Given the deregulatory environment in the U.S. and the scaling back of sustainability laws globally, many have turned to litigation to pursue climate goals. However, climate litigation has its limits, and a recent decision from Germany’s federal court of justice shows where the court’s recourse ends. An environmental NGO sought an injunction barring BMW and Mercedes-Benz from selling passenger cars with internal combustion engines after 2030. The court dismissed this case, believing that such prescriptive measures are left to the legislature to decide. A recent Linklaters memo on the litigation states:
“Turning to the question of responsibility, the BGH concluded that even if restrictive climate laws were enacted in the future, the resulting burden on the plaintiffs’ rights could not be laid at the defendants’ door. The court pointed to the EU Passenger Car Emissions Regulation, which establishes a detailed, climate-goal-oriented regime governing precisely the activity at issue – the placing of vehicles on the market. As long as the defendants operate within the boundaries of this framework and meet all applicable legal requirements, no additional civil-law duty of care arises. More broadly, the BGH stressed that the task of weighing climate protection against the full spectrum of competing societal, economic and political interests belongs to the democratic legislator, not to the judiciary.”
Litigation is commonly a tool for compensating injured parties, not preventing future harm. This makes it particularly good for recovering damages after the fact, but less effective at stopping it in the first place. This is why much U.S. climate litigation is based on tort law. Plaintiffs can seek to recover for harms caused by those who contributed to them. Even though the German system differs substantially from the U.S., the principle is the same. Litigation is a great tool for ensuring countries and companies abide by policy. However, it is ultimately the legislatures that set such policy.
Our members can learn more about climate litigation here.
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