Category: 2022

Categories
2022 Children and young people Domestic court Emissions reductions/mitigation European Convention on Human Rights Non-discrimination Private and family life Right to life Right to property Sweden Uncategorized

Anton Foley and others v. Sweden (Aurora Case)

Summary:
On 25 November 2022, a group of over 600 young people born between 1996 and 2015 filed a class action lawsuit against the Swedish State in the Nacka District Court (Nacka tingsrätt). According to the Plaintiffs, the Swedish State is failing to do its fair share to reduce the greenhouse gas (GHG) concentration in the atmosphere to keep warming below 1.5°C as compared to pre-industrial levels, by not undertaking immediate and adequate procedural and substantive measures to continuously reduce GHG emissions and enhance GHG sinks, thus failing to adequately protect the plaintiffs from adverse impacts of anthropogenic climate change. Therefore, the Plaintiffs claim that this constitutes a violation of their rights to life, private and family life, and non-discrimination under Articles 2, 8, and 14 of the ECHR, and their right to property under Article 1, Protocol 1 of the ECHR.

The Plaintiffs request the Nacka District Court to order the Swedish State to do its fair share in reducing GHG emissions to keep global warming below 1.5°C. The Swedish State should be required to take sufficient and adequate measures to ensure that emissions are continuously reduced and that GHG are absorbed through natural carbon sinks to limit the risk of adverse impacts of climate change on them.

On 31 March 2023, the Nacka District Court invited the Swedish State to file its response to the Plaintiffs’ application. On 21 June 2023, the Swedish State filed its response with the Nacka District Court, requesting that the case be dismissed. The Court then invited the Plaintiffs to submit their comments on the request for dismissal no later than 28 August 2023.

Date filed:
25 November 2022

Status of case:
Pending

More information:
The Plaintiffs’ summons application is available via the Climate Case Chart.

Suggested citations:
Nacka District Court, Anton Foley and others v. Sweden, case T 8304-22.

Last updated:
16 August 2023

Categories
2022 Chile Domestic court Emissions reductions/mitigation Gender / women-led Non-discrimination Right to a healthy environment Right to health Right to life Separation of powers

Women from Huasco & Others v. Government of Chile & Ministries of Energy, Environment and Health

Summary:

On 25 November 2021, a group of women from the city of Huasco, alongside Doris Zamorano, a member of a civil society organization in Huasco, brought a constitutional action against Chile’s omission in coordinating the early closure of two coal-fired power plants. The Chilean government had signed closure agreements with owners of various thermoelectric power plants, but the two plants in question were absent from these agreements. They would be subject to the general clause requiring closure of all coal-fired power plants by the year 2040. The petitioners argued the emissions from the powerplants and the uncertainty as to their closure in advance of the year 2040 contributes to interferences with their exercise and enjoyment of fundamental rights. In particular, they point to the governmental authorities’ awareness about the persistent local air pollution and treatment of Huasco as a ‘sacrifice zone,’ as well as Chile’s climate mitigation commitments.  

On 2 May 2022, the Court of Appeals of Copiapo dismissed the petition on the ground that adjudication of the issues raised by the petitioners was beyond its competence. The petitioners have filed an appeal against this decision before the Supreme Court of Chile.

Claims:

The applicants argue that the State’s omissions consist in its failure to close two coal-fired power plants, failure to justify the exclusion of the two power plants from the list of plants due to be closed earlier than 2040 pursuant to its climate policy, and toleration of emissions from the two power plants despite no compensation being granted for the negative environmental impacts from their operation. The petition alleges that these omissions violate their constitutional rights to equality, to life, physical and psychological liberty, to an environment free from contamination, and to the protection of their health, as well as a breach of the State’s administrative duty not to act arbitrarily. In support of the latter contention, the petitioners relied on the administrative law principles of service of the human person, coordination between State organs and the environmental principles of prevention and precaution. Further, they argued that the normative content of the State’s duty were to be informed by Sustainable Development Goals, International Labour Organisation Guidelines on Just Transition, UN Framework Convention on Climate Change, Paris Agreement and Chile’s 2020 NDC Communication under the Paris Agreement. By way of evidence, the petitioners relied on reports of high levels of air pollution in the city of Huasco, and a comparative analysis of morbidity rates and incidences of respiratory illnesses in Huasco and Caldera, a similar city that was not in the vicinity of coal-fired power plants.

