“Climate Change Litigation”

Following the “climate protection decision” of the German Federal Constitutional Court (Bundesverfassungsgericht), by which the Court declared the German Climate Protection Act partially unconstitutional, constitutional complaints have now also been filed against individual German federal states. In addition, Deutsche Umwelthilfe and Greenpeace are about to sue various German automobile manufacturers as well as an oil and natural gas producer on the basis of civil injunctive relief if they do not agree to undertake certain climate protection measures. Some lawsuits have already been filed.

Even though the prospects of success of civil climate lawsuits against companies currently cannot be finally assessed due to their novelty, the announcements of the environmental organisations are likely to further increase the pressure on companies to place a stronger focus on climate protection goals in their activities, also for reputational reasons. This effect already resulted from the climate protection decision of the German Federal Constitutional Court and seems to be consolidating.

Constitutional complaints against German federal states

The constitutional complaints, which are also being pursued with the support of Deutsche Umwelthilfe against various German federal states before the German Federal Constitutional Court and, in some cases, the respective constitutional courts of the German federal states, are intended to lead to more comprehensive statutory climate protection in the federal states. In addition, some administrative court actions have also been brought with similar objectives. Currently, complaints and lawsuits are pending against Bavaria, Brandenburg, Hesse, Mecklenburg-Western Pomerania, North Rhine-Westphalia, Saarland, Saxony and Saxony-Anhalt.

The complaints initially differentiate according to whether or not the respective legislator of the federal state has already enacted a climate protection act. In terms of arguments, however, they proceed in the same way regardless of the existence of such an act: The central point in all claims is the reference to the decision of the Federal Constitutional Court on climate protection and the advance effect of fundamental rights established in this decision, which, according to the complainants, has the consequence that the legislators in the federal states must tighten their climate acts or enact such laws for the first time. The complainants consider it necessary that the legislators of the federal states define statutory reduction paths that lead to climate neutrality and comply with the remaining residual budget of CO2 emissions.

Claim letters and first lawsuits from Deutsche Umwelthilfe and Greenpeace

By their civil claim letters dated beginning of September, Deutsche Umwelthilfe and Greenpeace demand, among other measures, from automobile manufacturers to reduce their CO2 emissions and the sale of vehicles with combustion engine by 2029 and to completely give up the combustion engine vehicle business in 2030. Deutsche Umwelthilfe requires from the oil and natural gas company that it continues production only within certain CO2 emission limits as well as in a greenhouse gas-neutral manner and that it does not open any new oil or natural gas fields after 2026.

These demands are intended to be enforced by means of a civil law claim for injunctive relief to protect the climate. Deutsche Umwelthilfe and Greenpeace already see fundamental rights being violated in the future by the business activities of the companies.  By selling combustion engine vehicles or producing oil and natural gas, they would contribute significantly to the consumption of the residual CO2 budget remaining for Germany to fulfil its commitment to climate neutrality, with the consequence that more  stringent climate protection measures that affect fundamental rights would have to be taken in the future.

Deutsche Umwelthilfe and Greenpeace are therefore demanding from the companies to ensure the freedoms of future generations by reducing CO2 more extensively than currently planned. By their claim letters, the organisations are now demanding from the companies to refrain from their supposedly climate-damaging behaviour, announcing that they will otherwise enforce their claims before the civil courts, since climate protection is now litigable as a result of the German Federal Constitutional Court’s decision on climate protection, and companies, too, are obliged to fulfil the constitutional task of protecting the climate through the indirect third-party effect of fundamental rights.

On September 21, 2021, Deutsche Umwelthilfe announced that they had filed their first lawsuits on this basis against two German automobile manufacturers before the Munich I Regional Court and the Stuttgart Regional Court.

Pressure on companies to act?

The legal enforceability of these injunctive claims is not yet foreseeable. However, it can be assumed that courts will increasingly deal with issues of this kind in the future. This is already the case for the much noted lawsuit of the Peruvian farmer Saúl Luciano also based on civil law liability, in which he claims for compensation from RWE for a flood risk increased by melting glaciers. The plaintiff considers the energy company as operator of coal and gas-fired power plants and thus emitter of CO2 to be a contributor to the flood risk increased by climate change. Hamm Higher Regional Court (OLG Hamm), which deals with the appeal, is currently taking evidence (Hamm Higher Regional Court, file no. I-5 U 15/17).

“Climate compliance” is thus an item on the agenda and will likely become a reputational issue for companies, irrespective of their legal responsibility. The current legislation already imposes environmentally-related behavioural requirements on companies, the fulfilment of which can certainly be a meaningful subject of a compliance audit. Legal bases for such obligations are for example the German Federal Immission Control Act (Bundesimmissionsschutzgesetz), the Closed Substance Cycle Waste Management Act (Kreislaufwirtschaftsgesetz) , the Act on the Trading of Greenhouse Gas Emission Allowances (Gesetz über den Handel mit Berechtigungen zur Emission von Treibhausgasen), but also the recently promulgated Act on Supply Chain Duties of Care (Gesetz über die unternehmerischen Sorgfaltspflichten in Lieferketten).

Outlook

Recent events once again underline that climate change litigation is no longer just a topic of the Anglo-American common law system. In the future, European and German courts will also be increasingly involved in litigation on climate change claims for injunctive relief, remedy and damages. Although the majority of the claims already filed are primarily directed against the German federal government and the German federal states, more lawsuits against private actors and companies can be expected in the future. In this context, companies should monitor their environmental obligations at least where existing laws impose litigable requirements. Environmental risk analyses can be helpful in this regard.