On 30 November 2023, the 11th Senate of the Federal Administrative Court of Berlin-Brandenburg issued a landmark ruling requiring the federal government to formulate and implement an immediate action plan for climate protection. This ruling, which is firmly rooted in the Federal Climate Change Act (KSG), represents a significant development in the judicial enforcement of climate protection mandates in Germany. The environmental NGOs Deutsche Umwelthilfe (DUH) and Friends of the Earth Germany (BUND) initiated the lawsuit to force the government to meet its legal obligations.
The court found that the federal government had failed to meet its legal obligations by failing to take adequate measures to ensure compliance with the established climate targets, particularly in the transportation and building sectors. Despite mandates and the fact that the German Council of Experts on Climate Change (“ERK”) found the government’s existing measures to be inadequate, no immediate action plan has been presented that meets the requirements of the Climate Change Act. The current Climate Protection Program predicts a significant shortfall in climate targets by 2030, exceeding 200 million tons of CO2 equivalents. The ERK found previous efforts to be insufficient, and even the updated climate protection programs did not meet the legal requirements, despite a certain degree of discretion granted to the government. The government is therefore instructed to draw up an immediate action plan to ensure that the emission targets in the building and transport sectors are met between 2024 and 2030.
Notably, the court granted standing to environmental associations even though the KSG does not explicitly provide for it.
The ruling of the Federal Administrative Court of Berlin-Brandenburg, if upheld, will have a significant impact on the enforcement of climate change legislation. It sets a precedent for the judicial review and enforcement of legally mandated climate protection measures and underscores the need for effective corrective action in the event of deviations from targets. While the immediate impact of the ruling remains uncertain in light of the pending amendment to the Climate Change Act, it clearly signals that the judiciary is willing to take a more active role in enforcing climate change targets.
The German government now faces the urgent task of acting quickly to develop an immediate action plan that complies with the KSG and contributes to mitigating the climate crisis. However, Federal Transport Minister Wissing has stated that the government intends to appeal the court’s decision. It is conceivable that the government will argue that the forthcoming amendment to the Climate Protection Act could negate the basis for the decisions. The proposed legislative revision aims to replace sector-specific emission targets with a holistic accounting framework, thereby eliminating the attribution of emissions to individual ministries. As part of this legislative revision, the requirement for immediate action plans will also be removed.
(22 December 2023)