The petitioners requested the Court of Appeals of Copiapo to order the concerned state organs to (i) establish and implement a plan to effect the early closure of the two power plants, and (ii) establish a compensation plan for historical and current emissions of the power plants to redress the environmental and health-related impacts.

In his reply, the Minister of Energy challenged the appropriateness of a judicial review of complex public policies which were the result of a democratic and representative participative process. The Minister also elaborated on the procedural history and content of the government’s policy on decarbonisation, and the limits of the legal competences of the various Ministries vis-à-vis regulation of private actors in the energy sector, to rebut the petitioners’ arguments about the State’s breach of administrative duties. The reply submitted by the Minister of Environment argued that there is no omission attributable to the Ministry of the Environment since regulation of power plants falls within the authority of the Ministry of Energy, and that environmental management instruments were enacted to improve the air quality in Huasco. The Minister of Health submitted a similar reply. The Undersecretary General of the Presidency argued that State authorities lack the power to order the early closure of the said power plants, and that all of the authorities named in the petition had taken relevant measures in relation to the factual situation described by the petitioners.

Decision:

On 2 May 2022, the Court of Appeals of Copiapo rendered its decision wherein it rejected the petition. The Court noted that petitioners’ action for constitutional review of the State’s omission suggests that they disagree with its actions which form part of the public policy on decarbonisation of the country. However, this policy was developed and implemented with the participation of various state organs (with the Ministry of Energy being at the head of them) and it is not for the Court to substitute itself for them and order a replacement or modification of such policy. The Court also noted the involvement of non-State stakeholders, including both actors from the industry and civil society, in the establishment of the decarbonisation policy.

Additionally, with respect to closure of power plants, the Court noted that State organs do not have the authority to demand closures and that such an outcome can only be achieved through agreements between the State and the concerned owners of the power plants. The Court concluded that the fact that the agreement concluded between the State and the owner of the two power plants in question does not envisage a concrete plan for their closure, as it does for some other power plants, does not evince arbitrariness.

Links:

The case documents are accessible via Climate Case Chart (click here).

Status of the case:

The case is pending in appeal before the Supreme Court of Chile.

Last updated:

08 August 2023.

Categories
2022 Biodiversity Children and young people Domestic court Emissions reductions/mitigation Fossil fuel extraction Gender / women-led Human dignity Non-discrimination Paris Agreement Right to a healthy environment Right to health Right to life Right to water Sea-level rise South Africa Standing/admissibility

African Climate Alliance et. al. v. Minister of Mineral Resources & Energy et. al. (#CancelCoal case)

Summary:
On 10 November 2021, three South African NGOs (the African Climate Alliance, Vukani Environmental Justice Movement in Action and groundWork) initiated a constitutional challenge against the South African government’s plans to augment its coal-fired electricity capacity. Also known as the #CancelCoal case, this challenge invokes the protection of environmental rights, the rights of children, the right to life and human dignity, the right to water, healthcare and food, and the right to equality and protection from discrimination. Noting that South Africa is one of the top 15 current global greenhouse gas emitters, the plaintiffs argue that the procurement of 1500 MW of new coal-fired power stations threatens the rights of present and future generations in South Africa, who will be “left to deal with the consequences of extreme weather events, heatwaves, droughts, coastal flooding, famine, cyclones and social upheavals”. They submit that the constitutional rights violations caused by the new coal plants “will disproportionately impact the poor and the vulnerable, including women, children and young people”.

More details on the challenge:
In terms of standing, the applicant organizations brought their case in their own direct interest, in the interests of their members, in the public interest, and in the interest of the environment, noting the “far reaching consequences for present and future generations”.

