On June 30, 2021, youth plaintiffs Marlene Lemme, David Schiepek, Lukas Schulz, Stefan Emmerichs, Julius Papst, Kaspar Seßner, Friedl Seßner, Andreas Mäckler, Clara Göppel-Ramsurn and Lucie Göppel-Ramsurn brought a claim against the state of Bavaria for the inadequacy of its adopted climate law (2020 Climate Protection Act; BayKlimaG). This action is subsidiary to a constitutional claim by the same plaintiffs, to be declared settled provided that the constitutional complaint is upheld. 

The law under review, Bavaria’s 2020 Climate Protection Act (BayKlimaG) aims to: (i) reduce greenhouse gas emissions by 55% compared to 1990 levels, to 5 tons per inhabitant per year by 2030; and (ii) achieve climate neutrality by 2050. From 2030 onwards, the state is required to offset any emissions above the permitted levels. To achieve these goals, the state set up a climate protection program. The plaintiffs claim that the law lacks provisions for setting annual emission levels, specifications on sector-specific targets, deadlines for the climate protection program, compliance and adaptation monitoring. Plaintiffs argued that these measures are insufficient to achieve the overall federal targets of the Federal Climate Protection Act.

The plaintiffs relied on the Constitutional Court’s decision in <a href="https://climatecasechart.com/non-us-case/neubauer-et-al-v-germany/">Neubauer v. Germany</a>, following which the German government was ordered to adjust its climate goals at the federal level. Plaintiffs argue that ambitious climate protection is also required at the state level to achieve carbon neutrality. Plaintiffs submit that states bear co-responsibility for protecting lives and civil liberties, including safeguarding the natural foundations of life for future generations, within their own sphere of competence. Plaintiffs argued that the Bavarian law falls short of these constitutional requirements. Plaintiffs asserted a violation by the state of its duty to protect, and invoked their constitutional rights, to defend themselves against considerable future restrictions on their freedoms which – in view of rapidly progressing climate change – are to be considered inevitable and are already reflected in the inadequate action of the legislature of Bavaria.

In light of this, plaintiffs argue that the Bavarian Climate Protection Act needs to be adjusted, as it fails to establish a minimum structure to ensure equal burden-sharing and restrictions on fundamental rights across generations; lacks legally regulated time limits for establishing a climate protection program; and fails to set interim goals for the period until 2030. According to plaintiffs, it also fails to specify yearly emissions limits, sector specific targets, or regulate mechanism for the updating of reduction goals and does not set provisions for readjusting emissions targets. Plaintiffs argue that national climate protection and reduction goals can only be reached if adequate governance structures are in place at the state level. 

On January 18, 2022, the First Senate of the Federal Constitutional Court did not admit the eleven complaints for adjudication, on the basis of a lack of adequate prospects, including the constitutional claim against Bavaria. Widely in alignment with its decision in (Neubauer v. Germany), the Court acknowledged that greenhouse gas reduction burdens cannot be unilaterally offloaded onto the future. However, in the cases at hand, complainants’ fundamental rights were not violated preemptively, because the state legislatures are not subject to a CO2 emissions budget, which (according to the Court in Neubauer v. Germany) is a prerequisite for such an effect. Rather, it is the federal German legislature that is bound by the CO2 budget, but has a prerogative with respect to its implementation. As regards the federal states, the Court clarified that they too are responsible for climate protection, in particular by virtue of Article 20a of the Basic Law.  A decision on this subsidiary claim before the Bavarian Constitutional Court is still pending. 

Marlene Lemme, et al. v. State of Bayern (subsidiary claim)

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Marlene Lemme, et al. v. State of Bayern (subsidiary claim) - petition

Filed

Germany

Bayern

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

Tradable permits are market-based tools that grant permission for specific activities, frequently used to regulate emissions. These permits can be issued within a trading system to manage environmental impacts.

Codes and standards are regulatory instruments that specify minimum standards to protect health and safety. This ranges from performance standards, which prescribe outcomes while allowing flexibility to achieve compliance, to the more prescriptive approach of technology-specific standards.

Zoning and spatial planning are both methods for guiding the distribution of people and activities in a space, and are regulatory restriction.

A ban is a legal action that prevents the sale or supply of a product or service, or that recalls a product from the market. Examples are bans on SF6, greenwashing, fossil fuel advertisement or single-use plastics.

A target to reduce the prevalence of a greenhouse gas over a specific time frame

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Conditions that enhance the feasibility of adaptation options. Enabling conditions include finance, technological innovation, strengthening policy instruments, institutional capacity, multi-level governance and changes in human behaviour and lifestyles.

Hot temperature extremes are daily maximum temperatures  that were exceeded on average once in a decade or once in 50 years, and includes heatwaves.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

A drought is an extended period of unusually dry weather marked by a significant and sustained lack of precipitation, falling below a specific threshold over a large area for more than a month

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

Air pollution involves harmful contaminants in the air, affecting both indoor and outdoor environments. It can lead to health issues like respiratory diseases and heart problems, and climate impacts such as global warming. Pollutants can damage plants, trees, habitats, and water bodies like rivers and lakes.

Production of electricity and heat from solar irradiation.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

Coal is a combustible sedimentary rock formed from carbonised plant matter, rich in carbon and hydrocarbons, and occurring in several main types including hard coal and brown coal.

This sector involves managing waste treatment, sanitation, pollution control and environmental cleanup.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

This sector involves activities to move goods and people, alongside the storage of products.

This sector involves activities that impart knowledge and skills to individuals, including formal schooling, vocational training and educational support.

Activities that involve the cultivation of crops and raising of livestock for food, fibre, and other products essential for human life and industry.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Heavy precipitation refers to any form of weather where substances fall from the sky, including rain, snow, sleet, or hail.

Marlene Lemme, et al. v. State of Bayern (subsidiary claim) - petition

Target

Policy instrument

Risk

Impacted group

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance