Germany: Environment

The foundation of environmental policy is constitutionally embedded in article 20a of the German Constitution as well as in the respective provisions in the constitutions of most federal states (Bundesländer). Under article 20a, the protection of the environment constitutes a guiding principle for all government entities, including the enforcement of laws by public authorities. Authorities and courts therefore resort to article 20a when interpreting and applying provisions which involve some discretion on their part.

German environmental law contains several legal provisions designed to protect the environment. There is no overarching environmental act. Instead, relevant provisions are found in numerous separate acts, for example:

• Soil protection under the Federal Soil Protection Act (Bundesbodenschutzgesetz) and the Federal Contaminated Sites Ordinance (Bundesbodenschutzverordnung);
• Water management and control under the Water Act (Wasserhaushaltsgesetz) and the Waste Water Levy Act (Abwasserabgabengesetz);
• Waste control, management, and disposal under the Waste Management Act (Kreislaufwirtschaftsgesetz);
• Immission control under the Federal Immission Control Act (Bundesimmissionsschutzgesetz);
• Nature and landscape conservation under the Federal Nature Conservation Act (Bundesnaturschutzgesetz); and
• Climate protection and energy regulation under the Climate Protection Act (Klimaschutzgesetz), the Renewable Energy Act (Erneuerbare-Energien-Gesetz), and the Energy Conservation Act (Gesetz zur Einsparung von Energie in Gebäuden).

These and other specific acts are complemented by a number of cross-cutting laws, such as the Environmental Impact Assessment Act (Umweltverträglichkeitsprüfungsgesetz), the Environmental Information Act (Umweltinformationsgesetz), the Environmental Damage Act (Umweltschadensgesetz), and the Environmental Appeals Act (Umweltrechtsbehelfsgesetz). All this has led commentators to describe Germany as an ‘environmental state’, i.e. a state that regards environmental protection as one of its central tasks.

Public opinion in Germany is traditionally very sensitive to environmental issues. In particular, climate protection law is fast-moving, with new policies and legislation being shaped in a highly politicised context. This has resulted in investors recognising the significance of environmental issues in Germany, and realising that the utmost care must be taken when dealing with such issues.

However, there is an increasing awareness of the need for swifter administrative permit procedures to ensure investments in Germany. Legislation to accelerate the planning procedure for major infrastructure projects has been adopted at federal level (Infrastrukturplanungsbeschleunigungsgesetz). This shall facilitate planning procedures of highways, railways, waterways or airports. Further legislative initiatives have followed in recent years. These initiatives were at least partially founded on an expert opinion by Dr. Wolf Friedrich Spieth and Niclas Hellermann regarding the speed-up of planning procedures (Spieth et al. Zur Beschleunigung der Genehmigungsverfahren von Eisenbahnbrücken, IR 2018, p. 81). Under this (draft) legislation, the German Bundestag will be empowered to grant certain infrastructure approvals directly (Maßnahmengesetze).

The key areas of German environmental law are dealt with by federal laws. To administer and enforce environmental law, however, is mainly the task of the 16 federal states, subject only to the legal supervision of the federal authorities. However, there are some important federal authorities, e.g. the Federal Ministry of the Environment (Bundesministerium für Umwelt) and the Federal Environmental Agency (Umweltbundesamt). While the Federal Ministry defines the political agenda, the Environmental Agency is in charge of environmental research, planning and the administrative tasks assigned to it by the Ministry.

The administrative authorities (at both the state and federal levels) have a variety of administrative enforcement instruments at their disposal. They may directly compel the permit holder to comply with the permit, levy an enforcement fine (Zwangsgeld), carry out necessary measures themselves at the expense of the operator (Selbstvornahme), revoke permits, or shut down a facility. In addition, in most areas of environmental law, the administrative authorities may impose administrative fines (Bußgeld) if permits or statutory obligations are violated. Such violations are often also subject to criminal penalties. Most notably, breaches of permits related to certain industrial activities incur criminal liability, even if no environmental damage has been caused.

