Climate protection between the legislature and the judiciary – Who actually decides here?

For years, climate protection has been one of the major issues politicising large parts of society. While many consider climate protection to be imperative, the question of how far protective measures should go is highly controversial.

This explains the deeper reason for the increasing number of climate lawsuits filed in various courts around the world. As an illustration, there are lawsuits by individuals for damages as well as lawsuits by environmental associations for injunctions, against CO₂ emissions. These are being heard before civil or administrative courts for the enactment or amendment of official measures. In addition, there are also complaints before the constitutional courts regarding violations of fundamental rights by regulations of the Climate Protection Act, both in the present as well as in the more distant future. All these proceedings have a common theme – the dissatisfaction of plaintiffs with the level of protection provided by climate protection. The criticism is that legislators do little or nothing at all in this area so plaintiffs are forced to seek protection in court they feel that they are being denied to them by parliaments.

Almost all of these proceedings have received a great deal of public attention and many plaintiffs consider this publicity to be a successful result in its own right, with the outcome of the trial becoming a minor matter. However, public attention can have more far-reaching consequences than winning the case. The plaintiffs, unlike the defendants, find themselves in a favourable situation. They gain an advantage one way or the other. The public perception of such proceedings can indeed be a reason for legislators to take a closer look at climate protection issues. The issue then actually lies where it belongs on the basis of the constitution, namely with the legislature, which, according to the Constitution and the case law of the Federal Constitutional Court (Bundesverfassungsgericht), has to make the essential decisions itself rather than leave them to the administration or the courts.

This raises the problem of what courts are actually supposed to base their decisions on when lawsuits are filed for which there are no legal decision-making standards. The following should be noted in this regard. The Constitution binds the judiciary to law and justice. It is derived from this that courts are not fundamentally reduced to applying and interpreting laws and searching for legal indications. In the absence of legal provisions, however, it can also be asked what can be recognised as law by the courts based on general criteria.

In the case of climate claims, however, it is not easy for the courts to decide what the law is. For example, can companies be held liable for years in which they were operating in accordance with legal provisions, i.e. they had all permits under the Federal Emission Control Act (BImSchG) and acted in accordance with the CO₂ emissions trading system. The answer to such fundamental questions lies beyond what courts can derive from provisions or recognise as law. Only the legislature can make such decisions.

Parliament, and thus the elected members of parliament, are obliged by the Constitution to set the framework conditions. They cannot delegate these decisions to the executive or judiciary or refrain from setting such regulations entirely.

Individual courts of lower instance, such as the Regional Court of Stuttgart (judgment of 13.09.2022; 17 O 789/21), have already stated this in their rulings. This confirms what courts have long held in numerous rulings, especially in environmental law, on the division of roles between parliament and the judiciary. The far-reaching decision of the Federal Constitutional Court on climate protection (BVerfG, Decision of 24.03.2021; 1 BvR 2656/18, 1 BvR 288/20, 1 BvR 96/20, 1 BvR 78/20) has also pointed the legislature to its constitutional limits and demanded regulations that protect fundamental rights not only today but also in the future.

Questions of causality also come up against the limits of judicial possibilities and powers. Which body decides who has contributed to climate change through CO₂ emissions? In relation to an individual company or a single person, natural science alone is likely to encounter difficulties in providing a solid answer. This does not mean, of course, that beyond these strict requirements plausibility is not applied. However, whether such considerations will suffice for the proof of causality may be doubted in regard to the current validity of the causality requirements in German law. In the past, the Federal Court of Justice (Bundesgerichtshof) (BGH, judgement of 10.12.1987; III ZR 220/86) denied this in the so-called forest damage case (Waldschadensfall).

Looking to the future, we will have to wait and see whether case law will relax the requirements for proof of causality, both in Germany as well as in other countries. In this international matter, the judgements from other countries are likely to be increasingly noticed across borders and influence case law in other countries. This will certainly apply to the question of causality determinations. The findings of other courts do not trigger any legally binding force for courts in other countries. However, courts will have to deal with in the facts in other cases. Why, for example, a determination of causality by a court in one country using the same facts should be irrelevant in another.

So what does this all mean? Courts dealing with climate change claims will certainly have to limit themselves to the application of existing law. Neither will courts find answers to the large and complex questions simply by further developing the law. The legislature must therefore fulfil the task of shaping the law which is its responsibility. Simply waiting will not benefit the climate, citizens or the economy. What is needed, therefore, is a regulation that is as ambitious as it is competitive and realistic. A transformation to a CO₂-neutral society requires, for example, a targeted planning law for renewable energies and power lines. If Germany takes a pioneering role in this, it can serve as a model for other countries. This will not be to the detriment of companies, but conversely will generate advantages through early adjustment to new requirements. This creates competitive advantages. Convincing and innovative solutions are therefore needed. It is important to balance the interests of all parties involved. For those who have to implement climate protection measures all this must be justifiable and affordable. Only an elected parliament can achieve such a balance of interests. Only in this way can everyone be “taken along”.

The original article in German language can be found in the Börsen-Zeitung Spezial Wirtschaftskanzleien 2022 here.