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Klimaschutzklage: Wie gut stehen Deine Chancen, erfolgreich eine lebenswerte Zukunft einzuklagen?

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Klimaschutzklage: Wie gut stehen Deine Chancen, erfolgreich eine lebenswerte Zukunft einzuklagen?

Climate protection is a fundamental right that future generations are also entitled to. In 2021, the first German climate protection lawsuit was filed. The Federal Constitutional Court ruled that the state must do more and react faster to ensure an environment worth living in and to preserve intergenerational justice. Currently, the legislature is preparing many new regulations: Climate protection is now a priority. This article explains the legal background to the climate protection lawsuit.

The most important facts about the climate protection lawsuit

What is a climate protection lawsuit?

A climate protection lawsuit is any lawsuit that is related to climate protection. The aim of this action can be the creation of new standards or the improvement of valid regulations by the legislator. Climate protection lawsuits can also bring government bodies or companies to court, where they are ordered to cease and desist from environmentally harmful activities and/or sued for damages.

Who is responsible for climate protection from a legal perspective?

Legally, the state is responsible for climate protection. As soon as a right to something – as well as the right to climate protection – arises, a duty also arises. On a legal level, we speak of a duty to protect.

Who can sue for climate protection?

Any natural or legal person can sue for climate protection: you as an individual, individual companies or organizations, and also several plaintiffs together.

Where can you file climate protection lawsuits?

As the administrative organ of the state, the federal government is the highest authority. It has a duty to protect and care for its people. Jurisdiction depends on the nature of the action:

Do you need a lawyer's background to file a climate change lawsuit?

Theoretically no, practically yes. In principle, lawyers are not required to represent plaintiffs. However, plaintiffs should have specialist knowledge so that their chances of success increase. If you do not have any legal expertise yourself, we recommend that you contact environmental organizations and climate protection associations. They can provide you with competent legal advice.

Juristic background: Where is your right to climate protection anchored?

The legal basis are

the Paris Agreement,
the Green Deal,
the Climate Protection Act,
the Supply Chain Precautionary Obligations Act (also known as the Supply Chain Act) and
individual laws to protect the various environmental assets.

We spoke with Greenpeace spokesman Benjamin Stephan and asked him what tools citizens can use to sue for climate protection. He said:
“The instruments available to citizens in Germany depend on who you want to sue for climate protection. If I see my rights violated by government action or inaction, I must file a lawsuit against the federal or one of the state governments in the administrative court. If my fundamental rights are violated, it may be a constitutional complaint to the Federal Constitutional Court. If I see my rights violated by a company’s climate-damaging behavior, I demand that the company cease this behavior or eliminate the damage. If it does not comply with this demand, a civil lawsuit follows. The process is not fundamentally different from a lawsuit with a neighbor or a workman.” He also reports:

"So far, citizens have teamed up with environmental groups to file a lawsuit. These support the lawsuits. The origin of the climate ruling of the Federal Constitutional Court in April 2021, for example, was a lawsuit by several organic farmers supported and accompanied by Greenpeace for years. It ultimately led to the German government improving its climate protection law. This successful constitutional complaint is the only highest-instance climate ruling in Germany to date. The proceedings are complex and usually go through several instances - this costs time, energy, and resources that are difficult for a single person to manage."

The legal basis for the climate protection lawsuit

The Climate Protection Act is particularly important: the focus is on climate targets for Germany. It was passed in 2019 to integrate the European Green Deal into the German legal system. In 2021 – thanks to Germany’s first successful climate lawsuit – the Climate Protection Act was amended. Climate law is part of the comprehensive environmental law. This includes all regulations on, for example, immission protection, nature conservation, animal protection, soil protection, water protection and waste law.

Germany is a federal state. This means that responsibilities are divided between the federal government and the states. In the past, there were some attempts on the part of the legislature to bring everything under one roof and create a so-called environmental code. This was supposed to realign and simplify environmental protection. However, no major progress has been made to date. In the meantime, the Federal Environment Ministry has announced that further steps in the reform project will be halted.

