Background

Less than a year ago, the German Federal Constitutional Court held that the provisions of the German Federal Climate Change Act (Bundesklimaschutzgesetz – "KSG") governing national climate targets and the annual emission amounts allowed until 2030 are incompatible with fundamental rights insofar as they may burden later generations disproportionally (order of 24 March 2021, case no. 1 BvR 2656/18 – so-called "Climate Protection decision", an English translation of the headnotes can be found here).

The Court found that in general the government did not violate its constitutional duty to protect the complainants from the risks of climate change or fail to satisfy the obligation arising from the Basic Law (Grundgesetz) to take climate action by passing the KSG. The basis of the KSG is the obligation under the Paris Agreement − which entered into force on 4 November 2016 − to limit the increase in the global average temperature to well below 2°C and preferably to 1.5°C above pre-industrial levels, as well as the commitment made by the Federal Republic of Germany to pursue the long-term goal of greenhouse gas neutrality by 2050. The KSG makes it obligatory to reduce greenhouse gas emissions by at least 55% by 2030 compared to 1990 levels and sets out the reduction pathways applicable during this period by means of sectoral annual emission amounts.

What the Court did take issue with, however, is that the KSG irreversibly offloads major emission reduction burdens onto periods after 2030. For the Paris target to be reached, the reductions still necessary after 2030 would have to be achieved with ever greater speed and urgency, severely impacting practically every type of freedom because virtually all aspects of human life still involve the emission of greenhouse gases and are thus potentially threatened by drastic restrictions after 2030. The Court held that the government should have taken precautionary steps to mitigate these major burdens in order to safeguard the freedom guaranteed by fundamental rights, and gave the federal government until 31 December 2022 to specify in particular in greater detail how the reduction targets for greenhouse gas emissions are to be adjusted for periods after 2030. The (then) German federal government reacted immediately and further adjusted the reduction targets until as well as after 2030.

The current decision

Relying on the Climate Protection decision, the complainants in the current case argued that also the federal states [Bundesländer] violated their constitutional rights – some by passing inadequate climate protection laws, others by failing to provide for reduction paths for greenhouse gases at all. As a result of either violation, so the complainants argued, their freedom rights would not be sufficiently protected because they stand to face enormous CO₂ reduction burdens in the future.

The Court first affirmed its previous holding that while the government is required under the Basic Law to take protective measures against the risks of climate change and to take climate action, it must not shift the resulting greenhouse gas reduction burden unilaterally to later periods of time if this leads to a disproportionate burden for future generations. The Court also confirmed that complainants may lodge a constitutional complaint against regulations that set forth the total amount of CO₂ that may be emitted in the near future if such regulations are already tantamount to an invasion of fundamental rights with respect to later periods.

But as the Court clarified, such a "pre-effect" tantamount to an invasion of fundamental rights presupposes that the respective government is itself subject to a roughly recognizable budget of total CO₂ emissions that may still be permitted. The Court added that in order to substantiate a claim that future freedom rights are disproportionately restricted, as a rule the constitutional complaint must be directed against the regulation of the totality of still potentially permissible CO₂ emissions, as normally only these – and not any selective action or omission on the part of the government – would disproportionately shift the reduction burdens as a whole to the future. The Court found that in the case at hand already the first requirement was not met: there are no reduction targets to be found in the Basic Law or in simple federal law from which at least rough residual CO₂ budgets for the individual federal states could be derived.

The Court also held that a lack of climate protection laws on the federal state level was irrelevant. According to the Court, given that there is already a federal climate protection law in place – which was further enhanced after the Climate Protection decision –, it is not apparent that the absence of state-level climate protection laws could change the above analysis.

Summary and Outlook

In its current decision the Federal Constitutional Court confirmed the following findings from its Climate Protection decision:

• The government is obligated under the Basic Law to take protective measures against the risks of climate change and to take climate action.
• The government has a certain leeway to do so by identifying the concrete measures, such as setting reduction targets or residual CO₂ budgets.
• Once the government identifies such a measure, it must ensure intergenerational fairness and refrain from burdening later generations disproportionally.

It follows from the foregoing that as long as no specific measure has been taken, no invasion of fundamental rights has occurred and thus no constitutional complaint can be brought.

These considerations will most likely be taken into account by the ordinary courts when deciding civil lawsuits brought with regard to CO₂ emissions issues.

Authored by Nicole Böck, Carla Wiedeck, and Thomas N. Pieper.