Important judgments for clean air in Germany

By Karl Stracke and Eva Lütkemeyer, UfU, Justice & Environment

Two judgments of the German Federal Administrative Court (judgments BVerwG 7 C 26.16 and BVerwG 7 C 30.17 of 27 February 2018) regarding bans of diesel vehicles in specific areas of cities are a significant step in German environmental protection and demonstrate the importance of NGOs and members of the public having access to courts.

These landmark judgments finally force authorities to take action where maximum thresholds of air pollution are exceeded. The judgments clearly state that bans of vehicles that do not meet certain criteria are lawful in general – as in some cities, they are (currently) the only effective means to meet the European air pollution emissions limits.

Despite the little disputed fact that diesel vehicles are certainly a significant contributor to air pollution, politicians both on a federal and local level have been reluctant to adopt diesel bans. Motivated by economic concerns for the car industry and car owners, politicians of most camps preferred to turn a blind eye to the effectiveness of diesel bans while the transgression of the nitrogen dioxide limits continued. The judgment by the Federal Administrative Court marks a turning point in this strategy. It compels authorities to actively take steps that are necessary for compliance with air standards.

The case originates in two local administrative courts of the cities of Stuttgart and Düsseldorf, initiated by the NGO Deutsche Umwelthilfe (DUH) with the support of ClientEarth. These cities are among those that have been exceeding the permitted levels of nitrogen dioxide for years. In cases of excess, EU law foresees the establishment of air quality plans addressing the problem in the respective zones or agglomerations. While the authorities of the said cities had established such plans, the measures contained in the plans were not sufficiently effective to meet the limits. Therefore, DUH and ClientEarth took action in order to compel the cities to introduce diesel bans as an effective means.

The judgment was preceded by doubts regarding the validity of the legal basis of prospective diesel bans or their proportionality. But those concerns appear secondary in light of the ongoing violations of mandatory EU standards. If it is necessary in order to reduce emissions to the required level, the competent authorities are obliged to consider the necessity of introducing diesel bans.

In any case, the judgment is a major success for environmental protection in Germany. It confirms the imperative nature of environmental EU standards and is a strong reminder to political bodies on both local and national levels of their obligations to comply.

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