Litigating Enforcement: Germany’s Contested Climate Governance and the New Wave of Climate Litigation

Climate litigation in Germany has achieved another major victory. On November 30, 2023, the Higher Administrative Court Berlin-Brandenburg ruled in DUH and BUND v. Germany that the federal government must adopt an immediate action program (‘Sofortprogramm’) under the Federal Climate Change Act (CCA). The program is intended to ensure compliance with the annual emission targets for the building and transportation sectors for the years 2024 to 2030. Unlike in the 2021 landmark ruling in Neubauer et al. v. Germany of the Federal Constitutional Court, the focus of the decision is not on fundamental rights, but on administrative questions of climate governance and enforcement. The judgment and the underlying (political and legal) conflicts are also interesting beyond their German relevance, as the case raises fundamental questions for climate governance. The judgment shows how important it is to define (sector-)specific emission reduction obligations and compliance mechanisms, and for their enforcement to be justiciable. Moreover, the case illustrates how contested some elements of Germany’s climate transformation have been since the 2021 Neubauer decision. Against this backdrop, the decision of the Higher Administrative Court must also be understood as part of a new wave of climate litigation.

The Immediate Action That Wasn’t

The context of the judgment is a long-standing conflict within the German government over the depth and speed of Germany’s climate transformation. The governing ‘traffic light coalition’ brings the Social Democratic Party (SPD), the Green Party, and the economically liberal Free Democratic Party (FDP) together. These three parties have very different climate policies and visions for climate governance. While the Green Party traditionally advocates for ambitious climate policies, the SPD focuses more strongly on the interests of industrial unions and still emphasizes the importance of fossil fuels for energy security and the industrial sector in Germany. The FDP, on the other hand, is pursuing an increasingly aggressive strategy, rejecting numerous climate measures by referring to emerging “future technologies,” and “freedoms” (such as the freedom to drive without speed limits). (Examples abound: see here, here, and here).

The FDP’s management of the Ministry of Transportation goes to the heart of the case decided by the Higher Administrative Court Berlin-Brandenburg. In March 2022, the German Environment Agency determined that Germany’s transportation and building sectors had exceeded their maximum allowable annual emissions (the building sector exceeded its sectoral target by 2.5 million tons of CO2 equivalent, and the transportation sector exceeded its target by 3.1 million tons of CO2 equivalent). To achieve the national climate targets, the CCA divides emission budgets into different sectors and allocates the responsibility for ensuring compliance with annual emission budgets to the federal ministry mainly responsible for the sector in question. This structure of sectoral responsibility is currently being reformed at the behest of the FDP and is expected to be replaced with a system that allocates overall responsibility to the federal government.

In line with the current governance mechanism of the CCA, the German Council of Experts on Climate Change had confirmed the emission gap in the transportation and building sectors. This then triggered a legal obligation of the two relevant ministries, the Ministry of Transportation and the Ministry for Housing, Urban Development and Building, to present an immediate action program ensuring compliance with sectoral annual emission levels for the upcoming years. Both ministries presented respective programs. However, the Council of Experts on Climate Change concluded that the measures taken by the Ministry of Transportation are “without sufficient ambition even at the outset” and that the program, therefore, does not fulfill the requirement of the CCA. It was not just the Ministry of Transport that remained inactive. As a final step to compensate for target failures in emission reduction goals, the CCA requires that the federal government decides “as quickly as possible” on immediate action measures after a ministry has submitted an immediate action program. However, this has not occurred, again due to resistance from the FDP. To compel the federal government to fulfill its legal obligation under the CCA, two environmental associations filed a lawsuit in the Higher Administrative Court.

The Judgment

The Administrative Court endorsed the plaintiffs’ line of reasoning and mandated the federal government to introduce an immediate action program that meets the requirements of the CCA.

The mere admissibility of the lawsuit is a victory in itself, given that German environmental law – at least in its express wording – does not give environmental associations the right to sue for the implementation of immediate action programs under the CCA. However, the plaintiffs contended that German procedural law should be interpreted in accordance with the Aarhus Convention and European law, thereby permitting environmental associations to litigate for an immediate action program to be issued. The court concurred with this line of argument in its verdict (the details of which are pending as the reasons for the judgment have not yet been published).

On the merits as well, the court ruled in favor of the plaintiffs. In particular, the court did not follow the government’s argument that a “climate action program” adopted in 2023 fulfills the requirements of an immediate action program, because these are two different measures under the CCA. An immediate program is characterized by the fact that it incorporates short-term effective measures to ensure adherence to the annual emission targets stipulated in the CCA. However, the federal government has not adopted such a program, therefore violating a binding obligation.