The applicants invoke section 24 of the South African Constitution, which recognizes the right to a healthy environment. They argue that, by ratifying international agreements on climate change, including the Paris Agreement, the State recognizes the threat for this right posed by climate change. They also invoke section 28(2) of the Constitution, which guarantees the protection of the best interests of the child, arguing that “children are most vulnerable to the impacts of climate change and the further health risks caused by coal-fired power stations”. Noting that South Africa’s first NDC, submitted in 2015 and revised in 2021, committed to peaking emissions from 2020-2025, with net zero to be achieved by 2050, they submit scientific evidence from the IPCC to show the level of threat at hand and the different emissions reductions pathways discussed. Coal, they argue, “is the single most significant contributor to climate change”, and South Africa’s plants to procure more coal-fired power plants is “directly at odds” with global calls for action against coal, despite its vulnerability to the impacts of climate change, including from heat, storms, drought, rising sealevels, loss of species and biodiversity, and the psychological harms linked to climate change, as well as economic costs associated with responding to the effects of climate change, which will “divert scarce resources allocated to alleviating powerty and promoting sustainable development”.

The applicants also argue that the government’s references to “clean coal” are scientifically unfounded, and that it is unrealistic to argue that carbon capture technologies will mitigate the impacts of the new coal plants. “Climate change is the ultimate collective action problem”, they submit, and collective efforts are needed. South Africa’s support for coal undermines the global efforts in this regard, is inconsistent with South Africa’s “fair share” obligations, and is detrimental to the environment in a number of ways.

Invoking the constitutional right to equality together with environmental rights, the applicants argue that the action in question produces unfair discrimination “on intersecting grounds of race, gender, and social origin. This is because poor, black South Africans, and particularly women and children, are the primary victims of ecological degradation and air pollution caused by coal-fired power. They will also be the worst affected by the climate crisis”, as recognized in the government’s Environmental Impact Assessment (para. 358 of the application).

In terms of remedies, the applicants seek the review and setting aside of the decisions to procure new coal plants.

Further developments:
On 8 December 2021, the President of South Africa issued notice that he does not intend to oppose the application and shall abide by the decision of the court. On the same date, the Minister of Mineral Resources and Energy issued notice of his intention to oppose the application.

On 12 December 2022, in what was described as an “early victory” in the case, the Pretoria High Court ordered the Minister of Mineral Resources and Energy to release records relating to the decision to seek new coal power, and to pay the costs of the application.

Further reading:

The full application form in this case is available from climatecasechart.com, as are further documents on the case.

Suggested citation:
High Court of South Africa, Gauteng Division (Pretoria), African Climate Alliance and others v. Minister of Mineral Resources and Energy and others, case no. 56907/2021, filed on 10 November 2021.

Last updated:
26 June 2023.

Categories
2022 Brazil Domestic court Emissions reductions/mitigation Paris Agreement Right to a healthy environment

PSB et al. v. Brazil (Climate Fund)

Summary:

On 5 June 2020, four Brazilian political parties (Partido Socialista Brasileiro (PSB), Partido Socialismo e Liberdade, Partido dos Trabalhadores and Rede Sustentabilidade) filed a direct action of unconstitutionality for omission before the Brazilian Federal Supreme Court (“Court”) related to the National Fund on Climate Change (“Climate Fund”) (case ADPF 708).

The Climate Fund was established in 2009 to direct its annually authorized budget to Brazilian projects that address the reduction of greenhouse gas emissions and adaptation to climate change and its effects.

The plaintiffs claimed that the Brazilian Federal Administration kept the Climate Fund inoperative during 2019 and 2020. According to the plaintiffs, the Brazilian government’s inaction regarding the Climate Fund is a violation of its constitutional and international legal environmental obligations.

Based on the constitutional right to a healthy environment, the plaintiffs requested the Court to declare the unconstitutionality of the Brazilian government’s omissions and to issue an injunction compelling the government to actualize the Climate Fund by resuming operations and reactivating its institutional governance of the Fund.

By its decision dated 4 July 2022, the majority of the Court (10 out of 11 judges) granted the plaintiffs’ application. The Court recognized the government’s failure to fully allocate the Climate Fund’s resources for 2019. It ordered the Federal Administration not to neglect the Climate Fund again and determined that the resources from the Climate Fund cannot be withheld.

The Court based its decision on the constitutional duty to protect the environment (Art. 225 of the Federal Constitution), the rights and international obligations assumed by Brazil, and the constitutional principle of separation of powers. Judge Luís Roberto Barroso noted that treaties on environmental law constitute “a species of the genus human rights treaties” and, for this reason, enjoy supranational status.

The Court’s decision attracted attention as it was the first time that the country’s highest court addressed the issue of climate change.

Date of decision:

4 July 2022

Case documents:

More information:

  • For further procedural information, visit Supremo Tribunal Federal.
  • For Prof. Ingo Wolfgang Sarlet’s and Tiago Fensterseifer’s comment on the decision, click here.
  • For Dr. Maria Antonia Tigre’s interpretation of the decision, click here.
  • For more case documents, such as an English translation of the decision, visit Climate Case Chart.

Suggested citation:

Brazilian Federal Supreme Court, PSB et al. v. Brazil, case ADPF 708, decision of 4 July 2022.

Last updated:

17 April 2023.

Categories
2022 Children and young people Deciding Body Emissions reductions/mitigation European Convention on Human Rights European Court of Human Rights Germany Keywords Paris Agreement Private and family life Right to life Rights at stake State concerned Uncategorized Year

Engels, Steinmetz and Others v. Germany (1 BvR 188/22)

Summary:

Following the Neubauer v. Germany case, nine teenagers and young adults brought an application to the European Court of Human Rights complaining that the new objectives of the German Climate Protection Act, as amended after the judgement of the the German Federal Constitutional Court and entered into force on 31 August 2021, are insufficient to reduce greenhouse gas emissions to the level necessary for meeting the Paris Agreement temperature goals (well below 2 degrees Celsius above pre-industrial levels) and that this would violate Articles 2 (right to life) and 8 (right to respect for private and family life) of the European Convention of Human Rights.

Domestic proceedings:

On 24 June 2022 it was announced that the German Federal Constitutional Court (Bundesverfassungsgericht or BVerfG) had refused to hear a case following up on its groundbreaking Neubauer judgment of 24 March 2021. This follow-up litigation was brought by nine young people, who sought a further strengthening of German climate protection policy with the support of the NGO Deutsche Umwelthilfe. The applicants, who were aged 13 to 26 at the time of filing, were previously involved in the Neubauer case, where the BVerfG found that German climate policy posed a threat to the fundamental freedoms of future generations. In this follow-up case, they sought a judgment from the BVerfG demanding faster and more effective climate protection measures.

After the Neubauer judgment, the German government changed the German Federal Climate Change Act of 12 December 2019 (Bundes-Klimaschutzgesetz – KSG) governing national climate targets and the emissions allowed annually to provide for higher levels of mitigation action.In this case, the applicants argue that the new version of the KSG still does not guarantee that Germany will meet its Nationally Determined Contributions (NDCs) under the Paris Agreement, and that it therefore does not ensure the limitation of anthropogenic climate change to the Paris Agreement’s target of 1.5 degrees. The applicants argue that the revised KSG reduces emissions by only about 6.5 percent by 2030, and draw on IPCC reports showing that the 1.5-degree target could be exceeded in around ten years’ time.The legal argumentation brought forward here was similar to that in Neubauer. The applicants argued that their fundamental freedoms are under threat, and invoked Article 20a of the German Basic Law (Grundgesetz).

Decision:
In an unreasoned decision, the BVerfG refused to accept this case for decision on 25 May 2022.