Although the Environmental Code is off the table (at least for the time being), legislators continue to deal with environmental and climate protection. Some laws are being prepared or are in the process of being amended.

Liveable future as a fundamental right

Journalists are increasingly reporting climate-related phenomena such as heat waves, violent storms, floods and landslides. Our actions do not only have immediate consequences for us – climate protection lawsuits are primarily intended to protect our children from the devastating consequences.
The right to climate protection is the right to the future, to living space and livelihoods for future generations. The Federal Constitutional Court recognized this as a fundamental right in 2021. Let’s now take a look at how the laws around climate protection are developing and how citizens can actively sue for a future worth living.

The emergence of climate protection and the current status

Fundamental rights seem to have been taken for granted in Europe for ages, but in fact they were not created that long ago. It was not until 1948 that the Universal Declaration of Human Rights was proclaimed. Since then, it has been constantly adapted and expanded.

75 years is only a brief moment in the entire history of mankind. Not to mention awareness of climate protection – that is still in its infancy. In fact, the German Climate Protection Act was not passed until 2019.

The climate protection obligation

Climate protection has been enshrined in the German constitution since 1994. Accordingly, the state is obligated to work for climate protection.

According to Article 20a of the German Basic Law, the state’s duty to protect the climate is to safeguard the natural foundations of life for you and your descendants.

Thirty years ago, climate protection was an abstract undertaking. There were no concrete requirements or enforceable claims. It was a so-called legal state objective to be enforced by laws. Legislators were now faced with a new task: they had to take environmental protection into account in all legislative actions and measures. It was not until many years later that it was possible to speak of proper laws and standards – and it will probably be some time before we can enjoy systematic and implementable legislation that incorporates climate protection in almost all parts of social life.

We asked Greenpeace spokesman Benjamin Stephan whether he thinks the state has already created the right legal tools for companies to become greener. He’s skeptical:
“Germany lacks the necessary legislation in almost all areas to even ensure that goals from the Climate Protection Act are achieved. This gap is particularly clear in the case of globally operating German companies such as Volkswagen. Here, there is a lack of stipulations that they must, for example, align the strategy of their entire group with climate protection targets.”

Climate protection law to be declared unconstitutional in 2021

A climate lawsuit gets the ball rolling in 2021: The Federal Constitutional Court declares the climate protection law in force until then to be unconstitutional. The decision is based on the right to life and health (Article 2 (2) sentence 1 of the German Basic Law) and also includes the fundamental right to property (Article 14 (1) of the German Basic Law), because climate change-related events can also damage property such as agricultural land.

What exactly does this mean? All German citizens are legal entities with regard to environmental and climate protection. Therefore, they can make claims under certain conditions.

Facts about the climate protection lawsuit:

The letter from an eleven-year-old girl named Marlene from Munich triggered the climate protection lawsuit.
Deutsche Umwelthilfe filed its lawsuit against the government of the Federal Republic of Germany with the Federal Constitutional Court in January 2020.
It consisted of 2 lawsuits: one for those directly affected in Bangladesh and Nepal, and a second for Marlene's upcoming generation, who will have to bear the long-term consequences of climate change.
In March 2021, the Federal Constitutional Court declared the Climate Protection Act unconstitutional because the climate targets were too far in the future.

Sources:
Verfassungsbeschwerde Bundesregierung – Deutsche Umwelthilfe e.V. (duh.de)
Bundes-Klimaschutzgesetz | Gesetze und Verordnungen | BMUV

The amendment of the Climate Protection Act

The successful climate change lawsuit has forced lawmakers to make changes to the climate change law. These include:

The "climate neutrality" target is brought forward five years (2045).
Binding interim targets with reference values compared to 1990 were set.
The target is to reduce greenhouse gases from 55 to 65 percent by 2030.
An annual emissions volume reduction of 88 percent is targeted by 2040.

