Neubauer v Germany

Neubauer v Germany (24 March 2021) 1 BvR 2656/18 (also the Klimaschutz case) is a landmark German constitutional law case, concerning the duty of the German federal government to take action to prevent climate damage.

Luisa Neubauer and others brought a constitutional complaint against the Federal Climate Change Act, that the Germany government was not acting quickly enough to comply with constitutional rights in the Grundgesetz 1949, including the right to life and the duty to protect the environment.

The German Constitutional Court held that the government had a duty to speed up its climate protection measures, as part of its constitutional duty to protect the rights to life and the environment under, respectively, article 2 and article 20a of the Grundgesetz 1949. It held that the causal link between manmade emissions and climate change, that all release of CO₂ caused more warming, and that any carbon budget was limited. It rejected that because Germany could not stop global warming alone, it did not have responsibility: on the contrary it was necessary that Germany undertook action to encourage others to do so and international cooperation. The Court said the following.^[1]

119. There is a direct causal link between anthropogenic climate change and concentrations of human-induced greenhouse gases in the Earth’s atmosphere (...). CO₂ emissions are particularly significant in this regard. Once they have entered the Earth’s atmosphere, they are virtually impossible to remove as things currently stand. This means that anthropogenic global warming and climate change resulting from earlier periods cannot be reversed at some later date. At the same time, with every amount of CO₂ emitted over and above a small climate-neutral quantity, the Earth’s temperature rises further along its irreversible trajectory and climate change also undergoes an irreversible progression. If global warming is to be halted at a specific temperature limit, nothing more than the amount of CO₂ corresponding to this limit may be emitted. The world has a so-called remaining CO₂ budget. If emissions go beyond this remaining budget, the temperature limit will be exceeded.

...

202. Either way, the obligation to take national climate action cannot be invalidated by arguing that such action would be incapable of stopping climate change. It is true that Germany would not be capable of preventing climate change on its own. Its isolated activity is clearly not the only causal factor determining the progression of climate change and the effectiveness of climate action. Climate change can only be stopped if climate neutrality is achieved worldwide. In view of the global reduction requirements, Germany’s 2% share of worldwide CO₂ emissions (...) is only a small factor, but if Germany’s climate action measures are embedded within global efforts, they are capable of playing a part in the overall drive to bring climate change to a halt....

203. The state may not evade its responsibility here by pointing to GHG emissions in other states. (...) On the contrary, the particular reliance on the international community gives rise to a constitutional necessity to actually implement one’s own climate action measures at the national level – in international agreement wherever possible. It is precisely because the state is dependent on international cooperation in order to effectively carry out its obligation to take climate action under Art. 20a GG that it must avoid creating incentives for other states to undermine this cooperation. Its own activities should serve to strengthen international confidence in the fact that climate action – particularly the pursuit of treaty-based climate targets – can be successful while safeguarding decent living conditions, including in terms of fundamental freedoms. In practice, resolving the global climate problem is thus largely dependent on the existence of mutual trust that others will also strive to achieve the targets.

• German constitutional law
• EU law
• Lliuya v RWE AG (2015) Case No. 2 O 285/15 duty of power company in tort to compensate for climate damage
• Urgenda v State of Netherlands (20 December 2019) duty of state to cut emissions in line with Paris Agreement and right to life
• Smith v Fonterra Co-operative Group Ltd [2021] NZCA 552 duty of oil and power companies in tort to pay for climate damage
• Milieudefensie v Royal Dutch Shell (26 May 2021) duty of oil company in tort to cut emissions in line with Paris Agreement and right to life
• McGaughey and Davies v Universities Superannuation Scheme Ltd [2022] EWHC 1233 (Ch), directors' duties to plan to divest fossil fuels in light of Paris Agreement and right to life

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