by Anna Bortolussi

Ten youths brought a complaint against the State of Brandenburg, Germany, claiming that the state’s failure to set adequate climate protection goals and emission reduction paths was in violation of domestic environmental law and constitutional law. They alleged that failure to mitigate would have effects on the plaintiffs’ human rights and health, as well as damaging animals and nature. 

Country	Germany
Defendants	State of Brandenburg
Law applied	Domestic Environmental Law Constitutional Law Domestic Human Rights Law
Key words	Mitigation Human Rights Health  Biodiversity and Nature Energy

Case Information:

Court(s): Federal Constitutional Court
Dissenting judgement: No
Filing date: 2021
Last Update: 2022
Status: Decided

ISSUES

The question for the court was whether following the decision in Neubauer, et al. v Germany,[1] and the Federal Climate Protection Act (‘Bundesklimaschutzgesetz’ or ‘KSG’),[2] the State of Brandenburg could be in breach of its duty to protect the fundamental rights of the claimants under the Basic Law of the Federal Republic of Germany (Germany’s Constitution),[3] by failing to stipulate a greenhouse gas (GHG) reduction pathway that is adequate and complies with the targets set out in the KSG.

MATERIAL FACTS/BACKGROUND 

In the 2021 case Neubauer et.al, the Federal Court of Germany unanimously declared that the federal government was in breach of its International and European obligations to reduce GHG emissions by failing to set emission reduction goals from 2031 onwards, subsequently violating the rights of the individuals. The court found that a failure to set targets placed a disproportionate risk and burden on future generations and that it was the duty of the federal state to ensure that this risk was kept to a minimum.[4]

Following this decision, on 30th June 2021, three youth plaintiffs and three landowners, with the support of the NGO Deutsche Umwelthilfe, drafted a complaint against the State of Brandenburg. They claimed that by failing to adopt a climate protection law that regulates the amount of permissible GHG emissions in compliance with the remaining CO2 budget, the state is endangering the future rights and freedoms of the claimants.[5] 

The complaint is part of a series of separate constitutional complaints against ten different federal states in Germany. The First Senate of the Federal Constitutional Court issued a unanimous judgement on 18th January 2022 addressing all of the complaints.

THE ARGUMENTS OF THE PARTIES 

The plaintiffs’ arguments:

The plaintiffs claim that their constitutional rights are being violated on two counts. Firstly, due to the inadequacy of the existing climate protection laws and secondly, because of the failure of some state legislatures to create a uniform reduction path for GHG emissions.[6] The plaintiffs highlight that some of the federal states in Germany, such as the State of Brandenburg or the State of Hesse, had not specified any reduction paths at all, or that the chosen pathways were insufficient.[7] 

Considering the limited available headroom for CO2 emissions before atmospheric CO2 concentrations reach levels with catastrophic consequences for the earth, a lack of specific or sufficient commitments to reduce GHG emissions at the state level will have detrimental effects on the claimants’ future freedoms.[8] Moreover, even when there are reduction paths, the lack of guarantees as to the achievement of these reduction targets also increases the risk of substantial restrictions on their future freedoms.[9]

Accordingly, the claimants allege that a lack of climate protection legislation is leading to 2 violations of their fundamental rights as protected by the constitution: 

1. Art 2(1) of the Constitution, which grants every person the right to freedom of development, in conjunction with art. 20a of the Constitution, that places a duty upon the state to ensure that the natural foundations of life and animals are protected for future generations.[10] 
2. Partial violation of the duty to protect that the state has under art. 2(2) 1st sentence of the constitution, which establishes the right to life and physical integrity, and art. 14(1) of the Constitution, which guarantees the right to property and inheritance.[11] 

To ensure that the plaintiffs’ losses of freedom are reasonable and that the burdens to deal with GHG emissions are not placed solely upon future generations, the legislature is under an obligation to implement the necessary reductions in CO2 emissions and changes in lifestyle, as required by the Constitution and the provisions in the KSG.[12]

Respondent’s Arguments:

As the constitutional petition was not admitted for adjudication no arguments of the respondents were presented. 

OUTCOME

On 18th January 2022, the First Senate of the Federal Constitutional Court did not admit the complaints for adjudication.

In their reasoning, the judges, in line with the decision in Neubauer et al., recognised that the obligation to protect against the consequences of climate change cannot be postponed and, if adequate precautions are not taken, there could be a violation on the constitutional rights of future generations.[13] However, as this complaint was only directed against certain acts or omissions by the state (rather than the entirety of the emissions allowed) these actions alone cannot lead to a disproportionate shift in the reduction burdens.[14] Furthermore, the court confirmed that the state legislature retains some leeway on how to regulate the amount of permissible emissions.[15]

The court also recognised that under Art. 20a of the German Constitution, states share the burden and the responsibility of ensuring that steps are taken towards climate protection; this does not fall solely upon the federal government.[16] The court underlined that the targets set out at the federal level cannot be achieved if there are no implementation measures and legislations at the state level.[17] However, there are no specifications from the federal government on the extent of which, where and when emission reductions need to be achieved, or on what the estimation of the residual CO2 emission budget is.[18] 

Furthermore, the court emphasised how states have a limited amount of influence in the areas of climate protection, which was, to date, managed by the federal government.[19] Subsequently, it is difficult to determine state-specific reduction requirements, especially taking into consideration that emission reduction coordination is currently being approached horizontally through individual emission sectors.[20]

On the basis of these grounds, the court rejected the claims, finding that it is not possible to determine the extent to which the state legislature had the necessary powers to reduce or prevent any future violations of the rights contained in Articles 2, 14 and 20a of the Constitution.[21]

Please find the full judgement here (German).

Last edited on 25 May 2023; with thanks to the case editor, Olivia Amura.

REFERENCES:

[1] Neubauer, et al. v Germany [2021] Federal Court of Germany (hereafter ‘Neubauer v Germany’), available here in German [Accessed 17 May 2022] and here in English [Accessed 17 May 2022]. A summary of the case can be found here.
[2] Federal Climate Protection Act (Bundesklimaschutzgesetz) 12 December 2019, accessed here (official English translation).
[3] Basic Law of the Federal Republic of Germany (Grundgesetz) 23 May 1949, accessed here (official English translation)
[4] Neubauer, et al. v Germany, supra note (1)
[5] Emma Johanna Kiehm, et al. v State of Brandenburg  [2022] Federal Constitutional Court of Germany, Decision of the First Senate on 18 January 2022 – 1 BvR 1565/21, 1 BvR 2058/21, 1 BvR 2057/21, 1 BvR 2056/21, 1 BvR 2055/21, 1 BvR 2054/21, 1 BvR 2575/21, 1 BvR 2574/21,1 BvR 1936/21, 1 BvR 1669/21, 1 BvR 1566/21, – paras (1 – 20), accessed here
[6] Ibid., para 1
[7] Ibid., para 1
[8] Ibid., para 8
[9] Ibid., para 1
[10] Ibid. (footnote 6), para 1 and (footnote 3)
[11] Ibid. (footnote 3)
[12] Ibid. (footnote 6), para 8
[13] Ibid., para 5
[14] Ibid., para 12
[15] Ibid., para 11
[16] Ibid., para 15
[17] Ibid., para 16
[18] Ibid., para 15
[19] Ibid., para 13
[20] Ibid., paras 16 and 17
[21] Ibid., para 13