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Emma Johanna Kiehm, et al. v. State of Brandenburg

Jurisdiction: Federal Constitutional Court


Principle law(s): Federal Climate Protection Act and to change further regulations ("Bundesklimaschutzgesetz” or “KSG")


Side A: Emma Johanna Kiehm, Lina Freyert, Ameline Pelikan, Prof. Paul Brodowsky, Ruth Feinel-Brodowsky, and Wolfgang Georgsdorf (Individual)


Side B: State of Brandenburg (Government)


Core objectives: The lack of a climate protection law in the State of Brandenburg.


Summary
On June 30, 2021, the youth plaintiffs Emma Johanna Kiehm, Lina Freyert, Ameline Pelikan and landowners Prof. Paul Brodowsky, Ruth Feindel-Brodowsky and Wolfgang Georgsdorf, supported by environmental organization Deutsche Umwelthilfe (DUH; Environmental Action Germany), brought a constitutional claim against the state of Brandenburg for its failure to adopt a climate protection law. The plaintiffs invoked the state’s duty to protect their fundamental rights – including personal freedoms and rights to property – to request that the state legally stipulate a GHG emissions reduction pathway towards achieving climate neutrality by 2045, to comply with the Federal Climate Protection Act and the overarching 1.5°C temperature target, as informed by the Paris Agreement. This case is part of a series of eleven separate constitutional complaints supported by DUH against ten federal states, following the Constitutional Court’s Neubauer decision in 2021.

The plaintiffs relied on the Constitutional Court’s decision in Neubauer v. Germany, following which Germany adjusted its climate goals at the federal level. Plaintiffs argued that codification of a legally binding reduction path is also required at the state level, as 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 inaction by the state of Brandenburg breaches both plaintiffs’ fundamental rights, and the state’s constitutional obligations. 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 lack of action by the legislature of Brandenburg.

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. 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. 

Case documents

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