Application to the ECtHR:
Counsel in the case, together with the NGO Deutsche Umwelthilfe, announced that they would take this case the European Court of Human Rights (ECtHR) in Strasbourg. A corresponding application was lodged before the Court in September 2022 and received application number 46906/22. The Court then adjourned the case pending the outcome of the three climate cases pending before its Grand Chamber (Verein Klimaseniorinnen Schweiz and Others v. Switzerland (no. 53600/20), Carême v. France (no. 7189/21) and Duarte Agostinho and Others v. Portugal and 32 Others (no. 39371/20)).

More information:
The decision by the German Bundesverfassungsgericht has not yet been published. For reporting on the case, see LTO.

Part of the application made to the ECtHR has been made public by the NGO Deutsche Umwelthilfe, which is supporting the applicants, here (in German). This document contains the supplementary argumentation appended to the standardized application form.

Suggested citation:
German Bundesverfassungsgericht, Judgment of the First Senate of 25 May 2022 – 1 BvR 188/22.

European Court of Human Rights, Engels v. Germany (no. 46906/22), filed in September 2022 (not yet communicated).

Last updated:

1 August 2023

Categories
2022 Austria Belgium Cyprus Denmark European Court of Human Rights France Germany Greece Luxembourg Private and family life Right to life Sweden Switzerland The Netherlands The United Kingdom

Soubeste and 4 other applications v. Austria and 11 other States

Summary:
On 21 June 2022, it was reported that an application had been filed at the European Court of Human Rights concerning membership in the Energy Charter Treaty of 1994 (ECT), which entered into force in 1998. The case was brought by five young people, aged between 17 and 31, who allege that the 12 respondent States’ membership of the ECT stymies climate action, thereby violating their rights under Articles 2 (right to life) and 8 (right to respect for private and family life) ECHR.

It was further reported that the 12 respondent States in this case are Austria, Belgium, Cyprus, Denmark, France, Germany, Greece, Luxembourg, Netherlands, Sweden, Switzerland and Britain. In these States, corporate actors in the fossil fuel sector can bring legal action against the respective governments for losses of profits due to energy-related measures, thereby raising the costs of the green energy transition or making it illusory. The applicants argue that their Convention rights have been violated as a result.

In this regard, the IPCC pointed out in Chapter 14 of Working Group III report in the Sixth Assessment Cycle in 2022 (available here) that “bilateral and multilateral agreements, including the 1994 Energy Charter Treaty, include provisions for using a system of investor-state dispute settlement (ISDS) designed to protect the interests of investors in energy projects from national policies that could lead their assets to be stranded. Numerous scholars have pointed to ISDS being able to be used by fossil-fuel companies to block national legislation aimed at phasing out the use of their assets”. It also noted that “international investment agreements may lead to ‘regulatory chill’, which may lead to countries refraining from or delaying the adoption of mitigation policies, such as phasing out fossil fuels”.

Status of case:

Adjourned until the Grand Chamber has ruled in the climate change cases pending before it (see the ECtHR’s press release here).

Suggested case citation:

European Court of Human Rights, Soubeste and 4 other applications v. Austria and 11 other States (nos. 31925/22, 31932/22, 31938/22, 31943/22, and 31947/22), application filed on 21 June 2022 (not yet communicated).

Last updated:

15 March 2023

Categories
2022 Emissions reductions/mitigation European Court of Human Rights France Private and family life Right to life

Carême v. France

Summary:
On 7 June 2022, the European Court of Human Rights announced the relinquishment of an application against France concerning the municipality of Grande-Synthe to the Court’s Grand Chamber. The applicant in this case, in his capacity as mayor of the municipality of Grande-Synthe, was originally involved in the Grande-Synthe case, but the Conseil d’État held on 19 November 2020 that, unlike the municipality itself, Mr Carême could not prove that he had an interest in bringing proceedings.

This is the second climate case to reach the Court’s Grand Chamber, after the Klimaseniorinnen application. The case was lodged on 28 January 2021, and the Grand Chamber held a public hearing in this case on 29 March 2023, making it the second climate case to be heard by the Court (after KlimaSeniorinnen).

