A German court has held that the German government’s climate policy is judicially reviewable and must not be so inadequate as to fail to protect fundamental rights such as the rights to life and property. However, the court dismissed an action by German families to challenge the government’s failure to adhere to a cabinet decision to reduce greenhouse gas emissions by 40% by 2020, concluding that the target was not legally enforceable.
In December 2014, the German cabinet set a goal of reducing national greenhouse gas emissions by 40% compared to 1990 levels by the end of 2020 (the Climate Protection Plan). According to the government’s 2018 official climate protection report, however, the government will likely only achieve a reduction of 32% from 1990 levels by the end of 2020. In October 2018, three German families and Greenpeace Germany filed suit in the Administrative Court of Berlin seeking to compel the German government to adhere to the 40% reduction goal. The German families are comprised of organic farmers who claim they are already experiencing the impacts of climate change. Plaintiffs argued that the government was bound by the Climate Protection Plan, and alleged that the government’s failure to adhere to the 40% target encroaches on their human rights in violation of the German Constitution -- the Grundgesetz -- under Article 2(2) (right to life and health), Article 12(1) (occupational freedom), and Article 14(1) (right to property). They further alleged that failure to meet the original 2020 goal violates Germany’s minimum obligations under the EU Effort Sharing Decision (406/2009/EC).
According to Greenpeace, plaintiffs asked for court orders holding that the government is obliged to: 1) implement the national Climate Protection Program 2020 by updating or supplementing appropriate measures to meet the 2020 target; 2) compensate for the excess of approximately 650 million tons of CO2 equivalent between 2007 and today due to insufficient implementation of the 2020 target; and 3) supplement the national Climate Protection Program 2020 to meet the reduction targets set out in European environmental law. Greenpeace reports that this is the first climate lawsuit to refer to the publication of the UN’s Intergovernmental Panel on Climate Change’s (IPCC) Special Report on 1.5°C.
On October 31, 2019 the Administrative Court of Berlin dismissed the case, concluding that the 2020 target, as a cabinet decision, was not legally binding. The court further held that plaintiffs had not conclusively demonstrated that the government had violated its constitutional obligations by setting inadequate climate protection targets. However, the court did hold that the government’s climate policy is subject to judicial review and must be consistent with the government’s duties to protect fundamental rights under the German Constitution. The court also determined that the government must undertake measures to provide adequate and effective protection of the fundamental rights potentially affected by climate change, including the rights to life and property. Nonetheless, the court concluded that the government is entitled to wide discretion in deciding how to fulfill these obligations, so long as precautionary measures to protect fundamental rights not are wholly unsuitable or wholly inadequate. In the court’s view, the government’s current protection policy, which will lower emissions by 32% rather than 40% by the end of 2020, is within its discretion.
Moreover, the court noted that the EU is only aiming for a 40% reduction in greenhouse emissions by 2030 and has pledged a reduction of only 20% below 1990 levels by 2020. In this context, the court concluded that the German government’s reduction target of 32% by the end of 2020 does not appear to be completely inadequate.