By Dr. Alexander Behnsen ||

Due to the ongoing pandemic the topic of climate change has for now taken a somewhat back seat. Nevertheless, the problems arising from global warming remain pressing, in Germany as well as in the United States. President Joe Biden has given this issue one of the top positions in his political agenda. He has not only chosen former secretary of state John Kerry as special envoy for climate,[1] but has also (re-) joined the Paris Agreement on his first day in office.[2]

The Paris Agreement (PA), in enhancing the implementation of the United Nations Framework Convention on Climate Change aims to strengthen the global response to the threat of climate change, by i.e. holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels.[3] To achieve this aim, the agreement itself does not define concrete obligations of each party to limit its emissions of greenhouse gases to a certain extent, but follows a so called “nationally determined” approach. Each party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures with the aim of achieving the objective of such contributions.[4]

Compared to the U.S., the law making process in Europe and Germany has already moved somewhat further. The obligations arising from the Paris Agreement have been transferred into binding European Union law, as well as into national law. On European level the Regulation (EU) 2018/842[5] rules, that each EU member state shall, in 2030, limit its greenhouse gas emissions at least by a certain percentage, defined in annex I of the regulation, in relation to its greenhouse gas emissions in 2005.[6] Germany will therefore have to reduce its greenhouse gas emissions by 38% in relation to its 2005 level. To fulfill this obligation and to provide protection from the effects of worldwide climate change by ensuring achievement of the national climate targets and compliance with the European targets, Germany has passed the Federal Climate Change Act of 12 December 2019.[7] According to section 4 (1) of this act, annual reduction targets shall be set by stipulating annual emission budgets for six sectors: energy, industry, transport, buildings, agriculture, and waste and others. Therefore, in Germany a legal framework to implement the necessary greenhouse gas emission reductions according to the Paris Agreement is already existing. But this alone will not be sufficient. So far, the federal law basically defines the targets. Beside the Federal Act on the Reduction and Termination of Coal-Fired Power Generation,[8] which has been passed in August 2020, legally binding rules on the concrete measures, which are necessary to reach these targets, are widely still missing, and it will possibly be much more difficult to pass them, esp. when it comes to the sector of transport.[9] Therefore, in Germany as well as in the U.S. politics and law makers cannot twiddle their thumbs by just relying on what has been achieved, but lots of work remains to be done.

But what if politics or the administration are reluctant to move forward and to make the next necessary steps for the efficient reduction of greenhouse gas emissions to reach the 2°C goal, or if they will be reluctant in the future? Will the law, which has been passed so far, or will the obligations defined in the Paris Agreement will turn out as toothless? Alternatively, will it be up to the courts to use their power to enforce the law or even to force the government(s) to comply with international obligations? The Paris Agreement itself does not create a judicial body, competent to give legally binding judgements, to which individuals or states can appeal to, claiming a party violates or does not fulfill its obligations arising from international law.[10] Therefore, it will largely be the national courts, which will have to deal with lawsuits, intending to force governments to intensify their efforts to fight global warming. While this issue has been considered at the responsibility of the political institutions, and while courts have not played a major role in that field during the farer past, so called “climate litigation” has increased during the last years. In Germany, as well as in other European countries and in the U.S. several legal actions have been filed.[11] However, although the courts have already delivered a number of decisions, many questions remain open. In upcoming cases, courts will have to deal with questions like causality of the non-fulfilling of emission reduction targets by states for the violation of individual rights. As well, they will have to deal with the question of how wide the margin of appreciation of the states’ governments and law makers is in regard to the question of which concrete measures they may or must take to reach the 2°C goal, or whether an individual right to reach this goal exists at all etc.

But, before answering the question of “What?”, so the question, which obligations courts may impose on states at the end of a judicial procedure, one will have to answer the question of “Who?”, so the question, who has the necessary legal standing to file such actions. May it be individuals, organizations or other players? The answer to the latter question may in Germany be different to what it may be in the U.S.

In Germany, individuals will have to overcome high obstacles, when claiming legal standing for a lawsuit, aiming to force the government or even the law makers to undertake efforts to reach the emission reduction targets, if they consider the efforts taken so far as non-sufficient. In general, under German law, an action shall only be admissible if the plaintiff claims that his rights have been violated by an administrative act or its refusal or omission.[12] The violation of the plaintiff’s individual rights by a decision or omission of the government or the administration must at least be possible. An actio popularis is usually inadmissible. Therefore, in a climate litigation case an individual may have to give proof or at least will have to submit substantially, that a violation of his subjective rights, i.e. the right to life, the right to personal health or his property rights, is causally determined by the non-fulfilling of the emission reduction goals. This may be extremely difficult, because such possible violations do not arise from single governmental actions or omissions, but from a combination of different emissions of greenhouse gases, not necessarily in a single state, and because the harmful impacts of global warming, that might pose a threat to a person’s individual rights in the end, are not connected to certain emissions in terms of time, but are the result of an ongoing global process.[13] When it comes to the emission reduction targets set up by the Federal Climate Change Act, things are even more difficult, because the law itself rules explicitly, that subjective rights and actionable legal positions are not established by or on the basis of that act.[14] The annual emission reduction targets therefore only set up objective obligations to the federal government,[15] but – also according to the statement of grounds for the act – do not constitute individual actionable rights.[16] If the administrative courts will take this provision seriously, and in the light of the explicit wording of the law, one has to assume, that they will do so, it will be almost impossible for an individual to file an admissible climate litigation action, claiming that the authorities fail to fulfill their obligation to set up and to enforce the necessary rules to reach the national emission reduction targets. Unless the Federal Constitutional Court does not declare the provision of Section 4 (1) 7 of the Federal Climate Change Act invalid, individuals will likely not play the major role in the field of climate litigation with regards to Germany’s national emission reduction targets in the future.

