German top court finds key climate legislation insufficient in landmark ruling

Here you can find a factsheet on Germany's Climate Action Law, parts of which violate the constitution because they are insufficient, according to the court.

The court's press release is available in English. Here are the key quotes:

 Constitutional complaints against the Federal Climate Change Act partially successful

In an order published today, the First Senate of the Federal Constitutional Court held that the provisions of the Federal Climate Change Act of 12 December 2019 (Bundes-Klimaschutzgesetz – KSG) governing national climate targets and the annual emission amounts allowed until 2030 are incompatible with fundamental rights insofar as they lack sufficient specifications for further emission reductions from 2031 onwards. In all other respects, the constitutional complaints were rejected.

The Federal Climate Change Act makes it obligatory to reduce greenhouse gas emissions by at least 55% by 2030 relative to 1990 levels and sets out the reduction pathways applicable during this period by means of sectoral annual emission amounts (§ 3(1) and § 4(1) third sentence KSG in conjunction with Annex 2). It cannot be ascertained that the legislator, in introducing these provisions, violated its constitutional duty to protect the complainants from the risks of climate change or failed to satisfy the obligation arising from Article 20a of the Basic Law (Grundgesetz – GG) to take climate action. However, the challenged provisions do violate the freedoms of the complainants, some of whom are still very young. The provisions irreversibly offload major emission reduction burdens onto periods after 2030. The fact that greenhouse gas emissions must be reduced follows from the Basic Law, among other things. The constitutional climate goal arising from Article 20a GG is more closely defined in accordance with the Paris target as being to limit the increase in the global average temperature to well below 2°C and preferably to 1.5°C above pre-industrial levels. For this target to be reached, the reductions still necessary after 2030 will have to be achieved with ever greater speed and urgency. These future obligations to reduce emissions have an impact on 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. Therefore, the legislator should have taken precautionary steps to mitigate these major burdens in order to safeguard the freedom guaranteed by fundamental rights. The statutory provisions on adjusting the reduction pathway for greenhouse gas emissions from 2031 onwards are not sufficient to ensure that the necessary transition to climate neutrality is achieved in time. The legislator must enact provisions by 31 December 2022 that specify in greater detail how the reduction targets for greenhouse gas emissions are to be adjusted for periods after 2030.

Facts of the case:

The Federal Climate Change Act responds to the need – as seen by the legislator – for greater climate action efforts and has the purpose of affording protection against the effects of global climate change (§ 1 first sentence KSG). Pursuant to § 1 third sentence KSG, the basis of the Act 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. Pursuant to § 3(1) KSG, greenhouse gas emissions must be gradually reduced by the target year 2030 by at least 55% relative to 1990 levels. § 4(1) third sentence KSG in conjunction with Annex 2 sets out the annual allowable emission amounts for various sectors in line with the reduction quota for the target year 2030. Provisions applicable beyond 2030 are not contained in the Act. Rather, § 4(6) KSG provides that in the year 2025 the Federal Government must set annually decreasing emission amounts for further periods after the year 2030 by means of ordinances.

With their constitutional complaints, the complainants primarily claim that the state, in enacting § 3(1) and § 4(1) third sentence KSG in conjunction with Annex 2, has failed to introduce a legal framework sufficient for swiftly reducing greenhouse gases, especially carbon dioxide (CO2) – a legal framework they claim is necessary to limit the increase in the Earth’s temperature to 1.5°C, or at least to well below 2°C. They deem this to be necessary because a temperature increase of more than 1.5°C would place millions of lives in danger and would risk the crossing of tipping points with unforeseeable consequences for the climate system. They claim that the reduction of CO2 emissions as laid down in the Federal Climate Change Act is not sufficient to stay within the remaining CO2 budget that would correspond to a temperature increase of 1.5°C. In their constitutional complaints, the complainants ­− some of whom live in Bangladesh and Nepal − rely primarily on constitutional duties of protection arising from Art. 2(2) first sentence GG and Art. 14(1) GG, as well as on a fundamental right to a future in accordance with human dignity and a fundamental right to an ecological minimum standard of living (ökologisches Existenzminimum), which they derive from Art. 2(1) GG in conjunction with Art. 20a GG and from Art. 2(1) GG in conjunction with Art. 1(1) first sentence GG. With regard to future burdens arising from the obligations to reduce emissions for periods after 2030 – which they describe as an “emergency stop” – the complainants rely on fundamental freedoms more generally.