On September 9, 2021, the youth plaintiffs Alena Hochstadt, Dennis Georg, and Lilly Claudi, supported by environmental organization Deutsche Umwelthilfe (DUH; Environmental Action Germany) brought a constitutional claim against the state of Hesse for its failure to adopt a climate protection law. In January 2021, a draft Climate Change Act was introduced to the Hessian state parliament. The bill is currently under review. Plaintiffs argued that the draft did not meet the constitutional obligations for climate protection. On the one hand, because it failed to specify a reliable reduction pathway for complying with the remaining CO2 budget on account of the lack of any annual target-setting. On the other, because it did not prescribe tools and mechanisms for achieving and reviewing the adequacy of the climate protection argues. Further, plaintiffs argued that the 2012 Hessian Energy Future Act was insufficient to fill these gaps, as it only sets a nonbinding target for the expansion of the renewable energy sector and thus also only for one of the sectors relevant for climate protection. Plaintiffs argued that this lack of more stringent targets at the state level violated their fundamental constitutional rights. Further, plaintiffs invoked the state’s duty to protect their fundamental rights, to request that the state legally stipulate a GHG emissions reduction pathway towards achieving climate neutrality by 2045, to comply with the Federal Climate Protection Act and the overarching 1.5°C temperature target, as informed by the Paris Agreement. This case is part of a series of eleven separate constitutional complaints supported by DUH against ten federal states, following the Constitutional Court’s Neubauer decision in 2021.
The plaintiffs relied on the Constitutional Court’s decision in Neubauer v. Germany, following which Germany adjusted its climate goals at the federal level. Plaintiffs argued that codification of a legally binding reduction path is also required at the state level, as states bear co-responsibility for protecting lives and civil liberties, including safeguarding the natural foundations of life for future generations, within their own sphere of competence. Plaintiffs argued that inaction by the state of Hesse breaches both plaintiffs’ fundamental rights, and the state’s constitutional obligations. Plaintiffs asserted a violation by the state of its duty to protect, and invoked their constitutional rights, to defend themselves against considerable future restrictions on their freedoms which – in view of rapidly progressing climate change – are to be considered inevitable and are already reflected in the lack of action by the legislature of Hesse.
On January 18, 2022, the First Senate of the Federal Constitutional Court did not admit the eleven complaints for adjudication, on the basis of a lack of adequate prospects. Widely in alignment with its decision in Neubauer v. Germany, the Court acknowledged that greenhouse gas reduction burdens cannot be unilaterally offloaded onto the future. However, in the cases at hand, complainants’ fundamental rights were not violated preemptively, because the state legislatures are not subject to a CO2 emissions budget, which, according to the Court in Neubauer v. Germany, is a prerequisite for such an effect. Rather, it is the federal German legislature that is bound by the CO2 budget, but has a prerogative with respect to its implementation. As regards the federal states, the Court clarified that they too are responsible for climate protection, in particular by virtue of Article 20a of the Basic Law.