Licences (Bewilligungen) and permits (Genehmigungen) are the central instruments used to ensure compliance with environmental regulations. Since there is no single, all-encompassing environmental permit, a project may require several licences and permits from different authorities. Each authority will review only those provisions for which it is responsible. Only some permits aggregate several environmental law allowances (Konzentrationswirkung), i.e. they replace all or most of the other permits (most importantly, permits under the Immission Control Act).

Whether a permit can be transferred depends on whether the permit is a specific personal permit (Personalkonzession), e.g. containing personal elements inseparable from the permit holder, or an object-related permit (Sachkonzession), which is independent of personal elements, e.g. related to property or installations. Generally, personal permits – which are very rare in environmental law – cannot be transferred from one person to another. Object-related permits (e.g. an operator permit) exist independently of the operator’s identity and can therefore usually be transferred. In some cases, elements of both personal permits and object-related permits are combined, meaning that a transfer is generally possible, but requires approval (either prospectively or retrospectively, depending on the area of law) by the competent authority. Object-related permits are generally transferred together with the plant or property in question. However, sometimes the notification of the competent authority is required.

An applicant may appeal an authority’s refusal to grant an environmental permit. Alternatively, the applicant may appeal against individual conditions stipulated in the permit, which he believes to be unduly onerous. In most federal states, the applicant must generally initiate such appeal proceedings (Widerspruchsverfahren) before bringing an action before an administrative court. Appeals generally have to be filed within one month of the authority’s decision. If the higher authority dismisses the appeal, the applicant may bring action before the administrative court. If the appeal is conceded by the court, the court will take one of three potential courses of action: (i) remit the case to the authority and require the authority to grant the permit; (ii) repeal the unduly onerous condition; or (iii) order the authority to re-consider the application, taking into account the court’s decision.

As a general rule, applicants must be able to demonstrate that the authority’s refusal to grant a permit may violate their rights. A notable exception to this rule are the special remedies available to officially recognised environmental or nature conservation associations (NGOs), which have their legal basis in the Environmental Appeals Act (Umweltrechtsbehelfsgesetz), the Federal Nature Conservation Act (Bundesnaturschutzgesetz), and in corresponding statutes of the states. There is no doubt about the considerable increase in power and influence that environmental associations have enjoyed over the past decade, which has become a challenge for industries and projects. This increase means that a responsible use of the powers and privileges granted to them deserves more legislative attention in the future (see further details in Spieth/Hellermann, Umweltverbände: Mit Macht kommt Verantwortung, NVwZ 2019, p. 745).

In line with EU law requirements, there are two types of impact assessments, which aim to pro-actively determine potential environmental impacts at an early stage, i.e. the environmental impact assessment (Umweltverträglichkeitsprüfung, or UVP/EIA) and the strategic environmental assessment (strategische Umweltprüfung, or SUP).

Industrial and infrastructure projects, which tend to have a significant negative impact on the environment, such as power stations, chemical plants, waste management facilities, railway tracks, and airports cannot receive a permit without an environmental impact assessment. An EIA is also required if such projects are to be altered or extended and thereby exceed a particular size or certain performance values. For potentially controversial projects, EIAs have become a ‘battlefield’ for NGOs, and so it is advisable that such EIAs receive early legal support. In addition, a number of projects, such as paper mills, wind farms, industrial zones or shopping malls, require a preliminary ‘screening’ of their environmental impact, in order to decide whether a full EIA is necessary.

If an EIA is needed, it can significantly delay the permit decision. The EIA must be presented to every authority concerned, as well as to the general public. A public hearing must be held and the authority must produce a comprehensive report on the projected impact (which other relevant authorities must take into account). In contrast to the project-related EIAs, strategic impact assessments are carried out in the context of adopting certain plans, programmes, and policies (e.g. land use and zoning plans).

The EIA is part and parcel of the permit procedure in German law (Huckepackverfahren); it is not an independent element. This means that isolated legal actions against the EIA alone can only be admissible and successful if the disregarded article of the Environmental Impact Assessment Act itself (Umweltverträglichkeitsprüfungsgesetz) provides enforceable rights. According to German case law, the EIA Act itself constitutes procedural rather than material law; in other words, it does not introduce or restrict enforceable rights. In European case law, however, the ECJ increasingly recognises enforceable rights within the procedural EIA-Act itself. With reference to article 11 of the European EIA Directive, the ECJ stated for example in its ‘Altrip-ruling’ of 7 November 2013 that any deficiency in the environmental assessment can in principle lead to a successful legal challenge.

