impose an order requiring Shell to achieve a quantified reduction in Scope 3 emissions, this case may continue to influence other courts tasked with considering whether companies should have any responsibility for these emissions.
The inclusion (or not) of Scope 3 emissions will have a significant impact in determining whether the defendant corporations bear legal responsibility for climate-induced damages and, in particular, the extent of such responsibility. This is particularly relevant in future cases that may follow the model of Asmania and Lliuya, in which damages are sought on a pro rata basis corresponding to the respondents’ contributions to global emissions. Whether or not Scope 3 emissions are considered to fall within the scope of the respondents’ legal responsibilities will inevitably alter the percentage contribution applicable.
Damages and remedies
Another key distinction between the cases is the types of remedies sought. While Lliuya seeks only damages, Asmania and Falys combine damages with injunctions. These cases combine the backward-looking emphasis on the company’s past conduct found in Lliuya with the forward-looking focus on the company’s future conduct found in Milieudefensie v. Shell.
Regarding the claims for damages, Lliuya and Asmania take a conservative approach, requesting damages proportionate to the respondents’ contribution to global greenhouse gas emissions, rather than seeking compensation corresponding to the full extent of the alleged harm. In Lliuya, the claimant seeks damages amounting to 0.47% of the costs associated with the adoption of protective measures against the risk from a glacial lake outburst flood. This percentage is based on a calculation of RWE’s share of global emissions. Similarly, in Asmania, the claimants seek damages for emotional harm and damage to property, past and future, along with the financing of adaptation measures in the claimants’ locality. Compensation is sought on a pro rata basis plus interest, with the claimants placing Holcim’s contribution to global emissions at 0.42%. For now, the quantum of damages sought in Falys remains ‘provisional’, requesting 1 euro per extreme weather event, and a further 1 euro for non-pecuniary damage.
When it comes to the ‘forward-looking’ aspect of the claims, the claimants in Asmania and Falys request injunctions ordering the defendant companies to achieve quantified emissions reductions. Given the challenges faced in the Milieudefensie case, these arguments may or may not prove successful in the Swiss and Belgian contexts. Importantly, in Falys, the request for an order for emissions reductions is coupled with a request for an injunction prohibiting investment in new fossil fuel projects, something that the Hague Court of Appeal hinted might be a fruitful avenue in the judgment discussed above.
The danger of making assumptions based on one case
It is important to emphasise that each of the courts deciding these three cases has the freedom to take its own view on how to deal with the issues raised by these cases. However, we know that climate change litigation is an area where courts often actively look outside their borders, making reference to the way in which other courts have dealt with the novel and complex challenges that arise in similar cases. By highlighting the similarities and differences between these three cases, we emphasise that even if the Lliuya case is dismissed this week, certain aspects of it may yet be used in support of the arguments raised in Asmania and Falys, while there are also opportunities for the claimants to distinguish their cases from less successful aspects of the argumentation in Lliuya. Companies and policymakers should therefore be wary of making any assumptions about the future of corporate climate liability on the strength of this week’s developments alone.