Opinion: Constitutional doubts about the Building Modernization Act

The German government’s proposed Building Modernization Act, commonly referred to as the Heating Law, has sparked significant legal and political controversy following a critical assessment by the parliamentary research service. The evaluation, commissioned by the Greens, raises constitutional concerns regarding whether the new legislation adequately addresses climate protection goals without shifting emission reduction responsibilities disproportionately into the future. This development marks a pivotal moment in Germany's ongoing efforts to balance environmental policy with constitutional obligations and public expectations.

At the heart of the debate lies the planned repeal of certain provisions from the existing Building Energy Act, particularly the requirement that newly installed heating systems operate using 65 percent renewable energy. Under the new proposal, the installation of new oil and gas heating systems would remain permissible, provided they gradually incorporate increasing amounts of carbon-neutral fuels such as biomethane. Additionally, the regulation mandating that heating boilers must no longer use fossil fuels after 2045 would be abolished. These changes have drawn sharp criticism from environmental groups and legal experts who argue that they could undermine Germany’s commitment to reducing greenhouse gas emissions effectively and promptly.

The parliamentary research service’s analysis highlights concerns about the potential conflict between the proposed law and the 2021 ruling by the Federal Constitutional Court on climate change. In that landmark decision, the court emphasized that the state must take decisive steps to reduce harmful greenhouse gas emissions without placing undue burdens on future generations. The research service notes that while the court did not explicitly mention a prohibition against worsening existing climate protection measures, its rulings focused primarily on overarching targets rather than specific policies. As a result, there remains uncertainty about how the court might rule on the new legislation, but substantial doubts exist regarding its adequacy in achieving necessary emission reductions within the building sector.

Michael Kellner, a Green Party energy policy representative who requested the assessment, described the proposed law as constitutionally questionable. He warned that the Union and Social Democratic Party (SPD) factions should reconsider their positions, given the risk of embarrassment before the Federal Constitutional Court. His remarks underscore the growing unease among opposition parties and civil society organizations over the potential inadequacies of the new legislation. The Left Party has already announced plans to consider legal action against the law, citing Article 20a of the Basic Law, which mandates that the state protect natural living conditions for future generations.

The controversy surrounding the proposed law has also intensified internal discussions within the CDU. While Economics Minister Katherina Reiche has defended her approach, emphasizing the need for technological openness and homeowner autonomy, critics within her party have raised concerns about the feasibility of her proposals. Thomas Heilmann, head of the Climate Alliance within the CDU, previously criticized Reiche’s plans as requiring urgent improvements and urged the ministry to consider substantial amendments during the legislative process.

As the debate continues, the Bundestag is set to reconvene next week for further deliberations on the Building Modernization Act. A hearing featuring expert testimony is scheduled in the Economic Committee, where Minister Reiche will face scrutiny over the findings of the parliamentary research service. The outcome of these proceedings will likely shape the trajectory of the legislation and determine whether the government can address the constitutional and practical challenges highlighted by the recent assessments. With the stakes high and the implications far-reaching, the coming weeks promise to be crucial in shaping Germany’s climate policy landscape.