Neubauer times sixteen – protecting future generations within Germany’s federalist system

This blog was written by Maxine Fromm as part of the Master Law and Sustainability (2022-2023) at Utrecht University School of Law. 

Introduction

In April 2021, the German Constitutional Court (GCC) delivered its well-known Neubauer judgment. The judgment declared that the 2019 Federal Climate Change Act (FCCA), which set out national climate targets until 2030, does not sufficiently safeguard the constitutionally protected rights of future generations. Inspired by the hopes Neubauer sparked, cases against a number of Germany’s sixteen federal states were brought before the GCC, challenging the states’ climate laws (or the absence thereof). However, in its judgment of January 2022 (German), the GCC made clear that the fight of climate litigation can currently only be fought on federal level. The GCC’s conclusion was based on applying conditions that have been set out for the federal legislator in Neubauer to the state legislators. As will be seen, the GCC thereby disregarded the federal legislature’s dependence on state legislation, which could ultimately lead to an incoherent climate protection framework.

Background: The competence puzzle of German climate protection law

To understand the background of the joined cases before the GCC, it is necessary to examine which role the states play in climate protection legislation, i.e., what competences they have.

The competences of the federal and state legislators are laid down in the German constitution, which differentiates between exclusively federal and shared competences. Under the shared competences, states can only adopt legislation as long as the federal legislator has not done so yet (art. 70). However, the legislative powers of the states should not be underestimated. Firstly, the federal legislator needs to get the approval of the Bundesrat, representing the sixteen states, for passing any laws that impact the states’ finances (art. 77). Even if the laws do not impact the states’ finances, the Bundesrat can object to the bill. This objection can, however, be overturned by parliament (art. 77). Secondly, the federal legislator often grants explicit legislative discretion to the states in federal laws, which allows them to pass complementary and more specific legislation on state level.

Overview of state competences

This has also been the case for the FCCA. The FCCA, which has been amended after the Neubauer judgment, lays down national CO2 reduction targets and annual emission permissions that need to be fulfilled to stay within the national CO2 budget. This budget has been calculated by a national expert commission and consists of the CO2 emissions that Germany can still emit to fulfil its obligations under the Paris Agreement. The FCCA distributes this CO2 budget among different sectors, such as the energy, waste and transport sector (see Figure 2). Importantly, the FCCA does not allocate CO2 budgets to the states. Instead, it allows states to enact their own climate change legislation in compliance with federal law (section 14). To that extent, states may adopt more specific climate legislation, which can contain state-wide targets and measures to achieve them.

Next to the FCCA, many other federal acts grant the states legislative discretion in fields that may be relevant for climate protection, such as local public transport (German). For example, expanding the public transport system and creating more bike paths, which could help reduce car use and thereby emissions, falls under the states’ competences. Therefore, states can adopt laws based on competences that are not explicitly environmental, but still have impacts on climate protection.

Considering the above, there is not one climate protection competence, but rather a puzzle of different relevant competences at federal and state level. The fact that state laws can significantly impact climate protection has been the reason why cases against several states have been brought before the GCC.

The attempt to replicate Neubauer at state level

Several claimants brought multiple cases (German) against the lack of specific CO2 reduction targets in the states’ climate protection laws, or the absence of such laws. The claimants were supported by the NGO Deutsche Umwelthilfe, which had successfully backed the Neubauer claimants. As the claimants heavily relied on Neubauer, key aspects of it are revisited.

In Neubauer, the GCC ruled that by not defining specific CO2 targets beyond 2030, the FCCA does not sufficiently protect the constitutional freedoms of future generations. In its judgment, the GCC determined that the FCCA had an ‘advance interference-like effect’ on fundamental freedoms, i.e., that the FCCA had a significant potential for drastic and irreversible interferences with fundamental rights in the future (para 183). This was determined based on how the FCCA allocated the national CO2 budget to the present and future generation. By only setting climate targets until 2030, the present generations could use up much of the remaining CO2 budget, which would leave less for future generations. This would put an undue burden on future generations to achieve reduction targets with ‘ever greater speed and urgency’ (paras 245-246).

