Unsuccessful constitutional complaints regarding the regulation of greenhouse gas reduction pathways by Land legislators

Press Release No. 7/2022 of 01 February 2022

Order of 18 January 2022
1 BvR 1565/21, 1 BvR 2058/21, 1 BvR 2057/21, 1 BvR 2056/21, 1 BvR 2055/21, 1 BvR 2054/21, 1 BvR 2575/21, 1 BvR 2574/21, 1 BvR 1936/21, 1 BvR 1669/21, 1 BvR 1566/21

In an order published today, the First Chamber of the First Senate of the Federal Constitutional Court did not admit for decision eleven constitutional complaints, some of which challenged existing Land (federal state) climate protection laws, while others challenged the failure of Land legislators to lay down greenhouse gas reduction pathways in legislation.

Fundamental rights – by way of the obligation to take climate action arising from Art. 20a of the Basic Law (Grundgesetz – GG) and the constitutional duties to protect against the effects of climate change (Art. 2(2) first sentence and Art. 14(1) GG) – afford protection against a situation where the necessary efforts to reduce greenhouse gas emissions are unilaterally offloaded onto the future if this would lead to disproportionate burdens being placed on future generations, given the climate action that would then be necessary. Where legal provisions lay down total CO₂ amounts that may be emitted in the medium term, they can be challenged in constitutional complaint proceedings if they have advance interference-like effects (eingriffsähnliche Vorwirkung) for later periods. Advance interference-like effects can only be established if the legislator is bound by a roughly recognisable emissions budget that defines what levels of CO₂ emissions are still permissible overall. Moreover, when complainants assert that future freedoms are restricted in a disproportionate manner, the constitutional complaint must generally challenge the entire framework of currently permissible CO₂ emissions since it is typically only this framework, and not individual actions or omissions of the state, that can lead to disproportionate reduction burdens being placed on future generations. In the case at hand, there are no reduction targets that would allow remaining CO₂ budgets to be derived for specific Länder, not even roughly.

Facts of the case:

Referring to the Federal Constitutional Court’s Order of 24 March 2021 - 1 BvR 2656/18 inter alia - Climate Change, the complainants assert a violation of fundamental rights in their dimension of safeguarding freedom over time. In part, they also assert a violation of state duties of protection following from Art. 2(2) first sentence and Art. 14(1) GG. The complainants are predominantly minors and young adults. They claim that their future freedom is not sufficiently protected given that they might face enormous CO₂ reduction burdens and the Land legislators have not taken the necessary measures to mitigate these burdens.

Key considerations of the Chamber:

The constitutional complaints have no prospects of success.

I. It cannot be found that the challenged Land legislation violates the constitutional obligation to safeguard fundamental freedom over time and to spread such freedom proportionately.

Legislation laying down the overall CO₂ amounts that may be emitted in the medium term can be challenged by way of constitutional complaint if it leads to interference-like restrictions of protected fundamental freedoms for later periods since it already – not just de facto, but with advance legal effects – sets the course for restrictions of fundamental rights that will be inevitable in the future, given the climate action that will then be required by the state. In such cases, the constitutional complaint must generally challenge the entire framework of currently permissible CO₂ emissions enacted by the respective legislator since it is typically only this framework, and not individual actions or omissions of the state, that can lead to disproportionate reduction burdens being placed on future generations. There is no need to decide here on the extent to which the challenged Land legislation amounts to an overall framework of this kind; in any case, it is not ascertainable that the challenged legislation has advance interference-like effects. Such effects could only be established if the legislators addressed by the constitutional complaints were bound by a roughly recognisable emissions budget that defined what CO₂ emissions were still permissible overall. Only in this case would the challenged Land legislation entail, from a legal perspective, specific emission reduction burdens and resulting restrictions of freedom for the time after the periods governed by the legislation in question. However, the individual Land legislators are not bound by overall reduction amounts that are even roughly reviewable and which they would have to comply with even to the detriment of protected fundamental freedoms. No such Land-specific reduction targets can be inferred from the Basic Law or from ordinary federal law.

II. In view of the existing federal legislation on this matter, the Court cannot currently establish any violation of the duties to protect the complainants from the risks posed by climate change, which follow from Art. 2(2) first sentence and Art. 14(1) GG. It is not ascertainable that the absence of a Land climate protection law could change this finding.