Germany

There are several cases of project-specific litigation in environmental matters that are relevant for climate litigation. Most of these cases are based on planning and licencing laws as well as their respective procedural dimensions. However, to date, no case explicitly challenging the government for authorising a project that frustrates efforts to mitigate of climate change or leads to ineffective adaptation has been decided by courts.

There is a long line of cases, e.g. relating to nuclear power (BVerfG, 1979), noise by air and car traffic (BVerfG, 1981, BVerfG, 1988), ozone (BVerfG, 1995), electro smog (BVerfG, 1997). Claimants commonly allege that the State had breached its duty to actively protect the fundamental rights of its citizens. However, in none of the mentioned cases the Constitutional Court actually assumed that a protective duty had been violated. More specifically, in a case regarding a planning permission for a long-term deposition of nuclear waste (BVerfG, 2009), based, among others, on Articles 20a, 2 II, 14 and 1 of the German Constitution (Basic Law – BL), the Constitutional Court held that citizens have to accept a minimum residual risk. However, other cases also provided that risk prevention can be part of the protective duty of the State if it serves to prevent fundamental rights violations.

In the pending law suit DUH vs. Stralsund Mining Authority (2020) the NGO Deutsche Umwelthilfe argued that the Mining Authority must review its 2018 planning permission issued on the basis of Article 43.1.2 Energy Industry Law (former version) for a gas pipeline and to order risk assessment measures linked to the related methane emissions, based on recent scientific findings.

In order to have standing, individuals have to show that they can rely on a norm that provides a direct entitlement for them or is intended to protect them as a directly concerned third party, e.g. as a neighbour. This requirement is challenging for climate change litigation because the rules requiring the authorities to take climate protection into account normally do not single out individual rights or protections of third persons. Therefore, planning law decisions that are detrimental to the climate may only be challenged where other interests are at stake that include an individual rights dimension.

Due to the implementation of the Aarhus Convention, claims based on procedural violations play a particular role for processes of planning and licensing. The Environmental Remedies Act provides that environmental NGOs can inter alia challenge acts that require an environmental impact assessment on substantive or procedural grounds. This is an exception to the mentioned century-old German administrative law doctrine of the subjective public right since by their very nature, NGOs will normally not be directly concerned in their rights. This new instrument of claims by NGOs by way of collective action is still in process to becoming accepted in practice. Furthermore, the implementation of the Aarhus Convention – and several rulings of the European Court of Justice – has widened the scope for standing of individuals, particularly in regard to rights of information and participation.

With regard to legal grounds in the area of planning law, relevant norms can be found in the Federal Construction Code or in the Federal Code on Protection against Emissions, often complemented by law of the respective federal state. Regional plans that concretise spatial planning can play a major role, as well. Yet, taking into account global climate protection in the balancing exercise during planning processes has so far not always worked very well, as this concern is not taken sufficiently seriously and has been considered as too abstract.

In the area of licencing law, climate litigation could become relevant where a building or piece of infrastructure is subject to a particular risk from climate change, e.g. flooding, which may cause damage to the neighbour´s property. So far, however, no case has been decided along those lines.

Regarding the procedural dimension, § 1 Environmental Information Act provides a right to information. Individuals can also challenge licensing decisions that are not based on a (sufficient) environmental impact assessment to the extent that the lack of such an assessment has made it impossible for the claimant to participate in the deliberation process (§ 4 I, III in conjunction with § 1 Environmental Remedies Act).

Finally, claimants can hold the State accountable for legal violations through the instrument of State liability (Article 34 BL in conjunction with § 839 of the German Civil Code). In the Forest-Damage-cases (BVerfG, 1998) private forest owners sued the State, alleging a violation of their property right (Article 14 I BL) due to increased air pollution, which would cause their forests to decline and be attributable to the State. However, the Constitutional Court held that liability for a global phenomenon such as forest decline as a result of distant emissions is a matter for the legislator and cannot be established by courts. State liability may be triggered indirectly in future cases, if the right to life, physical integrity or property is at stake.

In the area of planning and licencing law, breaches can mainly be remedied in so far as planning decisions are overturned or licences withheld. Furthermore, § 6 of the Environmental Information Act grants an individual remedy where information regarding infrastructure projects is unduly withheld.