Waste-to-energy plants are subject to the national emissions trading scheme and must pay for the CO₂ they emit. This has now been ruled by the Berlin Administrative Court (VG) (Case Nos. 10 K 440/23 and 10 K 516/23 of 21 May 2026). In the present case, the operator of a hazardous waste incineration plant and the operator of a municipal waste incineration plant had brought legal action challenging their inclusion in the fuel emissions trading scheme. They argued that waste incineration plants were exempt from the European Emissions Trading Directive and that such taxation was contrary to the Basic Law. Furthermore, they contended that this would make waste disposal disproportionately more expensive.

The Administrative Court did not accept this line of argument. It held that the Fuel Emissions Trading Act (BEHG) applies not only to traditional fuels such as petrol or diesel, but also to waste incineration plants. Nor does the Act contravene European law. The burning of fuels in waste incineration plants falls within the scope of the EU Climate Action Regulation (Regulation (EU) 2023/857). Under this Regulation, EU Member States have committed to specific emission reduction targets, which must be implemented through national measures. These measures include, in particular, emissions trading under the BEHG. Furthermore, Member States are free to adopt additional or more far-reaching climate protection measures.

CO₂ pricing under the BEHG is a non-tax levy that serves an incentive function in the interests of environmental protection, as pollution permits are used to regulate the consumption of clean air as a scarce resource. This is in line with the climate protection objectives of the Basic Law (Article 20a GG) and the case law of the Federal Constitutional Court on limiting global warming.

„In view of the imminent harm to the fundamental rights to life and health should climate protection targets not be met, the interference with the property rights of private-sector operators of waste incineration plants resulting from the introduction of the national emissions trading scheme ultimately proves to be less serious, especially as the resulting financial burdens could be passed on to end customers“, states the court’s press release. The judgements are not yet final. An appeal may be lodged against them with the Higher Administrative Court of Berlin-Brandenburg.