Responsibility, Enforcement, Pressure: Why the Judgment Matters

To buy time, the federal government is likely to appeal against the judgment. The reason for this is that – as mentioned above – the CCA is currently being reformed. If the reform of the CCA comes into force before a decision at the next instance in the Federal Administrative Court, the proceedings will be settled due to the new legal situation. The judgment of the Higher Administrative Court can no longer be implemented in this case.

And yet, even if the above scenario is the most likely outcome, the judgment matters for three reasons.

Firstly, the judgment illustrates how well some mechanisms of the CCA interact and that the reform to abolish sectoral responsibility in the CCA is a mistake. According to the federal government’s plans, both the sector targets (as a compliance instrument) and the immediate action programs of the ministries are to be abolished. This is regrettable because a court ruling and the public and political pressure that follows from it can provide an incentive for a ministry to take its climate goals seriously, and subject it to more targeted pressure and accountability. That incentive function would then be gone. According to the draft law for the new CCA, it is no longer (only) the ministry responsible for exceeding emissions targets that is responsible for correcting course, but the entire government. The result is less pressure on those actors in a government who do not take climate goals too seriously.

Secondly, the judgment not only highlights how important judicial enforcement is as a core dimension of climate governance but has also strengthened this dimension beyond the case at hand. Parts of the federal government have tended to treat the sectoral targets and immediate action programs as soft law rather than binding law. This is partly due to the fact that regulations on sectoral targets are located at the interface of law and politics and to some extent form a broad framework for political decisions without establishing a ‘subjective’ legal position that can be litigated by an actor. During the oral proceedings before the court, a representative of the federal government even argued that the obligations of the CCA were merely “internal law,” a mere non-justiciable self-commitment of the federal government. Likewise, some top politicians expressed the view that implementing sectoral targets “to the letter” would be impossible because the majority of the population would not want this. The fact that the court has rejected such an interpretation is also significant for the reformed CCA. Insofar as the obligation of the CCA meets certain conditions (for example, specific formal and substantial requirements and a deadline), courts will most likely enforce the CCA in the future.

Thirdly, the judgment is also a success for Germany’s climate action movement. As part of the German tradition, law plays an extremely important role in Germany’s climate movement. The “ongoing breach of law” has become a central argument that the movement uses to mobilize support and frame demands, and also plays an important role in how actors justify civil disobedience. With this judgment, the climate movement has another argument that Germany’s climate policy is not ambitious enough that is easy to communicate and message.

The New Climate Litigation Wave

Finally, the case has to be contextualized against the current state of climate litigation in Germany. More than two and a half years after the Neubauer case, large parts of the climate movement are frustrated with German climate policy. As the parliament was less ambitious due to disputes over climate policies in the government, extra-parliamentary channels are becoming increasingly important.

At the level of courts, environmental groups are pursuing various strategies. One set of lawsuits (like the one discussed here) revolves around compliance with the CCA. A complaint before the Higher Administrative Court of Berlin-Brandenburg, which is expected to be heard by the court in the spring of 2024, argues, for example, that the federal government must establish a general climate protection program that complies with the annual emission targets set in the CCA. Another set of climate lawsuits (see here, here, here, and here) tries to transfer some principles from the Neubauer judgment into civil law, for example, through lawsuits against car manufacturers (all of which were dismissed at first instance). And finally, fundamental rights and the Federal Constitutional Court are about to move back into the spotlight: a constitutional complaint filed in October 2023 argues that Germany’s emissions gap is so great (around 200 million tons of CO2 equivalents by 2030, and most likely even greater) that the principle of intertemporal freedom developed in Neubauer is violated. The plaintiffs are not alone in this assessment. In August 2023, over 60 professors of public law pointed out that the current German federal government policies acutely threaten compliance with the requirements of the Neubauer judgment.

Climate litigation in Germany is differentiating and becoming more sophisticated, with 2024 expected to be a very important year. The judgment of the Higher Administrative Court of Berlin-Brandenburg should not only be understood as a win for the climate movement against this background, but also as a warning from the courts that the legislative and executive branches are still not taking the climate crisis seriously enough.

Many thanks to Liz Hicks, Philipp Schönberger, and Konstantin Welker for valuable feedback.

Maxim Bönnemann
International and Comparative Law Research Scholar at University of Michigan Law School | + posts

Maxim Bönnemann is an International and Comparative Law Research Scholar at University of Michigan Law School.