What is celebrated in one part of the federal government causes stomach pains in the other part. “We kept our word. The Habeck Heating Act will be abolished,” said Economics Minister Katherina Reiche (CDU) on Tuesday evening about the new version of the so-called Building Energy Act (GEG), which will in future be called the Building Modernization Act (GMG). “In the future, all owners will have a free choice of heating system – from single-family homes in the country to apartments in the city.”

Above all, the new regulation is intended to abolish the much-criticized 65 percent quota, according to which every newly installed heating system must be powered by at least 65 percent renewable energy. How this 65 percent is achieved was left to the homeowners. But critics saw the regulation as a de facto compulsion to use heat pumps. From now on, the installation of oil and gas heating systems should again be permitted without restrictions, according to the key points of the GMG published on Tuesday.

Ten million tons on top

And that is exactly what is becoming a problem for the SPD-led Ministry of the Environment. They are currently working on the federal government’s new climate protection program. And the building sector, with its estimated 6.2 million gas heating systems and 5.1 million oil heating systems, is by far the biggest climate problem child in Germany alongside the transport sector.

According to estimates, the building sector will emit a total of 110 million tonnes more CO2 by 2030 than it is actually allowed to according to Germany’s climate targets. With the new version of the GEG, another ten million tonnes are likely to be added to this bill. The key issues paper from the Union and SPD states that the new rule will save two million tons of CO2. However, according to the Federal Government’s Expert Council on Climate Issues, the old 65 percent rule would have saved 12.2 million tons.

“Violates constitutional, European and international law”

Experts warn that the new version of the “Heating Act” will also become a legal problem here. The fact that a federal government that is already failing to meet its climate goals is deliberately digging itself deeper into the climate hole – this approach could be legally vulnerable. “The planned reform violates constitutional, European and international law,” says even the lawyer Felix Ekardt, who has already filed several “climate lawsuits” against the federal government.

The legal circles with which FOCUS online Earth spoke do not assess the situation quite so drastically. But the key points of the new law published on Wednesday are still vulnerable, it was said – in two respects.

Regression forbidden?

On the one hand, there is this Climate protection programcompliance with which is made even more difficult by the new “Heating Act”. According to a ruling by the Federal Administrative Court, the federal government is legally obliged to submit the program by the end of March, which is intended to ensure that Germany can achieve its climate goals. If it fails, the door is open to lawsuits.

And on the other hand there is this Basic Law: According to a ruling by the Federal Constitutional Court in 2021, climate protection in Germany enjoys constitutional status. A government that does too little for the climate today is unduly restricting the freedom of future generations, the ruling said.

Some lawyers derive a “ban on regression” from the Constitutional Court’s ruling: New laws and reforms must not represent a regression for climate protection. “Any weakening of the 65 percent target would be a clear step backwards in terms of climate protection and could hardly be justified constitutionally,” said a report by the Günther law firm on behalf of the environmental organization Greenpeace at the beginning of February.

“The debate has long been over”

According to information from FOCUS online Earth, several associations are already considering filing a lawsuit against the reform. “We are considering a lawsuit and have already submitted it to legal review,” says Barbara Metz, head of German Environmental Aid (DUH), when asked. The DUH also wants to take a close look at the climate protection program, said Metz. “If the federal government does not close the massive gaps, we will force them to do so in court. Climate protection is not a political offer, but a legal obligation.”

European law also sets at least limits on the freedoms that, according to the government, are to be granted in the new “Heating Act”. The debate about heating that has been going on since the time of the traffic light government is in reality “This has long since been done since the amendment to the EU Building Efficiency Directive,” wrote the Cologne lawyer Marvin Klein in November in the specialist publication “Legal Tribune Online”.

And then there is Europe

Because: According to the EU Buildings Directive, all new buildings from January 1, 2030 must be so-called “zero-emission buildings” that no longer cause any CO2 emissions at all. The installation of an oil and gas heating system would have been completed by then at the latest, even with the planned addition of “green gas”. The new law requires an admixture of ten percent green gas from 2029; a quota of 100 percent just one year later is considered virtually impossible.

The federal government also sees it this way: the new regulations initially only apply to new buildings until 2030, it is expressly stated in the key points. At least some of the promised freedoms could soon come to an end.