On July 15, 2021, the plaintiffs Jannis Krüßmann, Lea Wynhoff, Tobias Linck, and Mia Hense, supported by environmental organization Deutsche Umwelthilfe (DUH; Environmental Action Germany), brought a constitutional claim against the state of Nordrhein-Westfalen (NRW) for the inadequacy of its adopted climate law. The plaintiffs relied on the German Constitution (Basic Law) to call on the state legislature to set a GHG emissions reduction pathway, to comply with the remaining CO2 budget and adopt sufficient instruments to achieve and verify the climate protection targets set by the Paris Agreement.
NRW is the German state with the biggest population and the highest greenhouse gas emissions. The 2013 NRW Climate Protection Act was revised on July 1, 2021, increasing the climate protection targets for 2030 (greenhouse gas emissions reduction by 65%), 2040 (greenhouse gas emissions reduction by 88%) and 2045 (achieve carbon neutrality). However, according to the plaintiffs, the interim targets set for the time periods until 2030 and between 2030 and 2040 are insufficient, as they allow emissions to continue to rise in individual emitting sectors. In addition, legal instruments with specific deadlines to track and meet greenhouse gas reduction targets were deleted from the law. In particular, the adopted state law no longer requires the state government to prepare and implement a legally binding climate protection plan to be updated every five years, nor to specify the measures necessary to meet its reduction goals. This obligation was replaced by the introduction of a so-called climate protection audit, which is supposed to ‘accompany’ the strategies and measures of the state government and to ‘serve as an aid’ without providing for any binding targets or intermediate goals.
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 the NRW law falls short of these constitutional requirements. Plaintiffs asserted a violation by the state of it 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 omitted action by the legislature of NRW.
On January 18, 2022, the First Senate of the Federal Constitutional Court did not damit 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.