Status: 27/08/2023, 14:04 p.m.
By: Bernhard Pötter
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Climate protection in Germany (symbolic image). © Christian Ohde/Imago
The legal climate target for 2030 is likely to be missed by far. Lawyers and environmentalists see this as a breach of the law. Does the climate policy of the traffic light violate the constitution?
After two audit reports on the impact of German climate policy, a debate has begun as to whether the German Climate Protection Act (KSG) and the resulting Climate Protection Programme (KSP) are compatible with the Basic Law. According to the report of the Expert Council on Climate Issues and the 2023 forecast report from the Federal Environment Agency, climate activists accuse the federal government of "breaking the law" because its planned measures are not sufficient for the goals of the KSG. The reports also provide them with arguments in the ongoing climate trials before German courts. The Ministry of Economics and Climate Change (BMWK), on the other hand, rejects the allegations at the request of Table.Media.
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This article is IPPEN. MEDIA as part of a cooperation with the Climate.Table Professional Briefing – it was first published by Climate.Table on 25 August 2023.
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Expert advice: Too much CO₂, inaccurate data, no overall concept
On Tuesday, the Council of Experts on Climate Change announced how it assesses the "Climate Protection Programme 2023" presented by the German government with around 130 measures. So:
- Germany is reducing the "climate protection gap" in emissions from around 2030,1 to around 100 million tonnes by 200: The programme thus has a "high, but insufficient reduction claim according to the Climate Protection Act".
- if the data basis is "extensive, but insufficient overall", the stated "reduction effect" cannot be confirmed.
- there are "significant uncertainties and uncertainties" in the report. The gap in climate protection is likely to remain larger than assumed by the government, and the mitigation effect is overestimated.
- the cumulative gap by 2030 will be 35 million tonnes in the building sector and 117 to 191 million tonnes in transport. The measures "thus do not meet the requirements for an immediate programme under the Climate Protection Act".
- there is a lack of a "coherent, coherent and consistent overall concept and an overarching framework of measures".
The failure could cost 15 to 30 billion euros
The Federal Environment Agency (UBA) presented its 2023 projection report on the same day. He also confirms that Germany will not achieve its goals under the Climate Protection Act with previous efforts. By 2030, 331 million tonnes of CO₂ equivalent would be emitted too much with today's measures, while further measures would still release 194 million tonnes too much into the atmosphere. With previous measures, the KSG's reduction target of 65 percent in 2030 would be missed by minus 63 percent.
According to initial estimates, missing the target in the area of European climate efforts could also be expensive for Germany. If the targets are missed, Germany would be forced to buy emission allowances from other EU countries for part of the emissions under the "effort-sharing" chapter. Estimated costs by 2030 are 15 to 30 billion euros.
"Failure to meet the target is constitutionally questionable"
This announced failure to meet the KSG's target could be unconstitutional, according to a legal opinion published last week by the think tank Agora Verkehrswende and Agora Energiewende. According to the report, "the climate protection programme does not meet the legal requirements for several reasons". According to the report, the "significant misses in targets" are also constitutionally questionable. It was created by the law firm Günther, among others by the well-known lawyer Roda Verheyen. Verheyen was involved in the constitutional lawsuit on the basis of which the Federal Constitutional Court passed its landmark decision on climate protection in 2021.
The present report finds "significant deficiencies" in the government's "overall package" of the drafts for the climate protection law, climate protection programme and projection data, which "are also constitutionally problematic in the overall view". Although the KSG draft is in itself constitutional and EU lawful, its requirements must also be implemented in order to protect the climate and the future civil liberties of future generations – and there are "structural hurdles" that make effective implementation difficult: for example, the elimination of sector responsibility in the amendment to the KSG.
Due to the "fulfillment gap" of about 200 million tons and the lack of clarity about data and measures, the climate protection plan is "clearly illegal". The failure to meet the targets is "constitutionally questionable" because they shift the burden of climate protection measures further into the future, which contradicts the safeguarding of "intertemporal freedom" as demanded by the Federal Constitutional Court.
Ministry: Much achieved, but still need for action
The Federal Ministry for Economic Affairs and Climate Action (BMWK) defends itself against these allegations on request. A spokeswoman explains: "With the KSP 2023, the climate protection gap that has accumulated from previous legislative periods will be significantly reduced from approx. 1,100 million tonnes to approx. 200 million tonnes. This means that much has already been achieved, but at the same time there is still a need for action. It is, of course, the right of every citizen to take legal action against the government's climate protection policy. Our task is to remove the need for these lawsuits."
Environmental associations, on the other hand, speak of a "breach of the law" by the government. "The German government's climate policy violates the law," says Christoph Bals of Germanwatch. The group "Last Generation" also complains: The "government continues to break climate protection law". The German Environmental Aid, for example, which has already filed several climate lawsuits, sees the report of the expert council as a welcome argumentation aid for its lawsuits.
Felix Ekardt, lawyer and head of the Research Centre for Sustainability and Climate Policy in Leipzig, also said: "The current climate protection targets in the KSG are already unconstitutional and also violate the Paris Climate Agreement. If the government once again clearly fails to meet these inadequate targets, it will be even more unconstitutional."