In a judgment [in German] published at the end of April, the German Federal Constitutional Court (Bundesverfassungsgericht) in Karlsruhe ruled that the federal climate law (Klimaschutzgesetz – “KSG”) [in German], passed in 2019, was unconstitutional, as it harmed the basic rights and freedoms of future generations. The Court partially upheld [in German] the constitutional claims filed by several activists, supported by the NGOs Greenpeace and Germanwatch, against the German government and its climate law. Many of these activists are involved in the Fridays For Future movement.
THE LEGAL BACKGROUND
The KSG was passed on the back of the Paris Agreement of 2015 (in force since November 2016), in which 196 countries committed to limiting the increase in the global average temperature “to well below 2°C, and preferably to only 1.5°” above pre-industrial levels.
As a monist state, Germany is directly bound by international treaties, and the KSG was therefore intended to enable Germany to fulfil its Paris Agreement obligations in a structured way. It was also passed to meet Germany’s commitment to carbon neutrality by 2050 (§ 1 KSG). Several provisions of the KSG were particularly relevant in this case. § 3(1) creates the obligation to reduce greenhouse gas emissions by at least 55%, compared to 1990, by the target year of 2030. § 4(1), together with Annex 2, sets out the annual emissions targets for particular sectors.
The KSG is not the only piece of legislation requiring the state to protect the environment. Article 20a of the German constitution, known as the Basic Law (Grundgesetz) [in German], puts a responsibility on the state to protect the “natural foundations of life” for future generations. Other fundamental rights of the Basic Law relied upon by the claimants were articles 2(2) and 14(1), which provide for the protection of life, freedom, bodily integrity, and property. They also relied upon fundamental rights more generally with regards to the future burdens relating to emissions reductions obligations post-2030.
A NEW LINE OF ARGUMENT
The claimants argued that the legal framework introduced by the state in enacting § 3(1) and § 4(1) in conjunction with Annex 2 failed to reduce greenhouse gases at the speed that is necessary to limit the global temperature increase to 1.5ºC, or at least to well below 2ºC, compared to pre-industrial levels. The lack of provisions relating to post-2030 emission reductions, together with the relatively mild reduction burden until then, would entail excessive limitations on the constitutionally-protected freedoms of future generations being imposed in order to meet climate targets.
With regards to the claims that articles 2(2) and 14(1) of the Basic Law were violated by the state, the Court held that it could not be ascertained that the duties of protection arising from these provisions had been breached. This was because the legislator had a certain leeway in deciding how to fulfil these duties. While these might be violated, for example, by a protection strategy that did not pursue the goal of climate neutrality or that allowed climate change to run its course while focusing solely on adaptation measures, that was not the case here.
However, the Court did hold that the emission amounts allowed until 2030 under the KSG substantially narrowed the available options to reduce emissions after 2030. If most of the CO2 budget was already depleted by then, the timeframe for making the necessary societal changes to ensure climate neutrality would be shorter, and the changes, therefore, more drastic. Given that article 20a of the Basic Law makes greenhouse gas reductions mandatory, the bulk of the burden for doing so would disproportionately fall on future generations. They would have no other choice but to severely limit fundamental freedoms in order to meet these obligations. The relevant provisions of the KSG did not comply with the principle of proportionality. This principle would have required that the constitutionally necessary reduction in CO2 emissions to the point of climate neutrality be distributed fairly over time, in a manner which respects fundamental rights. The legislator had consequently not taken the required precautionary steps towards climate neutrality that respects freedom. These steps would include issuing transparent and detailed guidelines for the further reduction of greenhouse gas emissions at an early stage. The German government now has until the end of 2022 to rectify [in German] the KSG to include more detailed regulation on post-2030 emissions targets.
This landmark ruling echoes similar national climate lawsuits in other jurisdictions, often brought by a number of claimants. Among the most notable is the Urgenda case in the Netherlands, which challenged the Dutch government’s emission reduction targets for not being sufficiently ambitious. In the District Court’s judgment of 2015, it was held that the government was obliged to reduce its emissions by 25%, compared to 1990 levels, by the end of 2020, based on the tort principle of hazardous negligence in the Dutch Civil Code. After various appeals, the original judgment was upheld in the Supreme Court: this time directly on the basis of article 2 (the right to life) and article 8 (the right to respect for private and family life) of the European Convention on Human Rights.
In the wake of this success, attempts to hold national governments to account via the courts were made in various countries, from France to Mexico. These claims have had various legal bases such as national statutes, regional human rights treaties, and constitutional principles. While some attempts have been successful and others have not, it seems to be a worldwide trend that shows little sign of stopping.
A JUST FUTURE?
It is certainly not ideal that citizens feel forced to sue their own governments in order to compel concrete action on climate change, not least because there are valid arguments to be raised on the democratic legitimacy of a non-elected institution determining what are often very political questions. However, as the recent German Federal Constitutional Court’s decision clearly shows, the necessity of reducing greenhouse gas emissions to ensure the wellbeing of current and future generations, not to mention the existence of climate change itself, is increasingly being accepted as a fact. Despite such recognition being arguably long overdue (the oil industry has been aware of the damage that climate change could bring since the 60s), it can still only be regarded as a positive step, given that less time might now be spent finger-pointing and arguing over facts, and more time will be spent on concrete action.
A particularly encouraging feature of this landmark ruling is the apparent recognition by the judges in Karlsruhe that climate justice is an essential component of a transition to climate neutrality, both in terms of an equitable apportionment of responsibility between current and future generations, and between countries of the Global North and South. One can only hope that the German legislators will keep this in mind when revising the KSG.
Rhona Fecke is a law graduate from the University of Glasgow and recently completed the Diploma in Professional Legal Practice. Her interests lie primarily in the field of environment, human rights, and social justice.