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Germany announced it will further restrict pollution from
sources like energy and fuel after a court found its regulations
shifted emissions reduction burdens to future generations,
violating their rights.
On 29 April, the Constitutional Court in Germany published a decision saying
that Germany's government lacks a plan for emissions reductions
after 2031, and ordered it to enact related provisions by 31
December 2022.
The court sided with the case made by five youths living on
German islands at risk of becoming uninhabitable due to sea level
rise, as well as three from heat-stricken family farms. It based
its decision on the protection for the civil liberties afforded to
future generations under Article 20a of Germany's constitution, the
Basic Law.
The petitioners found fault with the emissions levels laid out
in Germany's 2019 Federal Climate Act (Bundesklimaschutzgesetz)
that sets out sector emissions goals to help meet Germany's Paris
Agreement target of 55% emissions cuts between 1990 and 2030. That
target is higher than the EU's target of 40% for all member states,
but the EU is currently working on raising
its target to the 55% level.
After the court released its findings, Germany's government
moved "unexpectedly" quickly to update laws, E3G policy advisor
Rebekka Popp said in a statement.
On 5 May, Finance Minister Olaf Scholz and Environment Minister
Svenja Schulze announced new Federal Climate Act targets of 65%
reductions by 2030 and 88% by 2040. The targets are laid out in a
draft law that is yet to be approved by the cabinet and
parliament.
In the days that followed, Germany's government revealed revisions of the act
would advance its climate neutrality deadline from 2050 to
2045.
The act is expected to be ratified in parliament before its
summer break, while the measures delivering emissions cuts will be
defined in separate legislation after federal elections in
September, E3G said. This means the topic of how to cut emissions,
and where, is likely to be a campaign issue.
Coal in the crosshairs
Germany's government said in a 12 May statement that the energy
and industry sectors generate the highest annual emissions, making
it likely coal generators will be targeted by upcoming laws.
The energy sector is "the screw to be tightened the most" under
the Ministry of the Environment's new draft law, and emissions
could be reduced by a third by 2030, Henning Schaloske, a partner
at law firm Clyde & Co Europe, told IHS Markit.
"This, in turn, will push the previously fixed coal phase-out
date of 2038 into the background. Some experts are already citing
2030 as the date," he said.
E3G agreed coal power is likely to be targeted. "Germany's
current 2038 coal exit date and phase-out pathway will both need
tightening. It is [unclear yet] whether the coal exit law will be
changed, or whether the impact of an increased CO2 price under the
EU's Emissions Trading System will be sufficient," wrote E3G's
Popp, who noted a 2030 exit seems "inevitable."
A proposed tightening of the EU Emissions Trading System in
response to the EU's new emissions reduction target might lead to a
"possible price of €130 per ton of CO2 in 2030,"
which might be sufficient to shutter the coal plants.
Germany's change of tactics also has implications for a €4.35
billion ($5.25 billion) compensation package for operators of
phased-out coal plants. "[The government] already has in place the
governance structure and funding tools necessary to support coal
regions in their transition away from coal — even if the coal
phase-out comes earlier," said Popp.
Aviation, truck fuel likely targeted
After the court decision, Germany's government announced a plan
to expand production and use of lower-emissions power-to-liquid
(PtL) aviation fuel on 7 May.
This fuel could be made from green hydrogen and waste carbon
dioxide according to the plan, which involves German states, its
aviation and mineral oil industries, and manufacturers.
Germany already has green hydrogen production on its radar,
after its February proposal to update the existing
Federal Immission Control Act to encourage refineries to market
it.
Fuels such as PtL are not yet produced in marketable quantities
in Germany, but the Federal Ministry of Transport and Digital
Infrastructure has commissioned research to get them to commercial
scale, according to the statement.
Again, the carbon price might be the lever the government uses
to achieve its goals. "A central matter in the debate will be the
CO2 price, which was introduced nationally at the beginning of the
year at [€25/mt], which increases the price of diesel, petrol, and
gas," said Schaloske.
The developments are a further boon to Germany's green hydrogen
sector. "I was excited about the court decision imposing the
targets we were already very happy about, but they're still not
enough to protect our future generations. Because of that, we need
these increased targets imposed on sectors like mobility, heavy
transport, aviation," managing director of H2 at Swiss renewable
developer Smartenergy, Christian Pho Duc, said during a panel at
the online SolarPower Summit on 11 May.
But the costliness of green hydrogen is an issue that needs
resolving. "Now you can make the hydrogen [cost] maybe halfway
acceptable, but calculate how to transport it where it's needed,
and then it's a problem until we have the pipelines. We need to
build the pipelines now or to work on it, so that in 10-15 years,
we have them," said Pho Duc.
National commitments under fire
The trend of litigation against governments over weak climate
laws that fail to protect their citizens is gaining traction.
This was kicked off by the December 2019 decision by a Dutch
court in State of the Netherlands v Urgenda. It found the
Dutch government, by not working harder to reduce CO2 emissions,
had failed in its obligation to protect residents' "right to life"
as the country had ratified the European Convention on Human
Rights.
Citizen petitioners nevertheless seem to be winning the case law
battle. "The number of climate change-related claims against
governments is likely going to increase, and decisions such as this
one in Germany should be closely watched," wrote Schaloske in a
blog.
Germany's latest court case may influence active cases. "The
decision will have an impact on the proceedings before the European
Court of Human Rights, where several climate lawsuits are currently
pending, also against Germany," according to a memo by an attorney
on the case, Rechtsanwälte Günther Partner Roda Verheyen and her
colleague at the firm Ulrich Wollenteit.
In Germany, constitutional protections are being extended.
"Article 20a of the Basic Law, with its state objective of
protecting the natural foundations of life for future generations,
has been given teeth," wrote the attorneys.
Posted 13 May 2021 by Cristina Brooks, Senior Journalist, Climate and Sustainability