Constitutional challenges against German states’ climate legislation rejected

On January 18, 2022, the German Federal Constitutional Court decided not to admit for decision several climate-related constitutional complaints supported by the German NGO Deutsche Umwelthilfe (DUH) because the court found that the complaints had no chance of success.

Alleged failures to pass climate protection law

In its judgment of 24 March 2021 relating to the German Federal Climate Protection Act (KSG), the German Federal Constitutional Court recognized that the fundamental rights set out in the German constitution protect against a unilateral transfer of the burden of reducing emissions of CO2 to future generations if climate protection measures to achieve the climate goals of the Paris Agreement lead to disproportionate burdens in the future (see our blog post on the decision of the German Federal Constitutional Court).

Referring to this ruling, the DUH singled out ten German states for failing to adopt a state-level climate protection law, or for the alleged inadequacy of the adopted climate protection laws (see our blog post on the constitutional complaints against the states of Niedersachsen and Baden-Württemberg).

The findings of the Federal Constitutional Court

The Federal Constitutional Court found that the constitutional complaints had no chance of success based on the considerations below.

  • Constitutionally protected freedoms are only threatened in the future if broadcasts are allowed today necessarily will lead to restrictions of fundamental rights in the future.
  • Such a threat only exists if there is a CO2 emissions “budget”, from which a disproportionate amount of emissions is used today, so that the burden of reducing emissions is unilaterally transferred to the future generations.
  • Since there are no reduction targets that would allow the remaining CO2 budgets to be derived for specific federal states, federal states cannot unilaterally transfer this burden onto future generations by implementing CO2 laws. insufficient climate protection or by failing to adopt climate protection laws.

Reasons for judgment

The Federal Constitutional Court has upheld its previous decision that legal provisions setting a budget for total CO2 emissions can be challenged by constitutional complaint if these provisions already jeopardize constitutionally protected rights in the future.

The Court held that, although it is possible (under a state-based emissions reduction approach) to roughly identify a residual budget for the Federal Republic of Germany, there is no reduction targets that would allow the remaining CO2 budgets to be derived for individual states. Therefore, the Federal Constitutional Court held that the plaintiffs in this case were unable to demonstrate that their future freedom was threatened by the federal states’ climate protection laws or the failure to adopt such laws. The Constitutional Court pointed out that due to the federal structure, different regulations for the climate protection measures required by the Constitution are possible. The legislator could set up CO2 budgets for the States but could also choose a different approach and adopt sectoral regulations that do not include any budget for the States.

According to the Constitutional Court, constitutional complaints also have no chance of success when plaintiffs invoke a duty of States to protect them against possible harm to health or property. In this regard, sufficient regulations already exist at the federal level.

Implications of the decision

With this decision, the Federal Constitutional Court finally established that climate protection is primarily a matter for the federal legislator, and not for the Länder. It is only when the federal legislature decides to impose specific emission reduction targets or CO2 budgets on the states that plaintiffs can argue that the states are not taking enough action to meet those targets but are shifting that burden to the future generations.

The question of whether the legislator will impose such reduction targets for the various states is not yet clear for the moment. The Federal Constitutional Court has recognized that there are other legislative mechanisms to share the burden of reducing emissions, for example a sectoral approach. In its coalition agreement, the new government announced the verification of compliance with climate objectives using a cross-sectoral calculation analogous to the Paris Agreement. However, the government has not clarified whether CO2 budgets should be adopted for states, sectors or companies.

The move could also impact climate-related civil lawsuits. These claims are generally based on Section 1004, 823 (1) of the German Civil Code, alleging violation of fundamental rights to health and property as well as the general right to personality/privacy, including claims recently brought against four companies, including car manufacturers. (see our blog post on climate-related lawsuits against German automakers). The plaintiffs argue that the CO2 budget could be allocated to individual states, but could also be allocated to companies based on their market/emissions shares.

However, as the Federal Constitutional Court again points out, it is up to the federal legislator to regulate the distribution of the CO2 budget. Until there are binding state or corporate CO2 budgets, claimants cannot claim that the emissions allowed today will inevitably lead to restrictions on their freedom in the future.

Will the German courts nevertheless follow the plaintiffs’ reasoning and affirm an unwritten duty of care to reduce CO2 emissions by applying non-binding standards comparable to the Shell judgment in the Netherlands (see our Shell judgment blog post; on the importance of this decision for German companies, cf. our customer briefing (in German)) that remains to be seen.

James R. Rhodes