Neubauer et al v. Germany

Date of the Ruling: 
Mar 24 2021
German Federal Constitutional Court
Type of Forum: 

Luisa Neubauer along with other nine youth climate activists brought a case against the German federal government for its failure to enact adequate climate legislation in the country. The plaintiffs argued that the existing climate legislation– the 2019 German Federal Climate Change Act (Bundes-Klimaschutzgesetz– hereinafter KSG)– not only violated Germany’s responsibilities under the Paris Agreement, but also violated their fundamental rights enshrined in the German constitution (German Basic Law). 

The Plaintiffs mainly argued that some provisions of the 2019 climate change act were unconstitutional and incompatible with fundamental rights because they lacked a detailed plan for reducing GHG emissions, thus offloading the burden of combating climate change onto future generations. The Plaintiffs sought declaratory relief that the law’s inadequate emissions reduction targets were unconstitutional and that the legislature must both set new targets for reducing greenhouse gas (“GHG”) emissions. 

Specifically, the Plaintiffs alleged violations of the duties of protection arising from fundamental rights, such as the right to freedom; right to a future consistent with human dignity; and right to an ecological minimum standard of living. 

The Paris Agreement, to which Germany is a party, binds States to enact and enforce specific provisions for reducing GHG emissions. Under the Paris Agreement, States commit to  limiting the increase in the global average temperature to well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 degrees Celsius above pre-industrial levels. The Paris Agreement leaves the specifics of how each State Party will achieve the above-stated requirements to the States. 

The KSG folds into its preamble the Paris Agreement requirements, and sought to achieve these targets with a 55% reduction in GHG emissions by 2030, in comparison with 2019 levels. The 2019 legislation presented a watered-down version of previous iterations of climate change legislation. For instance, the prior version included the Climate Action Plan, which suggested cutting down emissions by between 80-95% by 2050. However, the 2019 KSG only presented the 55% reduction rate by 2030, and no specific pathways for how Germany would continue cutting down on emissions post-2030. Instead, the post 2030 emissions-reduction plan was left open and to be determined by executive orders later on. Post-2030, the final legislation only called for “achieving climate neutrality” by 2050. 

The Court considered whether the post-2030 burdens on freedom inherently built into the framework can be justified under constitutional law, or whether the KSG had inadmissibly offloaded reduction burdens onto future generations. 

First, the Court recognized climate protection is a human right with corresponding duties. The Court found the right to climate protection is enshrined within the fundamental rights to life, health, and physical integrity. According to the Court, these rights obligate “the state to afford protection against the risk of climate change” in the form of specific adaptation measures. It also includes protection against impairments caused by environmental pollution and  encompasses “protection against impairments and degradation of constitutionally guaranteed interests caused by environmental pollution, regardless of who or what circumstances are the cause.”

Second, the Court found that the constitution must be interpreted through a generational equity lens, meaning in a way that is fair to all generations. For instance, regarding the right to protection, the Court reasoned it “does not take effect only after violations have already occurred, but is also oriented towards the future. [It] [c]an also be read to establish a duty to protect future generations. This is all the more applicable where irreversible processes are at stake.” 

The Court elaborated on the right to fundamental freedoms within the context of climate change, writing, “further mitigation efforts might then be necessary, placing the complainants under enormous (additional) strain at extremely short notice and comprehensively jeopardizing their freedoms protected by fundamental rights.” Additionally, the Court found “freedom might be jeopardized if these provisions were to allow overly generous amounts of Co2 [carbon dioxide] to be emitted in the near term, thereby offloading the necessary reduction burdens onto the future at the expense of future freedom. Since they will have to make harder restrictions if it’s not balanced out now, then freedom will be infringed.”

Third, the Court focused on the extraterritorial obligations of Germany to combat climate change, and heeded a warning that Germany could not rely on the global nature of climate change to skirt its own responsibilities. As stated, “[t]he fact that the German state is incapable of halting climate change on its own and is reliant upon international involvement because of climate change’s global impact and the global nature of its causes does not, in principle, rule out the possibility of a duty of protection arising from fundamental rights.” Instead, the duty of protection “compels the state to engage in internationally oriented activities to tackle climate change at the global level and requires it to promote climate action within the international framework.”

Enforcement of the Decision and Outcomes: 

The court unanimously held that the KSG is partially unconstitutional, as it fails to protect future generations from future infringements of rights. The Court ordered the legislature to amend the KSG by the end of 2022. Specifically, it ordered the German government to correct and tighten up the climate act provisions to strengthen future mitigation pathways with specific provisions for reducing greenhouse gas emissions by 2% or 1.5%. 

The German government complied with the court’s judgment, enhancing the climate protection policy and raising its GHG emissions reduction targets. Amendments to the KSG now include a 64% reduction of GHG emissions by 2030; an 88% reduction by 2040; and achieving climate neutrality by 2045.

Significance of the Case: 

This case enshrines Paris Agreement goals within the protection of the German constitution and officially recognizes climate protection as a human right. The Court also interprets the right of fundamental freedoms to include protection from climate change in the future. 

The case sets an example for other European States regarding sufficient measures for combating climate change. For instance, the European Union has committed itself to reducing GHG emissions by at least 40% by 2030 compared to 1990 levels. Considering that the German court found a 15% decrease from that 40% target by that timeframe still was insufficient to combat climate change in Germany means that all states must take more radical measures to combat climate change. The Neubauer victory is just one step in that direction. 

At the same time, there have been setbacks since the positive judgment of Neubauer. In February 2022, young adults supported by Environmental Action Germany (DUH) submitted eleven complaints against 10 German states with the aim of forcing the states to comply with the requirements of the Paris Agreement. However, the German Federal Constitutional Court held that German states (as opposed to the federal government) have no obligation to comply with emission-reduction targets, because only the federal government is competent and responsible for regulating the consumption of emission budgets.