The key statute is the Soil Protection Act. It aims to protect the soil and groundwater against future deterioration and provides for liability and remedial measures for existing contamination. Contamination risks are evaluated on the basis of threshold values set out, inter alia, by an ordinance complementing the Act. Under the Soil Protection Act, several persons/entities may be held liable: the polluter, the polluter’s universal legal successor (Gesamtrechtsnachfolger), the operator/owner/person exercising factual control over the land (Inhaber der tatsächlichen Gewalt, e.g. a lessee), and any former owner, provided that he transferred the property after 1 March 1999 and knew or ought to have known of the existing contamination.

A hierarchy or ‘class’ system of responsible persons does not exist in German soil protection law. Rather, the Soil Protection Act assumes that all responsible persons are, in principle, of equal status. This means that the polluter himself is not necessarily primarily liable. For example, if it is difficult to determine the identity of the polluter, or if he is financially incapable of carrying out remediation, the authority may charge the property owner with remediation. In turn, the property owner may then have a compensation claim against the polluter under section 24(2) of the Soil Protection Act.

The competent authority has broad discretion to decide which responsible party it charges with investigation or remediation measures or the costs thereof. In addition, the authority may recover the costs of the measures it has taken in order to avert environmental damage. When recovering such costs, the authorities may select whom to hold liable on the basis of their financial resources.

Especially in complex investigations and remediation issues, it can be instrumental to enter into a contract with the competent authority under public law (öffentlich-rechtlicher Vertrag). Such a cooperative contractual framework offers a higher degree of planning and legal certainty. Well-negotiated contracts also have considerable cost benefits. Due to the legally binding nature of such contracts, the authority cannot later demand additional measures from the liable party beyond those stipulated in the contract, unless of course previously unknown contamination outside the scope of the agreement is discovered.

If there is sufficient reason to suspect that a site is contaminated, the authorities may order the person/entity liable under the Soil Protection Act to carry out investigations to assess the relevant hazards (Gefährdungsabschätzung). These investigations may include the duty to commission experts and investigative bodies.

If a site is contaminated, the authority may than require all potentially responsible parties to carry out monitoring and investigation, especially soil and water investigations, and to install and operate measuring stations. The authority may also require such measures even after clean-up has been completed. Moreover, it may order the responsible parties to conduct an investigation (Sanierungsuntersuchung) or to submit a remediation plan (Sanierungsplan).

Under the Immission Control Act, if an industrial activity involves the use of hazardous substances, an operator is under a general obligation to prepare and submit to the competent authority a baseline report, before starting that activity for the first time.

According to the soil protection laws of various federal states, contamination and signs of contamination must be reported to the authorities by the responsible parties. For instance, section 2(1) of the State Soil Protection Act of North Rhine-Westphalia imposes a reporting obligation on owners, polluters, and universal legal successors (Gesamtrechtsnachfolger), who have to expeditiously notify the competent public authority of any indications regarding potential contamination or adverse soil alterations. Depending on the specific case, the disclosure obligation may be limited by the privilege against self-incrimination. However, operators must take into account that non-disclosure could result in an administrative fine.

Where a person or entity is required to carry out site investigations or remediation measures, owners of the affected property, as well as other affected authorised users and affected neighbours, have to be informed about the intended measures. The same duty applies to parties who are required to submit a remediation plan. According to the Environmental Damages Act, any existing environmental damage within the meaning of the Act or an imminent danger that such damage will occur (unmittelbare Gefahr eines Umweltschadens) must be notified by the polluter to the competent authorities.

A property owner whose land is contaminated, but who did not cause the contamination, and who is obliged by the competent authorities to carry out remediation measures, has a right to compensation against other obligated parties (if existing). In cases involving several responsible parties, the Soil Protection Act provides for a compensation claim between the parties under section 24(2) of the Soil Protection Act, irrespective of their being held accountable by the authorities.

