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

Jurisdiction: Federal Constitutional Court

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

Side A: Marlene Lemme, David Schiepek, Lukas Schulz, Stefan Emmerichs, Julius Papst, Kaspar Seßner, Friedl Seßner, Andreas Mäckler, Clara Göppel -Ramsurn, and Lucie Göppel-Ramsurn (Individual)

Side B: State of Bayern (Government)

Core objectives: The inadequacy of a climate protection law in the State of Bayern.

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, supported by environmental organization Deutsche Umwelthilfe (DUH; Environmental Action Germany), brought a constitutional claim against the state of Bayern (Bavaria) for the inadequacy of its adopted climate law. The plaintiffs relied on the German Constitution (Basic Law) and the Paris Agreement, as transposed in the Federal Climate Protection Act (KSG), to request the state legislature to set a GHG emissions reduction pathway towards achieving climate neutrality by 2045, necessary to comply with the KSG and the overarching 1.5°C temperature target. 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 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 also 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, and compliance monitoring. Plaintiffs argued that these measures were insufficient to achieve the overall federal targets of the Federal Climate Protection Act.

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 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.

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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