On 2 February 2022, the German Federal Constitutional Court ("GFCC") published an order dated 18 January 2022 by which it refused to hear the case of eleven constitutional complaints of young climate activists. The complaints targeted both existing climate change legislation at State level and the failure of some State lawmakers to legislate in a reduction path for greenhouse gas ("GHG") emissions.
The Facts of the Case
Following the much-discussed GFCC decision of 24 March 2021 in Neubauer et al. v. Germany1, a group of plaintiffs, including Fridays for Future activists, several minors and young adults backed by the German environmental NGO Deutsche Umwelthilfe e.V. ("DUH") submitted 11 separate complaints against 102 German States3 in 2021.4 Essentially, the plaintiffs' aim was to involve more the States in implementing the goals of the Paris Agreement.
The plaintiffs argued that the current climate change legislation in some States5 and the complete lack thereof in other States6 violated their future fundamental freedom rights and the State's duty to protect life, health, and property under the German Constitution.7 As in Neubauer et al. v. Germany, the plaintiffs were mostly minors and young adults. In the same vein as in the complaint against the Federal Republic of Germany, the plaintiffs argued that their future freedom rights are not adequately protected because enormous GHG emission reduction burdens could fall on them without the States having taken the necessary measures to contain such burden. Furthermore, the plaintiffs contend that the States have a public obligation to act in order to protect their fundamental rights to health, life and property, which results from the constitutional duty of the State to protect the environment8.
The GFCC's Decision
Unlike in Neubauer et al. v. Germany, the GFCC refused to admit the case to decision. The GFCC found that the constitutional complaints plainly lacked prospects of success.9
At the outset, the GFCC conceded that the plaintiffs, in principle, can combat regulations that determine the total amount of permissible GHG emissions in the near future, if such determination subsequently affects the plaintiffs' fundamental freedom rights by making far stricter emission regulations necessary in the future.10 The GFCC also acknowledged that the States play a fundamental role in implementing and enforcing the targets of the Paris Agreement and the duties of the Federal Republic of Germany under the German Constitution and the German Federal Climate Change Act.11
However, the GFCC stated that the regulations at issue (or their absence in some States) do not preemptively affect future freedom rights, because the legislators at State level have no duty to abide by a given GHG emission budget. Accordingly, the State regulations do not entail a specific reduction burden, as did Section 4(1), third sentence, in combination with Annex 2 of the 2019 German Climate Change Act, which was the object of dispute in Neubauer et al. v. Germany. Moreover, the GFCC held that neither the German Constitution nor German national legislation impose the observance of such GHG emission budgets on State lawmakers. The GFCC thus clarified an important distinguishing factor between Neubauer et al. v. Germany and the cases at hand: Neubauer et al. v. Germany was successful because the Federal Republic of Germany is obliged to implement emission-reduction targets, but the existing federal legislation was insufficient and shifted emission reduction-burdens inappropriately to future generations. The cases at hand were unsuccessful because – although the existing state-level legislation may be insufficient – the states are neither obliged, nor is it even clear if they have the competence at all to implement emission reduction-targets independent from the targets on the federal level.12
Finally, the GFCC held that the States' legislation or absence thereof does not violate the State's duty to protect the plaintiffs' fundamental rights. The GFCC argued that such a legal framework protecting the plaintiffs' fundamental rights exists in the shape of the Federal Climate Change Act. Therefore, no violation of such protection duty can derive from insufficient or non-existing legislation at State level.13
What to Expect Next?
The decision may seem like a setback for climate activists following Neubauer et al. v. Germany. While activists may still explore the route of filing similar complaints with the Constitutional Courts of the States for violation of fundamental rights under the State Constitutions, the GFCC's decision nevertheless delivers a clear message: only the Federal Republic of Germany is competent for regulating the consumption of emission budgets. The decision thus reduces the number of potential addressees for requests of GHG emission reductions to one subject in the public sector, i.e. , the Federal Republic of Germany itself.
It is yet to be seen whether this concentration of responsibility also extends beyond the public sector, making lawsuits against heavy emitters in the private sector baseless. On the one hand, this decision may merely clarify who is competent for GHG emission reduction between the Federal Republic and the States. On the other, it could indicate that the Federal Republic of Germany is alone liable for implementing and enforcing the compliance with GHG emission budgets, discharging private actors as well.
In the meantime, the DUH already announced it is preparing new lawsuits against the Federal Republic of Germany to implement stricter climate change legislation. Such stricter legislation should also have concrete objectives, such as a speed limit on German highways, incentives for eco-friendly building refurbishments or the protection of carbon-storing ecosystems.14
Overall, this is a strong indication that the wave of German climate change lawsuits is far from abating.
1 GFCC, order dated 24 March 2021, docket no. 1 BvR 2656/18 et al.; see also our previous Client Alert: Dr. Markus Burianski, Dr. Federico Parise Kuhnle, "Reshaping Climate Change Law", 14 July 2021, available at: https://www.whitecase.com/publications/alert/reshaping-climate-change-law.
2 Two different (groups of) plaintiffs filed a complaint against the State of North Rhine-Westphalia.
3 Similar to States in the USA, a German State (Bundesland) is a partly sovereign federal state that is member of the Federation (Bund), which constitutes the Federal Republic of Germany.
4 Baden-Wurttemberg, Bavaria, Brandenburg, Hesse, Lower Saxony, Mecklenburg-Vorpommern, North Rhine-Westphalia, Saarland, Saxony, and Saxony-Anhalt.
5 Baden-Wurttemberg, Bavaria, Lower Saxony, and North Rhine-Westphalia.
6 Brandenburg, Hesse, Mecklenburg-Vorpommern, Saarland, Saxony, and Saxony-Anhalt.
7 Articles 2(1), 2(2) and 14(1) of the German Constitution.
8 Article 20a of the German Constitution.
9 GFCC, order dated 18 January 2022, docket no. 1 BvR 1565/21 et al., available (in German) at: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2022/01/rk20220118_1bvr156521.html.
10 GFCC, order dated 18 January 2022, docket no. 1 BvR 1565/21 et al., paras. 9, 13, available (in German) at: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2022/01/rk20220118_1bvr156521.html.
11 GFCC, order dated 18 January 2022, docket no. 1 BvR 1565/21 et al., para. 16, available (in German) at: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2022/01/rk20220118_1bvr156521.html.
12 The GFCC explicitly left this question unanswered, cf. GFCC, order dated 18 January 2022, docket no. 1 BvR 1565/21 et al., para. 13, available (in German) at: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2022/01/rk20220118_1bvr156521.html.
13 GFCC, order dated 18 January 2022, docket no. 1 BvR 1565/21 et al., para 18, available (in German) at: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2022/01/rk20220118_1bvr156521.html.
14 "Länder können nicht zu Klimaschutz verpflichtet werden", Legal Tribune Online, 1 February 2022, available (in German) at: https://www.lto.de/recht/nachrichten/n/bverfg-1-bvr-1565-21-klimaklagen-gegen-laender-erfolglos-kein-co2-emmissionen-budget.
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