Concluded and pending climate litigation
The The Hague District Court caused a stir when it decided that Royal Dutch Shell was under an obligation to reduce the annual CO2 emissions of the Shell group's global operations by 45% by the end of 2030, relative to those of 2019 (the The Hague decision). The The Hague decision may still be overturned at second instance, but the imminent question remains of whether the The Hague decision is just the beginning. This article analyses whether climate-related decisions against corporations may also be possible in Germany by providing a summary of:
- concluded and pending climate litigation; and
- potential claims and their respective legal hurdles relating to claims for:
- injunctive relief; and
In brief, based on existing case law, potential claims often fail due to not establishing a sufficient causal link between emissions and the individual relief sought.
Concluded and pending climate litigation
In 2021, in a landmark ruling, the Federal Constitutional Court decided on a case directed against the German policy on climate change. The Court found parts of the Federal Climate Change Act, Germany's main legislative instrument to fulfil its obligations under the Paris Agreement, to be unconstitutional, given that they lack sufficient specifications for further emission reductions from 2031 onwards. Similar proceedings are underway against Bavaria, North Rhine Westphalia and Brandenburg in relation to their respective laws.
A civil law case concerning the utility company RWE is currently pending. In 2015 a Peruvian farmer from Huaraz, a city in the Andes situated at the foot of two glaciers, sued RWE. As these glaciers melt, the water levels of the glacial lake beneath them rises, threatening to flood the valley in which Huaraz is situated. The plaintiff – supported by non-government organisations – argued that the glaciers are melting due to anthropogenic climate change. The farmer demanded that the respondent contribute to the costs of safety measures, in proportion to its purported share of emissions of greenhouse gases since the beginning of industrialisation, which he asserted amounted to 0.47%. The first-instance court dismissed the claim.(1) According to the court, RWE could not be classified as a wrongdoer in the sense of German nuisance law because there was no sufficient causal link between its emissions and the rising water levels in the lake. However, the plaintiff may appeal. The Hamm Higher Regional Court ordered that evidence be taken by seeking expert opinions on the plaintiff's key assertions that:
- CO2 emissions lead to global warming;
- the local increase in temperature had led to an accelerated melting of the glaciers, which had led to an unsustainable rise of the water level in the lake; and
- RWE's emissions had measurably contributed to the aforementioned causal link.
In its order, the Court made it clear that if causality can be proven, RWE may be liable towards the Peruvian farmer despite the fact that RWE had acted lawfully (ie, it had operated its power plants in compliance with its permits).
Under section 1004 of the Civil Code, a proprietor may seek an injunction for a present or imminent impairment of their property. This provision is applicable to other erga omnes rights such as health.(2) It is a prerequisite of the claim that the impairment is unlawful; however, negligence or other forms of fault are unnecessary preconditions for an injunction.(3) Climate or climate protection cannot be invoked as an individual right. The problematic key prerequisite is causation.
Any individual bringing a claim based on section 1004 of the Civil Code must prove that the actions of a corporation have had an impact on the property or individual's health. In case of climate change – as the RWE case shows – the assertion can be only that there is an indirect impact (ie, that CO2 emissions generated by RWE's power plants since the beginning of industrialisation have caused climate change, which, in turn, affects the individual's rights). This indirect impact – like for all other potential reliefs – is the salient problem. While a "disturber" within the meaning of section 1004 of the Civil Code is a person causing the interference directly or only indirectly through their actions, it is difficult to prove climate change-based interferences with individuals' legally protected interests, since they occur only as a consequence of a combination of various other factors.
To establish causation, the conditio sine qua non formula must be applied. Pursuant to this formula, an act has caused an injury if the injury would not have happened without the occurrence of the act in question. While there is an almost unanimous scientific consensus on the causality between the greenhouse gas emissions of major emitters and global warming in general, it is difficult (or even impossible) to extend the causal chain to specific environmental changes ultimately leading to the impairment of a person's individual rights.(4) There is no linear relationship between emissions and global warming, bearing in mind that many other factors (eg, deforestation) also contribute to these effects. On average, extreme weather conditions increase due to global warming. However, any single event – such as a storm or flood – could still have happened without global warming. The crucial aspect is that even a cumulative contribution to worldwide emissions, and thus to global warming, is insufficient because the act must be casual for the specific injury – it must be proven that the specific injury would not have happened if not for the specific contribution of an individual emitter.(5) It could be argued that this cannot be proven.
The Huaraz case may serve as an apt example in this regard. In its decision, the Essen Regional Court emphasised that the pollutants emitted by the respondent "are only a fraction of a countless amount of other pollutants that are discharged by a great number of small- and large-scale sources".(6) In applying the "but for" test, the flood risk must not exist but for the respondent's past and future greenhouse gas emissions. The Court concluded that this was not the case:
In light of billions of concurrent emitters worldwide, even the emissions of large-scale emitters such as the respondent, are not of such significance that climate change and the resulting flood risk would not exist, had the respondent not caused the emissions.(7)
In line with Federal Supreme Court case law on forest degradation in the 1970s and 1980s, it is also assumed that section 1004 of the Civil Code, on which the RWE claim was based, would require that a specific damage or infringement could be attributed to the individual contribution of RWE, which, undisputedly, is not possible for CO2 emissions. By ordering the taking of evidence, the second-instance court appears to believe that causation can nonetheless be shown. As such, it not only takes a different stance on the facts, but also on the law. However, there can be little doubt that such a stance would be scrutinised by the Federal Supreme Court.