Source:
Fact Sheet Klimaschutzgesetz (bmuv.de)

The conflicting goals: profitability vs. sustainability

Why has it taken lawmakers so long to do this, despite scientific evidence and ongoing citizen protests like Fridays for Future? Concrete measures to achieve the green targets have been repeatedly postponed. Germany’s climate change law did not go into effect until 2019, and it has already been declared partially unconstitutional! Further delays are no longer acceptable. For a long time, economic interests were in the foreground. Something has to change as soon as possible so that we can move forward with the green agenda.

On the other hand, companies are faced with the major task of changing their business processes, using new energy sources or investing in other technologies. All of this costs time and money. In addition, policymakers still disagree on whether green credentials for renewable energy and new technologies are sufficient. According to critical voices, every aspect of the development, production and disposal process must be considered comprehensively.

The success of climate protection lawsuits worldwide

The United Nations Environment Programme produced an overview of ongoing climate change litigation. You can find the report on so-called climate change litigation online under the name Climate Change in Court – A Global Overview. According to it, 884 climate change lawsuits were filed in 24 countries in 2018. In 2020 alone, there were 1,550 lawsuits in 38 countries. In fact, so far only 2 lawsuits – one in Germany and one in France – have been completely successful. A couple resulted in at least partial success. Some lawsuits are still pending. At first glance, this doesn’t sound like much, but these climate protection lawsuits set an example and certainly influenced progress in climate protection law: in 100 countries, climate protection is now considered a fundamental right.

By filing a climate change lawsuit, the public can hold their government accountable worldwide and legally demand the enforcement of climate-related laws and policies. Greenpeace’s factsheets on climate protection worldwide show that the number of climate lawsuits filed is on the rise.

The Hague District Court’s order to Shell to introduce more comprehensive climate protection measures was groundbreaking (Aktenzeichen C/09/571932, HA ZA 19–379).

Paris Agreement - together against climate change

Climate protection does not stop at borders, nor does climate change. Since 1972, possible solutions have been discussed at the international level in climate negotiations. The EU Parliament has compiled an interactive timeline – an overview of climate negotiations.

197 countries agreed to limit global warming as part of the Paris Agreement. The temperature is to be reduced compared to pre-industrial levels (“well below 2 °C”). In the long term, the countries are to achieve 1.5 °C if possible.

Green Deal

One year later, the Convention was approved by the European Parliament, making it the very first worldwide, legally binding and global climate protection agreement. Europe has set itself ambitious goals and wants to be a role model for other countries.
With the help of this European climate law, the EU is to drastically reduce CO₂ emissions in all sectors by 2050 and thus become the first climate-neutral continent. All countries have committed to recording national emissions and publishing the data in a transparency report.

According to this report, Germany was responsible for 22% of European greenhouse gas emissions in 2020. On a global level, that’s 1.06% (and falling). Compared to large economies such as China and India, Germany has a short path to climate neutrality ahead of it.

ESG and CSR give rise to further obligations for companies

You may already have come across the terms Corporate Social Responsibility (CSR) and Environmental Social Governance (ESG). We will go into these in more detail below.

What does social responsibility mean?

In 2010, some countries developed an ISO guideline that defines Social Responsability. In Germany, this standard was published in April 2021 as DIN EN ISO 26000. It serves as a guideline and makes recommendations for organizations. Unlike the Compost OK Home certificate, for example, the standard is not a certification, but merely describes what behavior is considered positive. Companies can use the guideline as a roadmap to convert their business processes even before the introduction of a duty or use the standard to slowly prepare for the upcoming “tsunami wave”.

What does Corporate Social Responsibility (CSR) mean?

Sustainability has both social and environmental implications. The Paris Climate Agreement was the basis for CSR: all corporate activities are to be covered by the term Corporate Social Responsibility (CSR) with regard to human rights, social aspects and environmental aspects.

According to Article 289b et seq. HGB (German Commercial Code), certain capital-oriented companies must, for example, prepare an annual CSR report in addition to the financial report. More and more (potential) business partners are asking questions that have nothing to do with finance. With these reports, companies answer these questions to assess corporate values, image and customer loyalty. Further legislation in this area is already being planned.

What's the deal with greenwashing and reporting requirements?

