Climate Case Urgenda Reloaded? - Not In Germany (VG Berlin No 37/2019) Case Comment

Yesterday the administrative court of Berlin rejected a climate case brought by three German organic farmers and their families together with Greenpeace. According to the claimants the court should rule that the German government is not doing enough to meet its own climate targets. Germany is highly likely to miss its aim of reducing Co2 emissions by 40 % in 2020, compared to 1990 levels. That aim was spelled out in a cabinet decision of the German government (inter alia, page 4 of its 2010 energy concept), but never made it into actual law. The claimants argued that, precisely because of the fact that a climate law was lacking in Germany by that time, this political decision of the government acquired legally binding status, as opposed to a pure political ´good will´ obligation. The case, in trying to compel a government to make good on its own climate action promises, somewhat resembles the infamous Urgenda case (discussed earlier on this blog), but there are significant differences (civil court procedure versus administrative court procedure). The outcome, in any case, is different, as the Berlin administrative court rejected the case due to a lack of locus standi.

The argument that a non-binding, political intention of the government could have been transformed into a binding one (that would be suitable for court review) was further bolstered by EU law.  Reference was made to  Decision No 406/2009/EC of the European Parliament and of the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission reduction commitments up to 2020. Article 3 of this decision says that Member States shall, by 2020, limit their greenhouse gas emissions at least by the percentage set in Annex II to this Decision. This pertains to those emissions stemming from sectors that are not currently covered by the European Emissions Trading Scheme. Annex II provides that Germany´s reduction needs to be 14 % compared to 2005 levels. The claimants argued that Germany will not meet this target, despite the decision being legally binding.

Moreover, the farmers argued that they, as opposed to the general population, were already now hit hard and directly by the repercussions of climate change, as they saw their harvests in 2018 diminished by around 40 % due to tempests. According to their lawyer, these extreme crop failures are expected to continue in the next years, due to climate change. She argued that the farmers were, thus, endangered in their right to property and their right to pursue a business enterprise, as guaranteed under article 14 German constitution. The German government is obliged to protect these fundamental rights of German citizens.

The administrative court in Berlin accepted neither of these two arguments. With a view to the EU law dimension (Decision No 406/2009/EC) it argued that, while the document is certainly legally binding upon Member States, there is not necessarily the obligation to achieve the required Co2 reductions solely via measures taken in one´s own country. In case of failure to meet the 14 % reduction target it is possible for the German government to buy emission allowance certificates from other countries to make good on the target. The result is a broad leeway of discretion for the government to decide how precisely they wish to achieve the required target.

Furthermore, the court ruled that the decision of the government is not legally binding. This may not only be deduced from its legal nature as such, but also from the fact that, in the meantime, the aim changed. Germany is currently in the process of resolving a climate bill and in a German government decision of 9 October 2019 on a first draft of the bill, the government decided to postpone the achievement of the 40 % reduction target until 2023.

With a view to the German constitutional law argument of infringement of article 14 German constitution, the court made clear that this right had not been infringed. How fundamental rights are being protected by the government is, in principle, subject to discretion of the government. The courts are only allowed to step in if the measures taken by the government are ´entirely unsuitable´ to achieve the required protection (so called `Untermaßverbot´ in German constitutional law dogmatics). Given that all scientific projections agree that the government will achieve 32 % Co2 reduction by 2020 instead of 40 % Co2 reduction (compared to 1990 levels), it cannot be said that the measures taken by the government are ´entirely unsuitable´- after all they managed to achieve a 32 % reduction. The 40 % reduction is not the bare minimum of what is required, according to the court.

The case is one of a number of climate cases in Germany. In November 2018 the environmental NGO BUND, together with eleven citizens, launched a  constitutional complaint in front of the German Constitutional Court. The basis in this case, which is still pending, is, inter alia, article 14 German constitution. While, however, the case rejected yesterday in Berlin tried to strike at the lowest possible level, the administrative court in Berlin, this BUND case is taking the opposite approach, going directly to the highest German court.

Coming back to yesterday`s decision: it might not be the end of this particular lawsuit. Due to the general relevance of the case, the administrative court of Berlin allowed the claimants to launch an appeal against the decision in front of the Higher Administrative Court of Berlin. If successful, the case could ultimately go up to Germany`s Supreme Administrative Court in Leipzig. Whether or not the claimants will go down that path has yet to be decided.

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