In fact, the most important player in that field will possibly be the environmental protection organizations. Under European Union law as well as under German law, environmental protection organizations serve as an “attorney of the environment”. Because the environment itself has no possibility to file an action claiming a violation of its rights, the organizations may do so in its place, to enforce also objective legal obligations set up by environmental law provisions through court procedures. One may assume, that Section 4 (1) 7 of the Federal Climate Change Act will not block this power with regards to the national emission reduction targets completely.

According to Art. 9 (3) of the so called Aarhus Convention[17] each party shall ensure that, where they meet the criteria, if any laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment. This obligation – as well as the other obligations arising from the convention – has been transferred into European Union law as well as into German law, namely the Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz). According to Section 2 (1) of this act special environmental protection organizations may under certain conditions, without claiming a violation of their subjective rights, take legal action under the provisions of the Code of Administrative Court Procedure (VwGO) against administrative decisions or omissions that are defined in Section 1 (1) 1 of the Environmental Appeals Act. So, if necessary actions to reach the national emission reduction targets fall within the catalogue of Section 1 (1) 1 of that act, the provision of Section 4 (1) 7 of the Federal Climate Change Act may not be able to block an environmental protection organization from using judicial proceedings to enforce also the legal obligations to reduce greenhouse gas emission. As far as the wording of Section 4 (1) 7 of the Federal Climate Change Act states, that no subjective rights are established by or on the basis of that Act, this may not limit an organization’s legal standing, because Section 2 (1) 1 of the Environmental Appeals Act states, that these organizations have legal standing, even if they do not claim a violation of their individual or subjective rights. As far as the wording of Section 4 (1) 7 of the Federal Climate Change Act states, that no actionable legal position is established by or on the basis of that act, an interpretation of that provision in a way that it also blocks legal standing not only of companies and individuals but also of environmental protection organizations would likely violate Germany’s legal obligations arising from Art. 9 of the Aarhus Convention.[18] According to the jurisdiction of the European Court of Justice (ECJ), as well as the Federal Administrative Court of Germany (Bundesverwaltungsgericht) national courts of parties to the Aarhus Convention as well as of member states of the European Union are required to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9 (3) of the Aarhus Convention and the objective of effective judicial protection of the rights conferred by EU law, so as to enable an environmental protection organizations to challenge before a court a decision taken following administrative proceedings liable to be contrary to EU environmental law.[19] National law, being in conflict with that obligation may not be applied.[20] And one cannot seriously doubt that also the national emission reduction targets are part of the environmental law falling into the scope of the Aarhus Convention and of European Union environmental law. These binding targets have just been established by the Federal Climate Change Act to fulfill Germany’s obligations under European Union law, esp. the Regulation (EU) 2018/842.[21]

Therefore, regarding an organization’s standing for legal action regarding the national emission targets the question remains, whether actions to reach these targets fall within the catalogue of Section 1 (1) 1 of the Environmental Appeals Act. Although this is not sure, one may assume that the courts’ answer – at least in a number of cases – will be in the affirmative. In general and according to the jurisdiction of the Federal Administrative Court, the terms mentioned in Section 1 (1) 1 must not be interpreted too narrowly. Especially Section 1 (1) 1 No. 5 and 6 have a wide scope of application.[22] Although both provisions apply only to administrative acts, which grant permit to certain types of projects, and although the fulfillment of the national emission reduction targets can obviously not be taken as granting such permission, one may at least still bring forward the argument, that esp. Section 1 (1) 1 No. 6 in combination with Section 1 (2) of the Environmental Appeals Act opens a way for legal actions by environmental protection organizations with the aim to reach the emission reduction goals. Possibly, no legal standing will be recognized for actions to force the government in an abstract way to fulfill its obligations. But it seems possible, that courts will accept at least legal action, claiming, that the administration has failed or omitted to enact sufficient supervisory measures against particular projects to reduce their greenhouse gas emissions and by that way also reach the national emission reduction goals. Whether such action succeed in the end, may be another story. Many more questions need to be answered in this regard, i.e. the question, in how far the greenhouse gas emissions of a single project may be considered as causal for the non-fulfillment of the emission reduction goals. However, at least it seems not impossible that the courts will not deny an organization’s legal standing for such actions and declare them as admissible.