Before the Court, the applicant is arguing that France’s insufficient climate change mitigation measures have violated his rights to life (Article 2 ECHR) and to respect for private and family life (Article 8 ECHR). The Court summarized the applicant’s complaint as follows:

The applicant submits that the failure of the authorities to take all appropriate measures to enable France to comply with the maximum levels of greenhouse gas emissions that it has set itself constitutes a violation of the obligation to guarantee the right to life, enshrined in Article 2 of the Convention, and to guarantee the “right to a normal private and family life”, under Article 8 of the Convention. In particular, the applicant argues that Article 2 imposes an obligation on States to take the necessary measures to protect the lives of persons under their jurisdiction, including in relation to environmental hazards that might cause harm to life. Under Article 8 he argues that by dismissing his action on the grounds that he had no interest in bringing proceedings, the Conseil d’État disregarded his “right to a normal private and family life”. He submits that he is directly affected by the Government’s failure to take sufficient steps in the combat against climate change, since this failure increases the risk that his home might be affected in the years to come, and in any event by 2030, and that it is already affecting the conditions in which he occupies his property, in particular by not allowing him to plan his life peacefully there. He adds that the extent of the risks to his home will depend in particular on the results obtained by the French Government in the prevention of climate change.

The Court’s press release on this case can be found here. Further information on the Court’s approach to these cases can be found here.

Further reading:
For a comment on this case, see Marta Torre-Schaub’s post on Verfassungsblog.

Webcast of the hearing:
To watch a webcast recording of the public hearing in this case, which was held before the Grand Chamber of the European Court of Human Rights on 29 March 2023, click here (available in French and English).

Suggested citation:
ECtHR, Carême v. France, no. 7189/21, filed on 28 January 2021, relinquished to the Grand Chamber on 31 May 2022.

Last updated:
29 March 2023

Categories
2022 Children and young people Deciding Body Domestic court Emissions reductions/mitigation Germany Keywords Paris Agreement Right to life Rights at stake State concerned Year

Matteo Feind et al. v. Niedersachsen

Summary:
This case is one of ten separate constitutional complaints and one subsidiary popular complaint supported by the NGO Deutsche Umwelthilfe against ten German States (“Bundesländer”). It was brought by five young people against the German State of Niedersachsen in the wake of the Neubauer v. Germany judgment of the German Bundesverfassungsgericht. They contest the State’s failure to chart a course towards greenhouse gas emissions reductions by adopting legislation on climate protection. Like in the eleven related cases, the plaintiffs here argue that the Bundesländer share responsibility for protecting their lives and civil liberties, along with those of future generations, within their respective spheres of competence. According to the plaintiffs, the lack of legislation on climate action on the state level violates the German Constitution and the reductions regime under the Paris Agreement. They also submit that they have a fundamental right to defend themselves against future rights impacts caused by the lack of climate measures.

According to the plaintiffs, Niedersachsen’s Climate Protection Act goals for the years 2030 (reduction by 55%) and 2050 (climate neutrality), are insufficient. The plaintiffs argue that Niedersachsen’s climate neutrality goal for 2050 violated federal law, where climate neutrality was stipulated for 2045.

On 18 January 2022, the First Senate of the Federal Constitutional Court dismissed all eleven complaints for lack of adequate prospects of success. In alignment with its argumentation in Neubauer v. Germany, the First Senate recognized that the burden of CO2 emissions reductions must not be unilaterally offloaded onto future generations. However, the First Senate stated the individual legislators of the Bundesländer have not been been given an overall reduction target to comply with, even at the expense of freedom protected by fundamental rights. Thus, according to the First Senate’s decision, a violation of the obligations to protect the complainants from the dangers of climate change cannot be established. As regards to the Bundesländer, the First Senate clarified that they still have a responsibility to protect the climate, particularly by virtue of Article 20a of the German Constitution.

