A clear Fail – Higher Administrative Court compels German Government to change National Air Pollution Control Program

Introduction

On 23 July 2024, the Higher Regional Administrative Court of Berlin-Brandenburg ("Court") has compelled the Government of Germany to change its National Air Pollution Control Program ("NAPCP") (OVG 11 A 16.20). The Court found that the German NAPCP is insufficient for the implementation of the EU's National Emissions Reduction Commitments Directive ("NEC-Directive").

The claim was brought by a German environmental NGO – Environmental Action Germany ("DUH"). In a previous case on the Government's application of the German Federal Climate Protection Act, the Court had already granted DUH the right to enforce State obligations on climate protection, despite the lack of an express provision offering standing on these grounds (see our coverage of this here).

The Court's recent decision is another noticeable example how the judiciary takes a more active role in assessing government measures and policies to address environmental issues and concerns. It adds to the growing body of climate-related disputes in jurisdictions across the world, which are also tracked in our firm's Climate Disputes Insights and in our Global ESG Tracker – a new tool to help businesses keep up with the rapidly emerging universe of emerging ESG regulations and reporting requirements.

Background

The NEC-Directive entered into force on 31 December 2016. It sets 2020 and 2030 emission reduction commitments for EU Member States for five important air pollutants: nitrogen oxides, non-methane volatile organic compounds, sulphur dioxide, ammonia, and fine particulate matter. These pollutants contribute to poor air quality and climate change with negative impacts on human health and the environment.

It transposes the reduction commitments agreed on by the EU and its Member States under the Gothenburg Protocol as amended in 2012, which was designed to reduce acidification, eutrophication, and ground-level ozone by setting national emissions ceilings. The Gothenburg Protocol was negotiated under the UN Convention on Long-Range Transboundary Air Pollution – an international agreement to protect human health and the natural environment from air pollution by control and reduction of air pollution, including long-range transboundary air pollution.

Under Article 6 of the NEC-Directive and its Annex III, EU Member States were required to report a first NAPCP by 1 April 2019. NAPCPs shall include measures and policies selected by States as relevant for fulfilling their commitments to reduce emissions set for 2020-2029 and from 2030 onwards. NAPCPs shall be updated at least every four years. The German Government updated its 2019 NAPCP on 15 May 2024.

Key Ruling and findings of the Court

The Court condemned the German Government to change its NAPCP. It held that the prognoses underlying the NAPCP are incorrect because the Government used outdated data and failed to take into account legal and other changes in the planning of its measures.

Flaws in the NAPCP noted by the Court include the following:

• Use of outdated emissions and climate projections: The Government did not consider the Federal Environment Agency's ("FEA") 2023 Climate-Protection-Projection Report, which projects the development of greenhouse gas emissions in Germany. It only considered the FEA's previous 2021 report.
• No consideration of reduced ambitions: The Court criticized that the Government failed to take account of amendments to relevant laws impacting pollution. This includes changes to the German Building Energy Act, permitting the use of wood pellet heating systems leading to increased air pollution with fine particulate matter. The Court also held that changes to federal subsidies for energy efficient buildings were not taken into account. Moreover, the NAPCP was still based on the assumption that all German coal-fired power plants will be taken off the grid by 31 December 2029, ignoring Germany's 2022 decision to phase out coal-fired energy generation only by 2038. In relation to clean mobility, the Court found that the updated NAPCP relied on automobile emission limits that had been softened in the meantime and still considered terminated State subsidies to promote the purchase of electric cars.  

The Court required the Federal Government to adjust its NAPCP accordingly. Furthermore, the Court clarified that the Government must ensure that its measures are 'suitable' to comply with the air-pollution-reduction obligations under the NEC-Directive. 

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

Comment

This case is another recent example of climate litigation in action, noting that this Court has in the past shown a particular willingness to engage with climate and environment-related topics and question the adequacy of Government measures.

When looking at the list of flaws enumerated by the Court, it is apparent that very little care went into the update of the NAPCP by the Government. This may have worked in the past when societal awareness for environmental topics was low and the judiciary was intent on not interfering with the Government's prerogative. However, times have changed, not only in Germany but also internationally: The case forms part of a trend of increased resort to administrative law for addressing climate and environmental issues and concerns (for example, the position in the UK is discussed here). Moreover, although the findings of the case appear very technical, it touches on a core obligation of the German Government, which is to protect its citizens from the significant health effects of pollution. The right to health has been acknowledged as a basic human right long since and appears in numerous international instruments.

From a European and German perspective, the case also shows that environmental NGOs continue to play a significant role in monitoring and enforcing State obligations to protect the environment before State-level courts. In the past, DUH has filed a number of cases before courts in Germany under various environmental protection statutes (for example, see our coverage here).