In conclusion, in Germany environmental protection organizations may become the bigger players when it comes to climate litigation. Whether also individuals will be able to get into the same position cannot be predicted so far,[23] bearing especially in mind that the European Court of First Instance has dismissed the so called “People’s Climate Case” as inadmissible.[24] A pending case at the Federal Constitutional court may be able to bring some enlightenment to this question in the nearer future.[25]

In the U.S. things may be different. In the case of “Juliana v. United States”[26] the U.S. District Court for the District of Oregon declared an action filed by i.a. several children and adolescents as admissible, claiming that the U.S. government by omitting measures of greenhouse gas emission reduction or by encouraging and permitting the combustion of fossil fuels violated its legal obligations to protect public grounds as well as their individual rights. However, in January 2020, a Ninth Circuit panel reversed the district court and concluded that the plaintiffs lacked standing.[27] In the case of “Massachusetts et. al. v. EPA” the U.S. Supreme Court sentenced the EPA for omitting the regulation of greenhouse gas emissions concerning the sector of traffic,[28] pointing out, that esp. the states had a particular interest independent of and behind the titles of its citizens with regards to questions of air pollution as a part of protecting their quasi-sovereign interests. The majority of the justices found, that EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that was both “actual” and “imminent” and that there was a substantial likelihood that the judicial relief requested would prompt EPA to take steps to reduce that risk. Therefore, in the U.S. the states may become the major players concerning climate litigation. Nevertheless, also on the other side of the Atlantic Ocean, many questions, also regarding legal standing, seem to remain open, esp. the question, whether individuals will have standing in climate litigation cases.[29]

In conclusion, climate litigation and legal actions aiming to force governments and administrations to take efficient measures to reduce greenhouse gas emissions may become of growing importance in the future. The courts will have to fulfill their duty to enforce the law, as well as to answer the legal questions arising from the upcoming cases.

Lots of work in that field remains for judges and lawyers, but for legal scholars as well.

 

The Author

Dr. Alexander Behnsen serves as a judge at the administrative court of Hamburg and has afore worked as a lawyer, esp. in the fields of public environmental law and public building law, for seven years and as a research fellow at the Walther-Schücking-Institute for International Law for two years.

[1] https://www.nytimes.com/2020/12/16/climate/gina-mccarthy-john-kerry-climate-adviser.html.

[2] https://www.nytimes.com/2021/01/20/climate/biden-paris-climate-agreement.html?searchResultPosition=1.

[3] Art. 2 (1) a PA.

[4] Art. 4 (2) PA.

[5] Regulation (EU) 2018/842 of the European Parliament and of the Council of 30 May 2018 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contribution to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/2013, Official Journal of the Europen Union L 156/26.

[6] Art. 3 (1) of the Regulation (EU) 2018/842.

[7] Federal Law Gazette 2019 I, 2513.

[8] Federal Law Gazette 2020 I, 1818.

[9] see Groß, NVwZ 2020, 337 (342).

[10] Saurer, ZUR 2018, 679.

[11] Saurer, ZUR 2018, 679.

[12] Section 42 (2) of the Code of Administrative Court Procedure.

[13] Groß, NVwZ 2020, 337 (339).

[14] Section 4 (1) 7.

[15] see also Section 4 (4) of the Federal Climate Change Act.

[16] BT-Drs. 19/14337, 28.

[17] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters of 25 June 1998.

[18] see also Klinger, ZUR 2020, 259 (260).

[19] ECJ Case of Lesoochranárske zoskupenie VLK v.Ministerstvo životného prostredia Slovenskej republiky (“Slovakian Brown Bear I”), Judgement of the Court, 8 March 2011, C-240/09; Federal Administrative Court of Germany, 7 C 28.18, ZUR 2020, 296.

[20] ECJ, Case of Protect v. Bezirkshauptmannschaft Gmünd (“Protect”), Judgement of the Court, 20 December 2017, C-664/15.

[21] see also Klinger, ZUR 2020, 259 (260).

[22] see Federal Administrative Court of Germany, 19 December 2019, 7 C 28.18, ZUR 2020, 296; 23 June 2020, 9 A 22/19.

[23] see Saurer, ZUR 2018, 679.

[24] General Court (Second Chamber), Carvalho v. European Parliament and Council of the European Union (“People’s Climate Case”), 8 May 2019, T-330/18.

[25] 1 BvR 2656/18; see also Oexle/Lammers, NVwZ 2020, 1723.

[26] Juliana v. U.S., 217 F.Supp.3 d 1224 (D.Or. 2016).

[27] No. 18-36082 (9th Cir. 2020).

[28] Massachusetts v. EPA, 549 U.S. 497, 528-29 (2007).

[29] see also Saurer, ZUR 2018, 679.