German court hears case of farmer suing major automaker over greenhouse gas emissions | White & Case srl

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On May 20, 2022, the Detmold Regional Court heard a climate change complaint filed by a farmer against a major German car manufacturer. Plaintiff claimed that Defendant’s production of gasoline-powered vehicles resulted in, among other things, a violation of his fundamental right to “greenhouse gas freedom”. The plaintiff demands that the defendant reduce the share of gasoline vehicles in its total production to 25% for the period 2021-2029 and completely cease the production of gasoline vehicles by 2030. The Court expressed doubts on the merits of the case. , but allowed both parties to submit new submissions. A decision is scheduled for September 9, 2022.

Context and wider implications

The applicant owns and operates an organic farm in Detmold, Germany. He basically argues that the future of his farming business is threatened by the effects of climate change, particularly droughts, heat waves and heavy rains. According to him, car manufacturers like the defendant share responsibility for these effects due to their greenhouse gas emissions. The plaintiff argues that the defendant’s business activities therefore negatively impact his property rights, his health and his right to “freedom from greenhouse gases”. The plaintiff declares that this right has been recognized by the German Federal Constitutional Court in Neubauer et al. v. Germanywhich resulted in several amendments to the German Federal Law on Climate Change (“Bundesklimaschutzgesetz“) Last year.1 According to the plaintiff, this right to freedom linked to greenhouse gases allows each individual to free themselves from the excessive burdens linked to measures to reduce greenhouse gas emissions. These emission reduction charges are the result of excessive use of the remaining global greenhouse gas budget by other individuals or companies. In other words: if the car manufacturer’s activities result in the emission of too many greenhouse gases today, the claimant may have to undergo much more drastic measures in the future to stay within the limits of the global budget. greenhouse gases. In the plaintiff’s view, these measures will limit his freedom to do certain things, such as maintaining his farming business and passing it on to his heir and traveling.

The plaintiff is represented by an environmental lawyer who focuses on climate change litigation and also represents climate activists in parallel proceedings against the same car manufacturer in the Wolfsburg Regional Court.2 She has also acted as counsel for several plaintiffs in Neubauer et al. v. Germany. Moreover, she also represents the plaintiff in the highly publicized Huaraz case, a dispute between a Peruvian farmer and a German energy company over damage caused by a melting glacier near the farmer’s hometown of Huaraz, Peru.3 The Huaraz the case is currently pending before the Higher Regional Court of Hamm, which has indicated in the past that the case of the Peruvian farmer can be founded and which will also be the court of appeal in the current case before the regional court from Detmold. It is likely that climate activists and lawyers were selected to support the plaintiff’s case due to the location of his farm in the district of Hamm in order to obtain a favorable judgment, at least in the appeal phase.4

Farmer’s demands

In essence, the plaintiff has three demands:

  • The defendant should reduce the share of gasoline vehicles in its total production to 25% for the period between 2021 and 2029;
  • Defendant is expected to completely cease production of gasoline vehicles by 2030; and
  • The defendant is expected to reduce its greenhouse gas emissions by 65% ​​by 2030 compared to its emissions in 2018.

The first reactions of the Court

The Court expressed serious doubts about the merits of the case for various reasons:
To begin with, the Court noted that Plaintiff’s request that Defendant reduce the share of gasoline-powered vehicles to 25% of all its vehicles sold between 2021 and 2029 makes no sense given that we have already reached the year 2022. .

In addition, the Court explained that the plaintiff had to specify in more detail whether he was already suffering from the effects of climate change or if he was simply threatened by them. The Court also expressed doubts about the causal link between the broadcasts of the defendant and an infringement of the rights of the plaintiff – contrary to the approach taken by the Higher Regional Court of Hamm in the case. Huaraz Case. The Court added that (i) the defendant’s emissions are not illegal in the absence of clear guidance from the government as to how long the defendant is allowed to produce gasoline-powered cars and (ii) there is no is no clear guideline for determining a remaining greenhouse gas emissions budget for the respondent.

With regard to the allegedly violated right to a freedom related to greenhouse gases, the Court explained that it doubted that such a right existed. The Court also indicated that it would be for the legislature rather than the judiciary to determine the defendant’s greenhouse gas budget. Finally, the Court noted that the provision invoked by the plaintiff, Article 1004 of the German Civil Code, only gives the plaintiff a right to compensation for damage. However, the defendant has discretion on the means to remove the damage. The Court therefore assumes that it has no jurisdiction to tell the defendant how it should reduce its emissions.

Next steps and perspectives

Plaintiff’s counsel objected to the court’s statements, while defendant’s counsel did not respond to either the court’s statements or the plaintiff’s statements. The Court then granted the Plaintiff the opportunity to respond in writing to the Court’s preliminary expression by June 30, 2022, while the Respondent will be allowed to respond on August 12, 2022. The Court’s decision (which may be either a judgment, a prosecution order with hearings or a hearing order) is scheduled for September 9, 2022.

After remaining under the radar for months, the case caught the attention of the media shortly before the hearing. This attention has been amplified by the preliminary skeptical views of the Court, which are at odds with those of the Higher Regional Court of Hamm in the Huaraz Case. And the contrast became even starker when just a week later judges from the Higher Regional Court in Hamm traveled to the Peruvian lake with experts to determine the level of damage allegedly caused by the German energy company.5

The Detmold Regional Court apparently wants to deal with this matter quickly and shows no intention of waiting for the results of the investigative act in the Huaraz Case. That said, he could always decide to schedule another hearing or gather evidence, if the claimant’s additional submissions convinced him to do so (possibly combined with information from the Huaraz case, which can be provided first-hand by plaintiff’s attorney).

In any case, developments in both cases must be closely monitored in the event of favorable decisions; Detmold Regional Court and Hamm Higher Regional Court could become hubs for climate activists against large private sector emitters.

1 GFCC, order of March 24, 2021, roll no. 1 BvR 2656/18 et al. ; see also our previous Client Alert: Dr. Markus Burianski, Dr. Federico Parise Kuhnle, “Reshaping Climate Change Law”, July 14, 2021
2 See our previous client alerts: Dr Markus Burianski, Dr Sonja Hoffmann, Dr Federico Parise Kuhnle, Christoph Zuschlag, “German Climate Activists File Climate Change Lawsuits Against Major German Car Manufacturers To Prohibit Selling Combustion Engine Cars”, September 27, 2021; Dr Markus Burianski, Dr Sonja Hoffmann, Dr Federico Parise Kuhnle, “NGOs target German companies to reduce GHG emissions”, September 10, 2021
3 Although the German energy company did not operate near Huaraz, the Peruvian farmer argued that global greenhouse gas emissions were causing climate change, causing glaciers to melt. So the farmer sued the German energy company for just 0.47% of the adaptation costs needed to contain floodwaters from melting glaciers (a percentage that would correlate to the German energy company’s contribution to global emissions). greenhouse gases). See Dr. Markus Burianski, Mark Clarke, Dr. Federico Parise Kuhnle, Gwen Wackwitz, “Climate Change Litigation in Africa: Current Status and Future Developments”, November 9, 2021.
4 “Wann das Aus für Verbrenner kommen könnte”, May 18, 2022
5 “German judges visit Peru’s glacial lake in unprecedented climate crisis trial”, May 27, 2022

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