Karin Matussek, Bloomberg News

BERLIN
EnergiesNet.com 05 23 2022

First it was oil giant Shell Plc, now it’s the turn of Europe’s biggest carmaker.

In the wake of a landmark Dutch ruling a year ago which ordered Shell to cut its emissions by 45% by 2030, a German organic cattle-and-grain farmer is targeting Volkswagen AG to force it to reduce its output of polluting cars to zero by that same date.

Ulf Allhoff-Cramer is one of several Germans who, with the help of environmental groups, are suing big corporations to pressure them to bring their businesses in line with ambitious climate-change targets. His case, which was heard at a court on Friday in the central German city of Detmold, is a first test for a wave of climate change-related litigation pending in German courts.

“As the second-largest car manufacturer in the world, VW really bears a huge responsibility for the global climate,” the farmer says in a YouTube video produced as part of the campaign. “Something has to change fundamentally and it’s therefore necessary to send a signal with such a lawsuit.”

Greenpeace is funding Allhoff-Cramer’s case and another suit by three plaintiffs in a Braunschweig tribunal. Deutsche Umwelthilfe is sponsoring similar litigation against BMW AG, Mercedes-Benz Group AG and oil and gas producer Wintershall DEA.

The lawsuits are drawing on a key 2021 judgment by Germany’s constitutional court, which told the government it was putting future generations at risk by delaying the bulk of planned greenhouse-gas emissions cuts until after 2030.

Volkswagen is seeking dismissal of the case, the company said in a statement, adding that it has ambitious climate-protection goals and seeks to be carbon neutral by 2050. Carbon reduction is an issue for parliaments to decide, not courts, and a German ban on combustion-engine cars would violate European Union rules, the company said.

Roda Verheyen, the Greenpeace lawyer representing Allhoff-Cramer, argues a clause in Germany’s civil code protecting owners from undue interference by others also covers the effects of global warming. To prevent her client’s land from climate change-linked drought and other damage, VW must wind down the sale of polluting cars, she says.

Manfred Pohlmeier, presiding judge in the case, said during Friday’s hearing that the court isn’t convinced of the arguments. Selling cars as such isn’t illegal, he added.

“It also seems questionable whether the Detmold Regional Court should decide how much emissions companies should still be allowed to emit,” the judge said. “This seems rather to be the task of the legislator.”

In German civil litigation, judges usually comment on the prospects for a lawsuit at such a hearing.

The three judges gave both sides more time to submit arguments and scheduled a ruling for Sept. 9.

Verheyen called the court’s remarks “sobering” but said she is convinced that the case is backed by the law and that her client will continue the battle. Activists who attended the hearing applauded her statements during the hearing and when she left the courtroom.

Alexandros Chatzinerantzis, a litigator at Linklaters in Frankfurt, says there are so many causes of climate change that trying to pin it on one car producer isn’t a legal strategy likely to succeed and also because the car drivers are the ultimate polluters.

“You can’t establish a linear causation chain from one particular CO2 emitter to changes in the climate,” which would be needed to win the case, says Chatzinerantzis. He isn’t involved in the action but is advising big energy companies battling similar issues.

But what counts as a success in climate litigation is open to debate, says Ivana Mikesic, a regulatory lawyer in Frankfurt also not involved in the disputes. In Germany, chances are fairly good that judges have a conservationist mind set and such litigation could lead to eventual changes in the law.

“The strategy, as their lawyers say themselves, isn’t targeting the brains, but the hearts of the judges,” she said. “That’s where the chances lie.”

bloomberg.com 05 20 2022