Rights invoked:
The applicants invoked violations of freedoms guaranteed under the domestic Constitution, especially those in Art. 2(2) of the German Constitution (right to life and physical integrity and freedom of the person), in combination with Article 20a of the Constitution (protection of the natural foundations of life and of animals). They invoked these rights in their ‘intertemporal dimension’, i.e. taking on the framing of the Neubauer case, which considered that failure to act now on climate change means excessively impacting future freedoms.

Date of decision:

18 January 2022

Suggested citation:
German Bundesverfassungsgericht, Matteo Feind et al. v. Niedersachsen, Decision of the First Senate of 18 January 2022 – 1 BvR 1565/21 et al.

Related proceedings:
For the other related cases see:

Luca Salis et al. v. Sachsen-Anhalt

Lemme et al. v. Bayern

Emma Johanna Kiehm et al. v. Brandenburg

Alena Hochstadt et al. v. Hessen

Otis Hoffman et al. v. Mecklenburg-Vorpommern

Leonie Frank et al. v. Saarland

Tristan Runge et al. v. Sachsen

Jannis Krüssmann et al. Nordrhein-Westfalen (NWR)

Cosima Rade et al. v. Baden-Württemberg

Links:

For the decision in German, see here.

Categories
2022 Children and young people Deciding Body Domestic court Emissions reductions/mitigation Germany Keywords Paris Agreement Right to life Rights at stake State concerned Year

Cosima Rade et al. v. Baden-Württemberg

Summary:
This case is one of ten separate constitutional complaints and one subsidiary popular complaint supported by the NGO Deutsche Umwelthilfe against ten German States (“Bundesländer”). It was brought by five young people against the German State of Baden-Württemberg in the wake of the Neubauer v. Germany judgment of the German Bundesverfassungsgericht. They contest the State’s failure to chart a course towards greenhouse gas emissions reductions by adopting legislation on climate protection. Like in the eleven related cases, the plaintiffs here argue that the Bundesländer share responsibility for protecting their lives and civil liberties, along with those of future generations, within their respective spheres of competence. According to the plaintiffs, the lack of legislation on climate action on the state level violates the German Constitution and the reductions regime under the Paris Agreement. They also submit that they have a fundamental right to defend themselves against future rights impacts caused by the lack of climate measures.

Baden-Wüttemberg’s Climate Protection Act of 2013 was revised on October 11, 2021, replacing the GHG reduction of 90% by 2050 with climate neutrality by 2040 and an emissions reduction of 65% by 2030. According to the plaintiffs, this Climate Protection Act left much of the implementation to the executive branch, which could be guided by political interests. Furthermore, the plaintiffs criticized the lack of measurable targets.

On 18 January 2022, the First Senate of the Federal Constitutional Court dismissed all eleven complaints for lack of adequate prospects of success. In alignment with its argumentation in Neubauer v. Germany, the First Senate recognized that the burden of CO2 emissions reductions must not be unilaterally offloaded onto future generations. However, the First Senate stated the individual legislators of the Bundesländer have not been been given an overall reduction target to comply with, even at the expense of freedom protected by fundamental rights. Thus, according to the First Senate’s decision, a violation of the obligations to protect the complainants from the dangers of climate change cannot be established. As regards to the Bundesländer, the First Senate clarified that they still have a responsibility to protect the climate, particularly by virtue of Article 20a of the German Constitution.

Rights invoked:
The applicants invoked violations of freedoms guaranteed under the domestic Constitution, especially those in Art. 2(2) of the German Constitution (right to life and physical integrity and freedom of the person), in combination with Article 20a of the Constitution (protection of the natural foundations of life and of animals). They invoked these rights in their ‘intertemporal dimension’, i.e. taking on the framing of the Neubauer case, which considered that failure to act now on climate change means excessively impacting future freedoms.

Date of decision:

18 January 2022

Suggested citation:
German Bundesverfassungsgericht, Cosima Rade et al. v. Baden-Württemberg, Decision of the First Senate of 18 January 2022 – 1 BvR 1565/21 et al.

