On 2 and 3 September 2021, activists from Greenpeace, Fridays for Future and the German NGO Deutsche Umwelthilfe sent pre-action letters to three major German car manufacturers and Germany's largest oil & gas producer requesting a reduction of their greenhouse gas emissions. In case of non-compliance within certain set time limits, the petitioners threatened lawsuits. To corroborate their requests, the petitioners inter alia referred to the German Federal Constitutional Court's decision on the German Climate Change Act from 24 March 2021 and on The Hague District Court’s decision in Milieudefensie et al. v. Royal Dutch Shell from 26 May 2021.
Background and Requests
What had become foreseeable over the last few weeks and months,1 has now materialized: after the successful claim against Germany before the German Federal Constitutional Court, which ultimately led the German Parliament to amend the Climate Change Act,2 German environmental activists and NGOs now target some of Germany's key industrial players to tackle their greenhouse gas (GHG) emissions.
On 2 September 2021, Greenpeace and Fridays for Future representatives sent a cease and desist letter to Volkswagen.3 The day after, representatives of the German NGO Deutsche Umwelthilfe (DUH) sent similar letters to BMW,4 Daimler5 and Wintershall DEA6.
Essentially, the petitioners requested that Volkswagen, BMW, and Daimler commit to refrain from selling combustion engine vehicles beyond 31 December 2029 (Volkswagen) and 31 October 2030 (BMW and Daimler) respectively. Wintershall DEA, on the other hand, was asked to (i) refrain from exploring any new oil and gas fields beyond 31 December 2025 and (ii) to commit not to extract oil and gas that causes more than 0.31 Gt CO2 (oil) and 0.62 Gt CO2 (gas) emissions when combusted.7
Despite using slightly different arguments, all activists basically rely on the German Federal Constitutional Court's decision dated 24 March 2021.8 With this ground-breaking decision, the Constitutional Court had held that the then-current version of the Climate Change Act violated the fundamental freedom rights of the individual plaintiffs residing in Germany,9 because its provisions irreversibly shifted major emission reduction burdens onto periods after 2030, thereby violating the plaintiffs' fundamental freedom rights in the future. While the Court ordered the German State to impose stricter emission budgets across all German industry sectors, it did not decide about the duties of private companies or individuals to abide by those budgets.
In addition to the German Federal Constitutional Court's decision, the activists explicitly or tacitly also rely on The Hague District Court's decision in Milieudefensie et al. v. Royal Dutch Shell,10 in which the Court ordered Shell to reduce its CO₂ emissions by 45 percent by 2030 compared to 2019 levels. As in Milieudefensie, the activists based their case on a combination of tort law and rights-based claims.
The Greenpeace and Fridays for Future activists requested that Volkswagen sign a declaration of cease and desist by 29 October 2021, whereas the DUH activists set a corresponding deadline by 20 September 2021 already.
What to expect next?
BMW, Daimler and Volkswagen already objected to the activists' requests and all four cases may eventually go to court. In addition, more similar requests and lawsuits may follow against other companies in other industry sectors, especially those with heavy emissions.
As of now, the prospects of success of such lawsuits are all but certain, since the activists entered untapped legal territory under German law with their requests.
The ability of German tort law to protect a subject without an imminent harm or danger to life and health, but exposed to long-term environmental impacts is untested before German courts. Moreover, the German government, which drafted the bill for the Climate Change Act (including its amendments), denied the possibility for individuals to derive rights and claims from this Act.11 Finally, German civil procedure law does not statutorily contemplate the relief sought by some of the activists, i.e., to impose an obligation to observe a certain behavior (i.e., to reduce its emissions by a certain percentage compared to an emission level in the past, like in Milieudefensie) as the consequence of a cease and desist obligation.
(Potential) defendants should however bear in mind that recent decisions in climate change cases have shown that precedents are no longer tied to the specifics of their home jurisdictions. It is a noteworthy phenomenon of climate change-cases that courts do consider relevant decisions from foreign jurisdictions, even where the formal legal bases differ. Companies therefore should closely monitor the recent and upcoming judicial and legislative developments, even beyond their domestic systems. Climate change disputes involving private companies will certainly be on the rise in the coming months and years. Their outcome will depend on a variety of aspects: not only on the jurisprudence of domestic, foreign and international courts, but also on the developments of the domestic, EU- and international legislative framework.
1. Cf. Burianski, Hoffmann, Parise Kuhnle, "Klimaschutzklagen gegen Unternehmen bleiben künftig nicht aus", energate messenger, 2 July 2021
2. Cf. Burianski, Hoffmann, Parise Kuhnle, "The German Federal Constitutional Court on the German Climate Change Act" (2020) 32 Environmental Law & Management, 12-17.
3. Letter of Martin Kaiser (Greenpeace), Roland Hipp (Greenpeace), Clara Mayer (Fridays for Future) to Volkswagen AG dated 2 September 2021.
4. Letter of Sascha Müller-Kraenner (DUH), Jürgen Resch (DUH), Barbara Metz (Deputy Federal Executive Director, DUH) to BMW dated 3 September 2021
5. Letter of Sascha Müller-Kraenner (DUH), Jürgen Resch (DUH), Barbara Metz (Deputy Federal Executive Director, DUH) to BMW dated 3 September 2021
6. Letter of Sascha Müller-Kraenner (DUH), Jürgen Resch (DUH), Barbara Metz (Deputy Federal Executive Director, DUH) to Wintershall DEA dated 3 September 2021.
7 Calculated from 1 January 2021.
8 Cf. Burianski, Parise Kuhnle, "Reshaping Climate Change Law", Client Alert dated 14 July 2021, available at:.
9 Inter alia young climate activists, e.g., from Fridays for Future. Other plaintiffs, including NGOs and individuals living in Bangladesh and Nepal, were denied standing and claims respectively.
10 Clarke, Connellan, Kerschner, MacLennan, De Catelle, Hansen, "Milieudefensie et al v. Shell: Climate change claimants prevail again in Dutch court – this time, against corporations", Client Alert dated 28 May 2021
11 German Parliament, document no. 19/32154 dated 31 August 2021: reply of the German Government to a small inquiry of the representative Sandra Weeser, Michael Theurer, Renata Alt, other representatives and the fraction of the Free Democratic Party (document no. 19/31902), p. 2 (answer to question no. 1 a).
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