Generally, claims for compensation become time-barred after three years. If the remediation measures were carried out by the authority, the three-year period begins once the authority collects the costs of that remediation; if by a private party, the three-year period starts once the claimant becomes aware of the other party’s responsibility. Regardless of such knowledge, claims become time-barred 30 years after the remediation measures were completed.

Liability risks should not be underestimated, in particular as there appears to be an increasing willingness to test cases in court. The statutory claim for compensation pursuant to section 24(2) of the Soil Protection Act can be excluded by contract. Such exclusion must be stipulated by explicit contractual terms and the exclusion is valid exclusively between the contracting parties and not in relation to future purchasers. From a transactional perspective, this means that a vendor must contractually oblige the purchaser to pass on the exclusion of the statutory claim against the vendor to any onward purchasers and subsequent users in order to safeguard against claims by future purchasers or users based on section 24(2) of the Soil Protection Act.

The Waste Management Act (Kreislaufwirtschaftsgesetz) implements the European Waste Framework Directive 2008/98/EC into German legislation. It defines waste as substances or objects that the holder disposes of, intends to dispose of, or is required to dispose of. A number of ordinances, such as the List of Wastes Ordinance (Abfallverzeichnisverordnung), complement the Act’s provisions. Under the Waste Management Act, waste is categorised as being either hazardous or non-hazardous. The scope of registration duties pertaining to waste handling depends on the type of waste, as well as the type of handling.

In December 2019, the European Commission published initial details of the EU Green Deal in a Communication. The Communication describes various measures that the Commission is seeking to achieve in the area of waste management. These measures include the launch of a new Environmental Services Action Plan in March 2020, including measures to avoid packaging waste and the development of an EU model for separate waste collection.

Pursuant to section 22 of the Waste Management Act, the parties responsible for waste may commission a third party to dispose the waste. However, this does not absolve them of their responsibility to fulfil their obligations in this regard. In fact, the commissioning parties can incur criminal and civil liability if the waste has not been disposed of properly by the third party and if they have neglected their responsibility to select the third party with due care. Case law has set strict standards in this regard.

The Packaging Act (Verpackungsgesetz) obliges manufacturers and distributors to take back returned packaging free of charge and to have it recycled in an environmentally friendly way. Under the Packaging Ordinance, packaging manufacturers and distributors are obliged to participate financially in a waste disposal scheme, which must guarantee regular collection from private consumers. At present, the most widespread scheme is the so-called dual system (Duales System Deutschland).

With regard to vehicles, the End-of-Life Vehicles Ordinance (Altfahrzeug-Verordnung) obliges manufacturers or importers to accept all returned vehicles which have been licensed in the EU, free of charge and to ensure their proper recycling.

Additionally, consumers can return electronic waste as well as batteries/accumulators at collection points free of charge under the Battery Act (Batteriegesetz) and the Electrical and Electronic Equipment Act (Elektro- und Elektronikgerätegesetz), respectively. Producers, importers, and (under certain circumstances) retailers must take back, recycle or discard such waste properly; to this end, EU Directive 2012/19/19 (WEEE Directive) and the Electrical and Electronic Equipment Act set targets for collection, recycling, and recovery. Producers must register before placing electrical equipment or batteries on the market.

Under German law, there is no general duty on property owners or occupiers to conduct an asbestos survey or to produce a register of asbestos. Such registration may, however, be required by the authorities on a case-by-case basis as a precautionary measure. There is also no general obligation to remove asbestos contained in buildings or individual building parts. The authority has the power to issue all orders deemed necessary to protect human health. In addition, the responsible party can incur civil liability for personal injuries based on its duty to protect the public (Verkehrssicherungspflichten).

The product regulation laws comprise a wealth of provisions, that address either the substances (chemicals) of the product, or the product itself. Some of the relevant substance provisions applicable in Germany are: Regulation 1907/2006/EC concerning the registration, evaluation, authorisation, and restriction of chemicals (REACH Regulation); Regulation 1272/2008/EC on the classification, labelling, and packaging of substances and mixtures (CLP Regulation); Regulation 850/2004/EC on persistent organic pollutants (POP Regulation).

Some of the relevant product/waste provisions applicable in Germany are: the Ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment (Elektro- und Elektronikgeräte-Stoff-Verordnung); the End-of-Life-Vehicles Ordinance (Altfahrzeug-Verordnung); the Packaging Act; and the Battery Act.