Related proceedings:
For the other related cases see:

Luca Salis et al. v. Sachsen-Anhalt

Lemme et al. v. Bayern

Emma Johanna Kiehm et al. v. Brandenburg

Alena Hochstadt et al. v. Hessen

Otis Hoffman et al. v. Mecklenburg-Vorpommern

Leonie Frank et al. v. Saarland

Tristan Runge et al. v. Sachsen

Jannis Krüssmann et al. Nordrhein-Westfalen (NWR)

Matteo Feind et al. v. Niedersachsen

Links:

For the decision in German, see here.

Categories
2022 Children and young people Deciding Body Domestic court Emissions reductions/mitigation Germany Keywords Paris Agreement Right to life Rights at stake State concerned Year

Jannis Krüssmann et al. v. Nordrhein-Westfalen (NWR)

Summary:
This case is one of ten separate constitutional complaints and one subsidiary popular complaint supported by the NGO Deutsche Umwelthilfe against ten German States (“Bundesländer”). It was brought by four young people against the German State of Nordrhein-Westfalen (NWR) in the wake of the Neubauer v. Germany judgment of the German Bundesverfassungsgericht. They contest the State’s failure to chart a course towards greenhouse gas emissions reductions by adopting legislation on climate protection. Like in the eleven related cases, the plaintiffs here argue that the Bundesländer share responsibility for protecting their lives and civil liberties, along with those of future generations, within their respective spheres of competence. According to the plaintiffs, the lack of legislation on climate action on the state level violates the German Constitution and the reductions regime under the Paris Agreement. They also submit that they have a fundamental right to defend themselves against future rights impacts caused by the lack of climate measures.

NWR is the state with the biggest population and the highest greenhouse gas emissions. Its 2013 Climate Protection Act was revised on 1 July 2021. According to the plaintiffs, the targets for the years 2030 (greenhouse gas reduction by 65%) and 2040 (reduction by 88%), are insufficient.

On 18 January 2022, the First Senate of the Federal Constitutional Court dismissed all eleven complaints for lack of adequate prospects of success. In alignment with its argumentation in Neubauer v. Germany, the First Senate recognized that the burden of CO2 emissions reductions must not be unilaterally offloaded onto future generations. However, the First Senate stated the individual legislators of the Bundesländer have not been been given an overall reduction target to comply with, even at the expense of freedom protected by fundamental rights. Thus, according to the First Senate’s decision, a violation of the obligations to protect the complainants from the dangers of climate change cannot be established. As regards to the Bundesländer, the First Senate clarified that they still have a responsibility to protect the climate, particularly by virtue of Article 20a of the German Constitution.

Rights invoked:
The applicants invoked violations of freedoms guaranteed under the domestic Constitution, especially those in Art. 2(2) of the German Constitution (right to life and physical integrity and freedom of the person), in combination with Article 20a of the Constitution (protection of the natural foundations of life and of animals). They invoked these rights in their ‘intertemporal dimension’, i.e. taking on the framing of the Neubauer case, which considered that failure to act now on climate change means excessively impacting future freedoms.

Date of decision:

18 January 2022

Suggested citation:
German Bundesverfassungsgericht, Jannis Krüssmann et al. v. Nordrhein-Westfalen (NWR), Decision of the First Senate of 18 January 2022 – 1 BvR 1565/21 et al.

Related proceedings:
For the other related cases see:

Luca Salis et al. v. Sachsen-Anhalt

Lemme et al. v. Bayern

Emma Johanna Kiehm et al. v. Brandenburg

Alena Hochstadt et al. v. Hessen

Otis Hoffman et al. v. Mecklenburg-Vorpommern

Leonie Frank et al. v. Saarland

Tristan Runge et al. v. Sachsen

Cosima Rade et al. v. Baden-Württemberg

Matteo Feind et al. v. Niedersachsen

Links:

For the decision in German, see here.