Climate Disputes – German Court compels Federal Government to adopt Emergency Programs for Climate Protection

Introduction

On 30 November 2023, the Berlin-Brandenburg Higher Regional Administrative Court ("OVG Berlin-Brandenburg" or "Court") has compelled the Federal Government of Germany to adopt emergency programs for climate protection, in accordance with Section 8 of the German Federal Climate Protection Act ("Act"). The Court found a violation of the obligation to ensure compliance with annual emissions budgets in the transport and building sectors.

This has been one of several cases filed before German courts in respect of climate protection. This case represents a development in the growing body of climate disputes, which are also tracked in our firm's Insights.

The case is noticeable from an international perspective. It is an example of an administrative court assessing the sufficiency of government measures to address climate issues. Furthermore, the proceedings were initiated by two NGOs, which were granted the right to enforce State obligations on climate protection under the Act, despite the lack of an express provision offering standing on these grounds. This is consistent with a global trend that courts are prepared to hear environmental claims brought by civil society groups and individuals against governments.

From a German perspective, the case demonstrates the administrative law system on environmental protection in Germany at work, and in particular, the interaction between the Federal Environmental Agency (Germany's central environmental authority), the Federal Government and various Federal Ministries – in this case, the Federal Ministry for Economic Affairs and Climate Action and the Federal Ministry of Transport, Building and Urban Affairs.

Background

The Climate Protection Act is a federal statute enacted on 18 December 2019. It has the purpose of ensuring that national and EU climate change mitigation targets are met. The law is also intended to implement Germany's obligations under the Paris Agreement (see our Insights here) based on the United Nations Framework Convention on Climate Change ("UNFCCC"). The Act commits to reduce greenhouse gas emissions, compared to 1990 figures, by at least 65% by 2030 and by 88% by 2040. It sets out reduction pathways by way of sectoral annual emissions budgets in accordance with Sections 3(1), 4(1) third sentence and Annex 2 of the Act.

Part 2 of the Act provides the emission budgets to be met per sector and possible consequences for exceeding such budgets. In particular, Federal Ministries are obliged, according to economic sector, to ensure compliance with respective annual emissions budgets, pursuant to Section 4 of the Act. In the event an annual emissions budget is exceeded, an emergency program must be submitted by the Federal Ministry responsible for the respective sector. This emergency program then needs to be adopted by the Federal Government (Sections 8(1) and (2) of the Act). Other provisions relate to imposing fines (Section 6 of the Act) and implementing the European Effort Sharing Regulation (see our blog here) (Section 7 of the Act).

Key Findings and Rulings of the Court

The decision of the OVG Berlin-Brandenburg is interesting on several counts.

Firstly, the Court permitted three claims brought by two German environmental organizations –Environmental Action Germany ("DUH") and the German Federation for the Environment and Nature Conservation ("BUND") although the standing of the claimants was not explicitly admitted. The Federal Government argued that the claims of the two NGOs were inadmissible due the lack of a legal rule on standing in relation to claims of a violation of Section 8 of the Act. The Court rejected this argument, reportedly by considering such a standing based on the right to an effective remedy under Article 47 of the Charter of Fundamental Human Rights of the EU. The decision currently pends delivery of a written judgment, in which the Court's assessment of standing will be further explained.

Secondly, on substance, the Court condemned the Federal Government to adopt emergency programs in accordance with Section 8 of the Act. The provision obliges the Federal Government to adopt such programs in compliance with the annual emissions budgets from (inter alia) the building and transport sectors specified in the Act for the years 2024 to 2030.

The Court took into account the Federal Environment Agency's conclusion that the permitted annual emission budgets for the transport and building sectors were exceeded for the years 2021 and 2022. As a result, the two responsible Federal Ministries were required, by operation of Section 8 of the Act, to submit emergency programs to the Federal Government ensuring compliance with the annual emission budgets in these sectors for the following years. The Federal Government would have had to discuss the measures to be taken in the affected sector, with other sectors or on cross-sector measures, and to decide on this expediently. In July 2022, the Federal Ministries in the responsible sectors presented emergency programs for adoption. However, the Federal Government did not adopt these programs. Instead, on 4 October 2023, it adopted the so-called 2023 Climate Protection Program ("2023 CPP"), which fell short of the requirements of the emergency programs as prescribed under the Act.

The 2023 CPP used a cross-sector, multi-year overall calculation to determine whether climate protection goals would be achieved by 2030. In the view of the Court, this did not meet the legal requirements of an emergency program because it did not contain short-term effective measures ensuring compliance with the annual emission budgets specified in the Act, for the following years, in the respective sectors. Moreover, the 2023 CPP would have resulted in exceeding the emission budgets by significantly more than the equivalent of 200 million tonnes of CO² by 2030. The Court therefore held that the Federal Government must still decide on an emergency program to ensure compliance with annual emission budgets in the building and transport sectors from 2024 to 2030.

The decision remains subject to appeals to Germany's Federal Administrative Court.

Comment

This case is a recent example of climate litigation in action. Internationally, it forms part of a trend of increased resort to administrative law for addressing climate issues (for example, the position in the UK is discussed here). In this case, the OVG Berlin-Brandenburg confirmed that the Climate Protection Act provides binding obligations that can be enforced by environmental organisations. In the past, DUH and BUND have filed a number of cases before federal and State-level courts in Germany under various environmental protection statutes.

Standing continues to remain an issue for environmental organisations, as neither the Act nor any other provision of German law expressly provide standing to environmental organisations to a right to compel the adoption of an emergency program. It is notable that the Court recognised that the claimants had standing despite the absence of express legal provisions to that effect. Parallel to this decision, in September 2023, a first reading of a draft bill to amend the Act (20/8290) was held before the German Parliament, which will (inter alia) remove the requirement to meet sectoral emission budgets.

Germany's commitment under the Paris Agreement also remains at stake. Key to achieving this commitment is Germany's Climate Action Plan 2050. The decision of the OVG Berlin-Brandenburg coincides with the UN Climate Change Conference 2023 in the UAE – the 28^th Conference of the Parties of the UNFCCC ("COP28"). Our firm has further coverage of this here.