In Germany, the competent authority for REACH, CLP and biocides is the Institute for Occupational Safety and Health (Bundesanstalt für Arbeitsschutz und Arbeitsmedizin, BAuA). It is responsible for risk management and operates the national REACH-CLP-biocides helpdesk.

The German government adopted its ‘Energy Efficiency Strategy 2050’ (Energieeffizienzstrategie) in December 2019. Under this Strategy, Germany has committed to cut its primary energy consumption by 30 per cent by 2030 and by 50 per cent by 2050, relative to consumption levels in 2008. Besides promoting targeted investment in energy efficiency and setting up funding programmes to increase energy efficiency in companies, the Strategy also imposes binding obligations on large companies to conduct energy audits and establishes new standards for new appliances and newly constructed buildings.

The EU has committed to reduce greenhouse gas emissions by 40 per cent across the EU by 2030. Under this scheme, Germany is obliged to reduce its greenhouse gas emissions by 38 per cent by 2030 (compared to 2005 levels). The EU emission trading system (EU ETS) is the EU’s key instrument for reducing greenhouse gas emissions from large-scale emitters in the industry, power, and aviation sectors. Germany has been a key player in the EU ETS since 2005. Companies auction emission allowances, which they can then trade among each other as needed. The EU ETS has been revised for the period after 2020 to further improve its impact; by 2030, sectors covered by the scheme will have to cut emissions by 43 per cent (compared to 2005 levels).

Policies and laws addressing renewable energies such as wind, solar, and biomass power are intertwined with climate and energy legislation. The Renewable Energy Directive 2009/28/EC sets an EU-wide renewable energy target of 20 per cent share of total energy consumption by 2020; Germany’s individual contribution to this target is 18 per cent by 2020. The new Renewable Energy Directive 2018/2001/EU (RED II) will have to be implemented by 30 June 2021. It sets a new binding target of a 32 per cent share of total energy consumption across the EU by 2030, and stipulates Germany’s national contribution to the EU-wide target to be 30 per cent by 2030.

Beyond these EU requirements, German legislators have considerable discretion for policy-making in the context of renewables. The German government has now committed to an ambitious increase of renewables as part of its new Energy Efficiency Strategy 2050 (Energieeffizienzstrategie), which sets a binding target of 65 per cent of energy from renewable sources.

Climate protection and other sustainability aspects, commonly summarised as ESG issues, have gained in importance in the German business sector after the Paris Climate Agreement in 2015. Capital managed under ESG criteria has increased significantly over the past few years. In September 2019, the German Federal Financial Supervisory Authority (BaFin) released draft guidelines on dealing with ESG-related risks. They apply to all credit institutions, insurance companies, and capital management firms under BaFin’s supervision. The draft guidelines provide a compendium of good practice with respect to handling environmental risks, social risks, and risks arising from corporate governance.

Environmental aspects play a major part in all stages of the transaction process; they are an important aspect in the due diligence and Q&A process. Purchase agreements often include a separate clause dealing with responsibility and liability allocation in the context of environmental issues.

The extent of possible liability risks related to transactions depends on the transaction’s structure. In share deals, the SPA, however, can provide for indemnification claims or warranty clauses that provide for compensation within their scope. The buyer generally acquires the target company with all its pre-acquisition environmental liabilities. The same potential liability issues arise in mergers, i.e. if the buyer becomes the legal successor of the target. In such a scenario, the buyer may become liable under public and civil law (compensation claims) for any pre-acquisition environmental liability of the target company (or any of its legal predecessors).

In asset deals, the buyer assumes liability for pre-acquisition contamination as the new owner of these assets (especially land), whereas the selling entity target remains liable as the historic polluter. The Federal Court of Justice has ruled that the liability of the landowner is, in principle, limited to the market value of the site after the completion of remediation measures. The owner’s liability may be limited still further where the contamination was caused by a natural occurrence, by the public or by an unauthorised third party, and if he did not know about the pollution when he acquired the assets.

