Climate plaintiffs are putting German justice in a quandary, says a litigator in the “Climate Laboratory”

A Peruvian Bauer is suing RWEyoung US citizens the state of Montana, California is taking on the big oil companies, six young Portuguese from all over Europe: Climate protection is increasingly being decided in court. According to the United Nations, the number of climate lawsuits increased in 2022 worldwide to 2200in 2017 there were fewer than 900. “The ‘climate plaintiffs’ do this very cleverly,” praises Heiko Haller from the law firm Baker McKenzie in the “climate laboratory” of ntv.de. However, the lawyer believes that most of the lawsuits are unjustified because the companies are not doing anything illegal: “What would you say if I sued you and demanded that you no longer be allowed to drive to the office?” asks the litigator. because “it would be better for the climate if you ran”. According to Haller, the consequences can be dramatic: Affected companies such as RWE and Shell would have to exit part of their business, but not sued companies such as BP.

ntv.de: Montana, the big oil companies and RWE are being sued, but the most well-known climate lawsuits are currently probably directed against the activists of the last generation. How do you classify this development?

Heiko Haller: Action creates reaction. Recently, the lawsuit in Montana received a lot of media attention. A few years ago there was a lawsuit before the Federal Constitutional Court. The climate plaintiffs, if you can call them that, do this very skillfully, even beyond the legal realm. They create attention and place the lawsuits strategically well, for example against car manufacturers at the beginning of the International Motor Show (IAA). In addition, there are the actions of the activists. You can deal with them in terms of content – or see where boundaries are being exceeded and then assert claims in response.

The proceedings against the Last Generation are a controlled backlash?

I don’t think they are controlled; there are too many legal levels involved. It’s not just the federal government that can do something. These can also be cities, countries or companies that are fighting back. The mood is currently high, but the exciting part actually lies elsewhere.

Where, then?

There is a lot more music in lawsuits against companies, states or governments for lawyers and also companies. Because if they consider the claims against Mercedes, BMW or VW soberly from a legal point of view, there is nothing to it. The companies are not doing anything illegal. They are within the scope of applicable law, but are still used. Look at the precedents: No one would have expected defeat at Shell in the Netherlands. In the case of RWE against a Peruvian farmer, the Hamm Higher Regional Court has ordered the taking of evidence. These are actually tiny risks from a legal perspective, but if they materialize, they have dramatic effects. That’s the exciting thing.

The companies did not perceive these lawsuits as dangerous at all, but are they realizing, especially through judgments like those from the Federal Constitutional Court, that they could potentially face enormous trouble?

Yes and no. The Federal Constitutional Court’s precedent is certainly interesting because it became active in a new area. Because historically, the Basic Law is aimed at defending against state intervention. But here it was about wanting something from the state, namely in a very simplified and legally not very precise way: better climate protection. He was sued. However, this is not so easy to derive from the protective obligations of the Basic Law and in any case companies are the wrong addressee because they operate within the framework that the state has set. The legislature determines how much climate protection we receive in Germany or the EU.

Companies like RWE are surprised that a Peruvian farmer should suddenly have a legal claim against them, unlike before?

This actually hasn’t happened before. If you look at the United Nations figures, there were 2,200 climate lawsuits last year; In 2017 there were 900. That is a significant increase. I have to say, if I were RWE, I would also have been surprised by the court’s decision to take evidence.

How did this development come about? In the case of RWE, the farmer says: RWE has a certain share through coal mining and other fossil energies share of global warming to be responsible. Because of this, I can no longer grow what I would normally have grown. I would like to have this damage compensated by RWE.

This would quickly end the legal dispute, because it may be a lot of money for the farmer, but certainly not for RWE. The problem at RWE and also at Shell is omission: if I am not allowed to exceed certain emissions, I may have to give up a large part of my business. That would be fatal.

If the Peruvian farmer wins, is RWE’s entire business threatened?

Not all of it, but a large part: everything that relies on fossil fuels is affected.

As a citizen, you might think it’s great if climate-damaging activities are banned in this way. Would that be a problem for our legal system because the responsibilities are shifted from the state to companies?

Responsibility and competencies are shifted. Essentially, it’s not about the relationship between Bauer and RWE, but about legislation: Do I, as the Federal Republic of Germany, phase out coal or nuclear energy? This must be decided by legitimate bodies such as the Bundestag. The civil case is about whether RWE and Shell have to get out, but BP has not so far because the company is not being sued.

Even if a ruling were to be made that RWE would ban the coal business, could other coal companies in Germany continue?

Legally, they are allowed to do so, because the judgment only affects the parties who are part of the process. But in fact that would certainly have an impact.

Should we blame the courts for this? Is this a mistake in the German justice system?

This is not a fault in the justice system. However, the state must ensure that the questions discussed here are not decided in bilateral civil proceedings, but by the legislature. What would you say if I sued you and demanded that you no longer be allowed to drive to the office? You are allowed to do this, although there is a risk of causing an accident. It would also be better for the climate if you run. But the law allowed driving. I can’t forbid you from doing that. You see how wrong the situation is.

What consequences can be expected if courts allow legally unclean lawsuits and make such judgments?

Companies have to position themselves strategically – certainly with different motivation depending on the industry: RWE or car manufacturers are more at risk than others.

“Strategically positioning” means they hire more lawyers?

I wouldn’t go that far, but they have to think about it. I would advise companies to avoid factual discussions. They may be able to win in court, but public opinion is more important, because of course they have CO2 emissions. If you instead discuss the topic in legal terms and focus on the differences between civil law and public law, no one will listen anymore. That’s exactly what you want: no one should listen, public interest should decrease. And you want to make it clear that this is a question for the legislature.

Is that your recommendation?

Yes. I call this the Judo strategy: Dodge the attack and focus attention on the state. That’s where these questions belong.

Clara Pfeffer and Christian Herrmann spoke to Heiko Haller. The conversation has been shortened and smoothed for better clarity.