CSR has led many companies to present themselves as green to the outside world, even though their products and services have little or nothing to do with it. The technical term for this is greenwashing.

Currently, there are no concrete standards against greenwashing to take legal action against these companies. Nevertheless, many lawsuits have already been filed against greenwashing.

A current example is the lawsuit filed on September 26, 2022: Verbraucherzentrale Baden-Württemberg is suing Deutsche Bank subsidiary DWS for “misleading advertising for allegedly sustainable investments”(Az. 3-10 O 83/22).

Other examples include the Foodwatch vs. Rewe lawsuits and the complaint against Lufthansa in the United Kingdom. Several organizations are jointly campaigning for a general ban on advertising for fossil products. These lawsuits are intended to activate legislators to address missing standards and jurisdictions.
The EU Commission now wants to finally put a stop to greenwashing. A law is being planned that will protect consumers and provide them with transparent and reliable information about the sustainability of products. Labels such as “environmentally friendly” or “sustainable” should thus be better protected and promises verifiable.

What does ESG mean?

In terms of due diligence, the legislator has already gone one step further. Due diligence is already enshrined in law as a specific duty. ESG stands for Environmental Social Governance, i.e. environmentally conscious and socially fair corporate governance. ESG encompasses not only ecological but also ethical issues. The aim is to create and strengthen a responsible corporate culture. This should be reflected in all corporate activities.

ESG consists of three sustainability-related areas of responsibility:

Environment: pollution, environmental hazards, greenhouse gas emissions, energy efficiency
Social: labor law and health protection, gender justice, social responsibility
Sustainable corporate governance: enduring corporate values, corporate management and control processes

More and more specifications oblige companies to comply with these ESG criteria. An example of the application of due diligence can be found in the Supply Chain Due Diligence Act: Medium-sized and small enterprises (SMEs) are obliged to prevent human rights and environmental violations within their supply chains and to detect and eliminate violations. Companies that already take the ESG criteria to heart minimize their risk of receiving climate protection lawsuits and accumulating climate debt.

What you can do for climate protection

Yes, you have a fundamental right to a future worth living. When it comes to climate protection, you have a number of tools at your disposal.

Change your perspective

The focus is on changing the way you think and act. Every little action, like using sustainable products or changing your habits in everyday life, has an impact on the environment and can inspire those around you. Here in the magazine we give you tips for real levers in everyday life for more sustainability and how you can recognize greenwashing and thus make better decisions.

Use your right to demonstrate

To lend weight to your demands, you can participate in demonstrations (e.g. Fridays for Future) or become active yourself in your region and contribute your ideas.

Making use of legal instruments

As mentioned at the beginning, climate protection is based on various legal foundations. And as Greenpeace spokesman Benjamin Stephan has summarized well for us, you have a few options:

If you see your rights violated by government action or inaction, you must file a lawsuit against the federal or one of the state governments in administrative court.
If you see your basic rights violated, it may be a constitutional complaint to the Federal Constitutional Court.
If your rights are violated by a company's climate-damaging behavior, you can demand that the company cease this behavior or repair the damage. If the company does not comply with this demand, a civil lawsuit will follow.

These paths can be implemented especially well together with environmental associations.

Conclusion on the climate protection lawsuit

Although a lot is happening right now, there is still a long way to go: vigilance is now called for. Citizens can proactively sue for true sustainability and social justice with a climate change lawsuit. These two concepts are significantly influencing a new green mindset. They should be reflected in social action. In the actions of individuals, organizations as well as companies and public institutions.

Business and politics are on the verge of a revolutionary change in the law and already today there are numerous legal instruments with which you can make your contribution. The change of the climate protection law due to the climate protection lawsuit shows: It is one of these effective instruments. The climate protection lawsuit can pave the way for a major turnaround. For true sustainability, however, we then need not only successful lawsuits, but also consistent and, above all, such comprehensive legislative adjustments that make the EU’s high targets (1.5 degrees) at all realistic. The consistent and not so hesitant implementation of the targets in all areas of life is crucial.

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