Due to the complexity of possible environmental risks involved, the parties should always consider any contractual provisions (e.g. an environmental indemnity or warranty clauses) as to how environmental liabilities are to be shared between them. In the absence of such an agreement, the purchaser has a statutory right to indemnification against the seller if the seller caused the soil pollution, and unless the purchaser waived the statutory indemnification claim vis-à-vis the seller.

The extent of possible liability risks related to transactions depends on the transaction’s structure. In share deals, the SPA, however, can provide for indemnification claims or warranty clauses that provide for compensation within their scope. The buyer generally acquires the target company with all its pre-acquisition environmental liabilities. The same potential liability issues arise in mergers, i.e. if the buyer becomes the legal successor of the target. In such a scenario, the buyer may become liable under public and civil law (compensation claims) for any pre-acquisition environmental liability of the target company (or any of its legal predecessors).

In asset deals, the buyer assumes liability for pre-acquisition contamination as the new owner of these assets (especially land), whereas the selling entity target remains liable as the historic polluter. The Federal Court of Justice has ruled that the liability of the landowner is, in principle, limited to the market value of the site after the completion of remediation measures. The owner’s liability may be limited still further where the contamination was caused by a natural occurrence, by the public or by an unauthorised third party, and if he did not know about the pollution when he acquired the assets.

Due to the complexity of possible environmental risks involved, the parties should always consider any contractual provisions (e.g. an environmental indemnity or warranty clauses) as to how environmental liabilities are to be shared between them. In the absence of such an agreement, the purchaser has a statutory right to indemnification against the seller if the seller caused the soil pollution, and unless the purchaser waived the statutory indemnification claim vis-à-vis the seller.

If the seller fails to inform the purchaser about any existing or suspected contamination, the purchaser may be able to claim compensation. German contract law affords the purchaser a rather strong protection. Unless expressly agreed otherwise, the seller is liable for any defect relating to the sold property, unless the buyer has been made aware of such defect. A ‘defect’ in this context includes any known dangerous contamination under the Soil Protection Act. The buyer then has the right to either rescind the contract or reduce the purchase price accordingly. If a seller fails to inform a buyer about any contamination, the buyer may also be able to claim compensation. Generally, the buyer must assert these rights within two years. Given the liability risks, due diligence related to environmental aspects is generally important and wide-spread in Germany.

Insurance protection is available for claims under public or civil law as well as for fines and criminal penalties. However, since the environmental liability laws are not consolidated and stipulate various different offences (e.g. relating to water, soil, air, waste, plants, and animal protection) across various different acts, a great variety of insurance policies would be necessary to cover specific risks. Environmental liability insurance therefore mainly plays a role with regard to strict liability under the Environmental Liability Act. The scope of the traditional strict liability insurance is mostly limited to those risks that the policy expressly and clearly describes.

The Environmental Information Act (Umweltinformationsgesetz) and corresponding acts by the states regulate public access to environmental information. This covers, for instance, data on air and water quality or on environmental impacts (e.g. noise, energy, radiation, and waste). Any environmental information recorded by federal authorities falls within the scope of the Act. Nonetheless, public registers do exist in certain areas, such as the register of contaminated sites (Altlastenkataster). Under the Environmental Information Act, all federal authorities are obliged to disclose environmental information to all citizens. Information within the scope of the Act includes reports on environmental protection measures and on the implementation of environmental legislation.

Applicants wishing to receive such information need to be able to describe it to the competent authority in a sufficiently precise way; notably, there is no need to prove a legal interest. The public authority must then disclose the relevant information to the applicant within a month. In more complex or difficult cases, the time limit is two months. The authority may charge the applicant the costs related to providing access to the information.

The Environmental Information Act (Umweltinformationsgesetz) grants public access to environmental information at the federal level. Access to environment-related information at the state and municipality level falls within the legislative competence of the 16 states, which have all adopted similar legislation. Under the Environmental Information Act, both environmental authorities and other public authorities (at the federal level) which are in possession of environmental information are obliged to grant applicants access to such information. Moreover, the right to information also includes environmental information held by private law entities (e.g. companies) if they provide public services which are subject to the control of federal authorities, or if they perform public administrative functions related to the environment. There are certain restrictions on making claims under the Act. Access to environmental information may be denied in order to protect certain public and private interests, including the protection of business secrets, intellectual property rights, or personal data.

