The climate verdict of the German Constitutional Court

by Felix Ekardt and Franziska Heß 

This article is reposted with permission of Social Europe: https://www.socialeurope.eu/the-climate-verdict-of-the-german-constitutional-court,

A ruling last week by the German Constitutional Court in favour of ecological NGOs has major significance—and not just for Germany.

Last Thursday, the German Constitutional Court released a groundbreaking verdict on climate change, freedom and human rights. Following the first of four adjudicated lawsuits (represented by the two authors), the court understands climate change as a twofold freedom challenge: climate change itself and climate policy can become highly relevant for human rights to freedom. And freedom rights are something to which future generations and people worldwide—not only in Germany—are entitled.

Legislators must therefore organise the path to zero emissions—which the court sees as required under constitutional and international law—in a way that is as forward-looking and freedom-friendly as possible. In doing so, each generation must do its fair share if there is to be a timely shift to zero fossil fuels—in sectors such as electricity, buildings, transport, cement, plastics and agriculture—and to greatly-reduced animal husbandry. In any event, following the ruling the Paris-agreement goal of keeping global heating within 1.5C above preindustrial times is on the way to becoming a constitutionally binding norm.

Remaining budget

The Federal Constitutional Court made it clear that legislators must not allow the entire remaining budget for greenhouse-gas emissions, as calculated by the Intergovernmental Panel on Climate Change (IPCC), to be used up in the next few years as the German government planned more or less to do. Formally, the government has been obliged by the court to define the emissions-reduction targets for the period after 2030 more precisely.

In fact, however, it will have to scrutinise its entire climate policy—not just the Climate Action Law—because otherwise Germany’s entire budget will be used up in the next few years. The federal government has always concealed the fact that its climate-protection efforts are incompatible with the German emissions budget, no matter how that is calculated.

We did not even choose a very explicit budget approach in the first of the four adjudicated lawsuits, submitted by the Solar Energy Support Association (SFV), Friends of the Earth Germany (BUND) and individual plaintiffs, which got the whole thing rolling. We did not calculate an exact budget. We even pointed out in our complaint that the IPCC’s budget indication might still be too large.

This is due not only to natural-scientific facts, regarding for instance climate sensitivity, but also legal arguments: the basis of the IPCC budget is that remaining within the 1.5C ceiling is required only with a probability of 50-67 per cent. Giving the binding status of the Paris target, this is highly unconvincing. Consequently, zero emissions are requiredwell before 2040, never mind 2050.

Of course, there is criticism of the emissions-budget approach of the IPCC which the court used in its reasoning—as well as of the belief that the next generation in particular will be burdened more than the current one, because climate protection is possibly becoming cheaper and easier. The latter has been the position of the United States government since the presidency of George W Bush—at least up to January 2021. But it is not that simple. Above all, the effects of climate change are enormously expensive in economic terms and have a devastating social effect distributionally.

The German Constitutional Court acknowledged that it is not possible to give an exact emissions budget because of the uncertainties of current knowledge. But such exactitude was not necessary for its ruling.

Full weight

What measures must be at the top of the agenda for the next German government, to be elected in the autumn? The key challenge is finally to stop acting within a purely German perspective. Germany must throw its full weight into the balance in the European Union, rather than hampering the bloc’s climate policy as it has done in the past. We don’t need a better CO2 price for Germany but on the EU level, where Germany must push the European Commission under Ursula von der Leyen.

We need zero emissions on a worldwide scale by 2035, 2030 or earlier and zero fossil fuels by then in all sectors, including agriculture, plastics and cement. This will be the crucial question for the new German government—whether it wants to play the right role at the European level and find (financial) solutions which also engage the countries of the global south.

The ruling has no direct impact on other countries, but it will certainly be received with interest because of the reputation of the Federal Constitutional Court and because it is the most far-reaching ruling in the world to date. And there can definitely be similar rulings abroad.

Indeed, the Federal Constitutional Court ruling was partly based on a comparable Dutch ruling but it is more far-reaching. The whole legal approach and these rulings are in line with the fact that the EU is already ratcheting up its climate policy of its own accord, independently of fundamental-rights lawsuits. So the German task is not to put the brakes on but to demand even more ambition.

The Court of Justice of the European Union recently rejected a similar complaint. The European Court of Human Rights (ECHR), on the other hand—an institution of the Council of Europe—has relevant lawsuits pending. And it may also be that the complainants in our first climate lawsuit, just decided in Karlsruhe, will continue to the ECHR. Although we are very pleased with the ruling, it does not actually go far enough in terms of climate protection, given the above-mentioned criticism of the IPCC budget approach.

The ruling will meantime have a huge impact on lawsuits concerning individual projects, such as when it comes to the approval of further open-cast lignite mines. The chances of a lignite company getting approval for an open-pit mine in Germany have suddenly dropped drastically.

Felix Ekardt is a lawyer, sociologist and philosopher. He is the founding head of the Research Unit Sustainability and Climate Policy based in Leipzig, as well as professor of public law and legal philosophy at Rostock University. Franziska Heß is a lawyer specialising in public law with a focus on environmental law. She is head of the law firm Baumann Rechtsanwälte based in Leipzig, Würzburg and Hanover.

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