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Germany's climate law ruled unconstitutional: First reflections

Updated: May 11, 2021

[For Dutch version, see here]

On 29 April 2021, Germany’s Federal Constitutional Court added a monumental judgement to the groundswell of climate litigation around the world: The Bundesverfassungsgericht ruled that Germany’s current climate legislation violates the country’s constitution because it unfairly limits the rights of younger people. In the Court’s view, Germany’s limited emission reductions planned for the present leave too much of the overall mitigation effort to the next generation. The Court found that ‘... fundamental rights are violated by the fact that the emission amounts allowed until 2030 … substantially narrow the remaining options for reducing emissions after 2030, thereby jeopardising practically every type of freedom protected by fundamental rights.’

In short, the current German policy of ‘kicking the can down the road’ to the future is a violation of the constitutional rights of the youth.

This is a huge win for the principle of intergenerational justice.

The Federal Constitutional Court has issued extensive press releases in English and French, and there will be much debate on the legal details of this pathbreaking decision. Here are a few general reflections beyond the legal intricacies of German constitutional law:

First, the ruling shows that constitutional amendments to support planetary integrity and global sustainability matter. At the centre of this week’s ruling was an amendment to Germany’s constitution, article 20 lit a, stating, ‘Mindful also of its responsibility towards future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.’ This week’s judgement has shown again that such constitutional amendments and legal revisions matter and are worth pursuing as a political strategy.

Second, the case shows the power of multilateralism and international law. The key normative standard used by the Court in defining the constitutional obligations of the government is the United Nations climate convention and the Paris Agreement, especially its provision of ‘holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C’. The Court did not specify any detailed consequences or concrete policies. In the end, governments and parliaments still have to decide the details of how to implement international law such as the Paris Agreement. Yet it is clear that the existence of global norms as part of international law were central in this decision. In short, international law matters, and Germany’s government will need to take further steps in implementing the Paris climate agreement that it ratified.

Third, while the ruling concerns climate policy, it has potentially wider implications. The logic of constitutional interpretation used by the Court could be applied to various other vital concerns of earth system governance. There are no limits to legal imagination. For example, the current depletion of biodiversity could be framed as unconstitutional profligacy of today’s generations at the cost of the youth and future generations, who will grow up without the diversity of species and ecosystems that we have today.

Fourth, while the case addresses inter-generational justice, it raises possibilities for similar arguments of intra-generational justice and a globalist, pro-poor constitutional interpretation. The Court’s key argument is that the lack of stringent climate policies in the present limits the freedom of the young to live a decent life after 2030 and beyond. The Court foresees drastic measures in the future that the current youth might eventually have to bear, because their future development space is restricted by the current excessive use of the carbon budget by the present (older) generations. This argument of development space also holds for justice between the Global North and Global South – the more the rich countries continue to eat up the remaining carbon budget, the less space there is for the poor to improve their livelihood – which is a violation of their rights as well. The decision of Germany’s constitutional court might thus have much wider implications for climate justice and the broader quest for ‘planetary justice’.

Fifth, the logic in the Court’s decision gives a huge boost to those who seek to reform the system of representative democracy in ways that better account for intergenerational justice. Given that Germany’s current climate law has been ruled as being (in parts) unconstitutional because it violates the constitutional rights of the youth, the question arises whether the youth should also have a stronger structural voice in the political system, especially when decisions with long-term consequences are at stake. The Court might have given huge ammunition to those who argue for reforms, such as the introduction of Ombudspersons for future generations, youth assemblies, and stronger consultative rights for youth representatives.

Sixth, the ruling of Germany’s Federal Constitutional Court has further strengthened the global movement of litigation for the climate, for the rights of nature and for our planet. It has shown that litigation matters and that litigation can become a major force in constraining the possibilities of the ‘boomer generation’ to further delay action and let the youth and future generations sort it out. The ruling is a great boost for all those who turn to the courts to sue governments, corporations, and other irresponsible actors. In liberal democracies with a functioning rule of law, the litigation route becomes more promising every day, as outlined recently for example by Josh Gellers. This makes the quest for revisiting the entire body of law towards a new paradigm of ‘earth system law’ ever more important.

Seventh, the constitutional ruling is a slap in the face of all those distractors who argue that climate policies will never work, that change is impossible, and that we should turn our attention instead to developing technologies for a ‘Plan B’, such as ‘solar geoengineering’. The Constitutional Court has shown that change is possible. Conversely, the ruling raises important questions about the very constitutionality of speculative ‘solutions’ such as geoengineering, given that it is future generations that would have to deal with unforeseen and harmful impacts.

Last but absolutely not least, the decision of the court is a huge victory for the youth themselves and the fantastic global movement of young climate activists, from Greta Thunberg to German youth leaders, such as Luisa Neubauer. While the court confined itself to purely legal reasoning, there is little doubt that it was the youth climate movement that brought about the landslide change in mindset that in the end reached the arcane corridors of Germany’s Constitutional Court and the honourable high judges in their red robes. As a father and university teacher, I can only be immensely proud of the enormous success of the youth of the world to hold older generations accountable. At least in Germany, it is now firmly established: the current delay in effective climate policies is not only an outrage — it is a violation of the constitutional rights of the youth.


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