Climate change litigation

One upcoming trend in the next few years is climate change litigation. As of early 2020, there are around 1,500 such proceedings pending worldwide, about 100 of which are located in Europe. They have become a strategic tool for NGOs to set the agenda, ‘blame and shame’, and increase political pressure on governments. Claims can be directed either against the state or against individual companies. Climate litigation usually aims to oblige the state to accelerate or tighten climate protection measures. Regarding claims against companies, the claimant often demands compensation or cost sharing for protective measures. Additionally, any enforcement to change business areas of the company could be a motivation for climate litigation. However, the legislator and the government have to have considerable leeway with regard to the implementation of climate protection measures, and the courts will review them only if there has been a clear and obvious legal failure (Evidenzkontrolle). Constitutional law assigns the decision and implementation of effective climate protection to the legislature, not to the courts (due to the principle of democracy). Climate change litigations are therefore very controversial. In addition, German law requires the claimant in general to prove the possibility that he might be personally affected by the challenged measure. Thus, the admissibility and the justification of climate change litigations are highly problematic.

Climate Protection Programme and Climate Protection Act

In October 2019, the German government adopted its ‘Climate Protection Programme 2030’ (Klimaschutzprogramm 2030), which sets out the strategy for reaching the German greenhouse gas emission reduction targets for 2030. The first key component of the Programme is the new, legally binding Climate Protection Act (Klimaschutzgesetz), which commits Germany to cutting 55 per cent of greenhouse gas emissions by 2030 (compared to 1990 levels). The Act also sets specific individual targets for the energy, industry, transport, building, agriculture, and waste sectors. It rests upon the Paris Agreement target to limit global warming to well below 2°C and possibly to 1.5°C and on Germany’s commitment at the 2019 UN Climate Action Summit in New York to pursue the long-term target of greenhouse gas neutrality by 2050.

The Climate Protection Programme’s second key component is a carbon pricing mechanism for the transport and heat sectors, which will complement the EU ETS. Starting in 2021, allowances for emitters will be auctioned on a trading platform at a fixed price, which will gradually increase every year. Starting in 2026, a maximum emissions cap will be introduced, which will be reduced annually.

Withdraw from nuclear and lignite coal energy

Germany also continues to withdraw from nuclear and lignite coal energy and, in parallel, to increase the amount of renewable energy. With the withdrawal from nuclear energy well underway, the German coal exit commission recommended in early 2019 to end coal-fired power generation in the country by 2038. It proposed a step-by step reduction of coal plant capacity, compensation agreements for lignite plant operators, and structural support for affected regions.

Driving bans in cities to reduce air pollution

In recent years, efforts to improve air quality in German cities have been the subject of heated public debates. An increasing number of cities have banned certain diesel cars with high emission levels from their city centres, after the Federal Administrative Court in Leipzig found such bans to be generally appropriate in a landmark ruling in February 2018. This trend is driven mainly by claims initiated by environmental associations, which illustrates that allowing environmental associations to bring action before court can have quite a profound impact on environmental law enforcement. A notable example is Stuttgart, which had to ban certain diesel cars from the entire city centre as from January 2019, after an administrative court ordered it to comply with the emission limits set out in the city’s clean air plan (Luftreinhalteplan). In contrast to bans ordered by courts, Hamburg voluntarily opted to ban certain diesel cars in certain high-traffic street sections in May 2018.

Tightened regulatory requirements for medium and large combustion plants

Operators of medium and large combustion plants have experienced increasingly tightened regulatory requirements. In June 2019, the 44th Federal Immission Control Ordinance (44. Bundes-Immissionsschutzverordnung) entered into force, thereby implementing Directive 2015/2193/EU on the limitation of emissions of certain pollutants into the air from medium combustion plants (MCP Directive). The MCP Directive fills the regulatory gap between large combustion plants (LCPs, governed by the Industrial Emissions Directive) and smaller appliances, regulated by the Ecodesign Directive. Furthermore, the recently updated Best Available Techniques Reference Documents (BREFs) require Member States to apply tighter emission limits for sulphur dioxide (SO²), nitrogen oxides (NOx), mercury, and particulate matter, to all existing LCPs by 2021.