Another prerequisite that may come into play is unlawfulness and the question of whether the emitter may be excused from any liability because it has been operating under public permits. Generally, the proprietor can request an injunction against certain actions only if these actions are unlawful.(8) However, views differ as to what this may mean in a case such as Huaraz when the claim is not directed against the emissions themselves, but instead aims to resolve the current state (eg, preventing the lake from overflowing). Pursuant to the Hamm Higher Regional Court's decision in Huaraz, RWE argued that it would be contrary to the principles of German law on protection from emissions if it were held liable, given that its actions were and remain legal. The Court took a different view – namely, that the lawfulness of the actions leading to a certain state was not relevant because the claim was not aimed at these actions, but instead at the state of the threat to the Peruvian farmer's property that, purportedly, had been caused by such actions (even if only by 0.47%).
There are several potential bases for damages claims, but causation must be proven for each one.
Under section 823(1) of the Civil Code, damages can be claimed for the wrongful infringement of protected rights such as property or health. Compensation for purely economic damages cannot be claimed. The climate itself does not qualify as a protected personal right. The problematic key requirements for climate change claims are:
- unlawfulness; and
To enable an individual to claim damages, the change of the climate (in this case, the rise in temperature) must have manifested itself in a damage to that individual's rights – namely, in an infringement of that individual's property or health. Given the long causal chains between emissions and possible individual damages, it is difficult (if not impossible) for the purposes of an injunction relief to prove that a certain emission has caused the claimed damage. It seems equally difficult to establish unlawfulness if emission limits and standards are adhered to or an operating permit is in place, and the same is true for the fault requirement.(9) However, this does not mean that it is entirely inconceivable that a German court may develop a duty of care for corporations to reduce CO2 emissions in order to safeguard the rights protected under section 823 of the Civil Code. In substantiating these duties, it could, in a similar fashion to the The Hague decision, refer to soft law instruments such as the one-and-a-half degree limit in article 2 of the Paris Agreement, rather than the national regulations already in place. However, such an argument would jeopardise the principle of legal certainty that is guaranteed by the Constitution. If a court were to uphold such an argument, it would essentially, and unlawfully, take over the role of the legislature with retrospective effect. In any event, such an argument would not solve the problem of causation. In addition, to the extent that foreign companies are affected, this may give rise to investor-state arbitrations.
Under section 823(2) of the Civil Code, damages can be claimed for a breach of a statutory norm intended to protect private interests. This is the case when the legislative purpose of the statute in question is to protect the individual who incurred harm as well as the specific interest that was violated against the specific kind of behaviour in which the tortfeasor engaged.(10) Whether a given statute is enacted with this intention is a matter of interpretation and the intention of the legislature and cannot be answered in the abstract. As regards statutes intended to protect the climate – for example, by setting emissions limits and standards – this seems doubtful, given that climate protection is a typical public concern rather than one aimed at the protection of an individual.(11)
Section 826 of the Civil Code imposes liability for any kind of harm sustained, including purely economic harm, but only where it can be shown that the tortfeasor acted with the intention to harm and in a manner that is against public policy. With regard to climate change actions, this is seldom the case and, at any rate, difficult to prove.
Last, special rules for environmental liability can be found in the Environmental Liability Act (ELA). Pursuant to sections 1 and 2 of the ELA, injuries to body, health or property caused by certain plants' environmental impact must be compensated by the respective plant's operator. This liability is limited in two respects but exceeds the general tort liability in one. First, the ELA covers only environmental impacts caused by certain plants, listed in its appendix 1, among them:
- power plants;
- combined heat and power plants; and
- combustion installations, as operated by large-scale emitters of greenhouse gases.(12)
Secondly, the amount of damages is capped at €85 million per environmental impact (section 15 of the ELA). Unlike the general tort liability, sections 1 and 2 of the ELA stipulate a strict liability, for which neither unlawfulness nor culpability are required.(13) Strict liability is based on the principle that liability flows directly from the risk created by the operation of a plant. It does not require the unlawfulness or breach of duty by the plant operator.(14) Consequently, the adherence to emission limits and standards or the existence of an operating permit does not preclude a claim under the ELA. However, the same hurdles in relation to causation exist as they do for all other potential bases of claims.
For further information on this topic please contact Anke C Sessler or Max Stein at Skadden Arps Slate Meagher & Flom LLP by telephone ( +49 69 742 200) or email ([email protected] or [email protected]). The Skadden Arps Slate Meagher & Flom LLP website can be accessed at www.skadden.com.
(1) LG Essen, decision of 15 December 2016, 2 O 285/15.
(2) Wagner and Arntz, "Climate Change Litigation", Kahl and Weller, p 409.
(6) Supra at 1, p 7 (translation by Wagner and Arntz, "Climate Change Litigation", Kahl and Weller, p 414).
(8) Cf BeckOGK/Spohnheimer, 5/2021, section 1004 of the Civil Code Rn 47.
(9) See Wagner and Arntz, Liability for climate damages under the German law of torts, pp 419-422.
(11) Wissenschaftlicher Dienst des Bundestags, Rechtliche Grundlagen und Möglichkeiten für Klima-Klagen gegen Staat und Unternehmen in Deutschland, WD 7 - 3000 - 116/16, p 11.
(12) Weller, Nasse and Nasse, "Climate Change Litigation", Kahl and Weller, p 398.