In autumn 2021, Deutsche Umwelthilfe and Greenpeace initiated five climate protection lawsuits against the automotive groups BMW, Daimler and VW and the energy group Wintershall Dea. The aim is to oblige the corporations to significantly reduce their CO2 emissions. The model is a lawsuit against the energy company Shell in the Netherlands. As a result, Shell was sentenced in the first instance to reduce its greenhouse gas emissions by 45 percent by 2030 compared to 2019.

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On May 13, the Detmold district court was the first of the five German courts to issue a preliminary assessment. The latter considers the lawsuit filed by the farmer Ulf Allhoff-Cramer against VW, financed by Greenpeace, to be unfounded. However, the highest civil court in each case will probably only make the final decision: the Federal Court of Justice and the Hooge Council. But what is it actually about?

It is generally accepted that the rise in global average temperature by more than 1.0°C above pre-industrial levels is human-caused and must be limited. Furthermore, on March 24, 2021, the Federal Constitutional Court found that the Paris Agreement and the Basic Law oblige the Federal Republic of Germany to make its contribution to limiting global warming to well below 2° Celsius above the pre-industrial level.

The core question of the climate protection lawsuits, on the other hand, is whether certain corporations are also obliged to make their contribution to limiting climate change and who can enforce this obligation based on which rights.

The plaintiffs against VW primarily claim that VW’s CO2 emissions threaten their health and their (agricultural) property. To do this, they must prove that these CO2 emissions are at least partly responsible for heat, drought or heavy rain, and that these are threatening where the plaintiffs live. This is not easy, but with the help of so-called attribution research it cannot be ruled out either.

In addition, the plaintiffs invoke a “right to maintain their greenhouse gas-related freedom”. What that is depends on the climate decision of the Federal Constitutional Court. According to this, our constitution protects us from the fact that our CO2 budget is consumed so much today due to a lack of government regulations that the state could be forced to restrict our freedom even more tomorrow.

The basis for this decision of the Federal Constitutional Court are the calculations of the Intergovernmental Panel on Climate Change, which global CO2 budgets are available to achieve the climate protection goals of the Paris Agreement, and the calculations of the German Advisory Council on the Environment, which CO2 budget follows for Germany.

The climate protection lawsuits are now forcing the civil courts to decide whether this right to the preservation of greenhouse gas-related freedom can also be asserted against the CO2 emitters themselves. This decision per se sharpens our awareness that every CO2 emission today limits the freedom of our children tomorrow. Above all, however, the question arises as to which CO2 emissions and legal interventions the defendants are liable for.

Here one must be clear that the defendant corporations only indirectly interfere with the rights of the plaintiffs in several respects. On the one hand, it is not the CO2 emissions themselves that threaten the rights of the plaintiffs, but rather their consequences, extreme weather events or state bans. In addition, all of the defendants do not emit the vast majority of their CO2 emissions themselves. Around 98 percent of VW’s CO2 emissions are based, for example, on driving VW cars.

However, this does not exclude the liability of the defendants. According to German law, “indirect disruptors” are also liable if they violate a “duty to ensure traffic safety”. This is the case if they create a dangerous situation and do not take the necessary and reasonable precautions to prevent damage to others as far as possible.

The CO2 emissions of an individual do not create a dangerous situation, even if they sit permanently in an SUV or airplane. The same applies to most companies. That is why there is no threat of a flood of climate protection lawsuits, as the defendants like to predict. The CO2 emissions of the currently sued corporations, however, are similar to those of states – the emissions of the VW group are those of Australia. You create a dangerous situation. The lawsuits therefore make it clear what a prominent role certain corporations play in limiting climate change – if not legally, then at least factually.

A traffic safety obligation only prohibits the defendant from emitting excessive CO2. Another question in the climate protection lawsuits is therefore, where is the limit? The lawsuits refer to “reduction paths”. The German Environmental Aid relies in particular on (1) the global CO2 budget calculated by the Intergovernmental Panel on Climate Change that is still available to limit global warming to 1.7°C with a probability of 83 percent, (2) the current proportion of the transportation and oil and gas sectors in total global emissions and (3) defendants’ market share today.

Greenpeace, on the other hand, relies on the International Energy Agency’s “Net Zero by 2050 Scenario, All Electric Case”. It describes the transformation in the energy sector that is necessary to limit global warming to 1.5°C with a probability of 50 percent. Among other things, it takes into account the special importance of the transport sector for the global economy and the costs of the necessary CO2 reduction.

One success of the climate protection lawsuits is that the defendants have commented on these reduction paths and must continue to comment. Even if the plaintiffs cannot oblige the corporations. No one will be able to afford not to take a reduction path or remain silent about it.

A more political question is whether it is not primarily the task of the legislature to dictate to the defendants how much CO2 they are still allowed to emit. There is a lot to be said for this. Only the absence of such a regulation does not justify a free ticket.

The Federal Constitutional Court and the Federal Court of Justice have also decided in similar cases that the German courts must first develop one themselves where a legal regulation would be necessary but is missing. So as long as the German legislature does not specify any reduction paths, it is only logical for climate protectionists to rely on the courts to limit climate change. Because the clock is ticking.