Based on this judgment, the claimants (German) in the joined cases argued that the states, just as much as the federal legislature, must ensure the constitutional freedoms of future generations and therefore adopt specific CO2 targets. Specifically, it was highlighted that states cannot use EU and federal action as an excuse to not act themselves, as they are able to significantly contribute to climate protection. However, the GCC was not convinced, primarily because the states are not bound by CO2 budgets.

The GCC’s judgment: CO2 budget as a knock-out criterium

Given that the state legislators are not bound by a specific CO2 budget set out in the FCCA, the GCC concluded that the states cannot infringe the constitutional rights of future generations (para 4). As the federal legislator set the CO2 budget only on national level, it is only the federal legislator’s responsibility to specify CO2 targets that ensure that the CO2 budget is equitably shared among generations. Whether states adopt specific CO2 targets or not is therefore immaterial for the GCC; the federal legislator has to ‘take care of it’ on its own. It is, however, questionable whether the absence of a CO2 budget should be the sole determining factor for a potential constitutional infringement.

Does the absence of a CO2 budget truly preclude a constitutional infringement of the states?

In its judgment, the GCC adopted an atomistic approach and assessed state legislation detached from its relevance for the national CO2 targets set out by the FCCA. The question the GCC answered in its judgment was whether state level climate protection laws have an ‘advance interference-like effect’ on their own. The GCC thereby disregarded that the federal legislature cannot effectively adhere to any allocated budgets without the cooperation of the states. Instead, the question at stake should have been whether the absence of specific CO2 targets at state level risks that the national CO2 budget cannot be adhered to.

Indeed, there are several grounds to conclude that the absence of CO2 targets at state level could do exactly that. As mentioned before, numerous competences that have been granted to the states are relevant for climate protection and state laws have, in fact, often blocked federal climate protection measures. An example is Bavaria’s building code (German), which determines a minimum distance from windfarms to residential areas. Although the building code has been loosened up recently after long political debates, it ‘virtually stopped any windfarm development’ (German) in Bavaria for years and severely obstructed the national goal of designating 2% of German land to windfarms. If Bavaria would underlie a reduction obligation, it would have certainly thought twice about blocking windfarm developments. As argued by several legal scholars (for instance, Perino et. al.), without specific targets states will continue to bypass responsibilities and meddle with national climate protection measures. On a more practical note, CO2 targets which could be adopted by states to comply with the national budget have already been developed by several research institutes (see, for instance, Mecklenburg-Vorpommern and Brandenburg).

At this point, and in line with the GCC’s judgment, it could be argued that it is the federal legislator’s responsibility to strike down stubborn states and tighten their competences to ensure the implementation of national targets. While the federal government (German) increasingly tries to gain more control, this endeavor is not as straightforward as it may seem. First of all, there is a reason for why the states have several legislative competences. State laws generally allow for accommodating region-specific needs and can often tackle regional difficulties more effectively  (German). Moreover, given that states have legislative discretion in many different fields, an enormous overhaul of federal legislation would be needed. This would not only be extremely time-intensive, but also difficult to push through. As mentioned above, the Bundesrat could object to legislation introduced by the federal legislator, and it is likely that the states are not willing to approve any laws stripping them off competences.

The GCC therefore assigns the responsibility for implementing national targets solely to the federal legislator, without considering that the federal legislator is very much limited in what it can do without state cooperation. If no CO2 targets are set at state level, it is more than likely that the FCCA’s targets cannot be fulfilled. And as acknowledged by the GCC itself, if these targets cannot be fulfilled, an undue burden to fulfil reduction obligations for future generations would be created, putting their constitutionally protected freedoms at risk.

Putting the pieces together

Circling back to the competence puzzle introduced earlier, it becomes clear that the different competence pieces must work cooperatively towards a coherent climate protection framework. To achieve Germany’s climate targets, everyone must do their part. Rather than expecting the federal legislator to scrape this puzzle and replace it with more federal legislative power, which is a tedious legal task, more responsibility should be imposed on states. The FCCA does, indeed, acknowledge the need for cooperation and sets out a cooperation obligation for the states (section 14). This cooperation obligation should not be treated as a hollow formality, but a fundamental condition for the FCCA’s success. Although states are not bound by a CO2 budget on state level, they are still bound to support the implementation of CO2 targets on national level.