German Federal Constitutional Court renders landmark decision on climate actions

On December 2019, the German legislator passed the Federal Climate Change Act. The goal was to implement the “Paris Agreement” on limiting global warming to 2°C or preferably 1.5°C compared to the pre-industrial global temperature. The Act contains a plan to reduce greenhouse gas emissions in Germany until 2030 to reach greenhouse gas neutrality by 2050. To do so, the Act provides for a reduction of greenhouse gases before 2030 by 55% compared to 1990. Reduction targets are set for each economic sector, resulting in yearly emission budgets. However, the Act does not contain a plan for the time after 2030. Instead, a decision on how greenhouse gas emission could be reduced after 2030 is postponed to 2025. Once the Act came into force, Climate activists claimed it insufficient to mitigate climate change and leave future generations to deal with the consequences. They put their criticism into action and filed several constitutional claims in the German Federal Constitutional Court (FCC) in Karlsruhe. Claims of this kind argue that a particular provision of a legislative act is incompatible with the German constitution, violating the claimants’ fundamental rights. If the FCC finds this to be the case, it has the power to declare the given legislative act to be partially or entirely void.

Firstly, the court held that Art. 20a of the German constitution (Grundgesetz – GG) obliges the state to engage in climate action and specifically abide by the Paris Agreement. Consequently, the allowed emission of greenhouse gases is limited to a specific gas tonnage per year, defined by scientific calculations. It is the first time that the FCC interpreted Art. 20a GG as an obligation to climate action according to the Paris Agreement. However, the court made clear that the state cannot engage in climate action at any cost. Yet, when balancing engagement in climate action and other constitutional rights, climate action gains more and more weight as climate change advances. The court held that the legislator had not failed to fulfil this newly defined obligation by passing the Climate Change Act. Insofar the Climate Change Act was not found to be unconstitutional.

Secondly, the reason why this decision is nothing less than a landmark decision is how the court decided on the violation of the claimants’ fundamental rights. Claimants in this particular case mainly were young individuals. They argued that the fewer emissions are reduced now, the more and the faster emission has to be reduced in the future, leading to an unjustified violation of their fundamental rights of freedom. The FCC upheld this argument and declared § 3 (I) and § 4 (6) of the Act -containing the goal to reduce emissions before 2030 by 55% and to install a new plan in 2025- to be null and void. According to the FCC, these particular provisions contain an “interference-like effect” and hence violate the claimant’s fundamental rights as “intertemporal guarantees of freedom. The emission reduction by only 55% would irreversibly use most of the emission budget before 2030. As the Climate Change Act does not contain a plan for reducing emissions after 2030, the claimants are at a high risk of bearing far-reaching restrictions in all parts of their lives due to the need for fast and heavy emission reduction after 2030. The FCC pointed out that the claimants’ young age gave weight to their argument since they will likely be impacted by emission reduction in the future and hence by the irreversible consequences of the Climate Change Act. The FCC held that the constitutional principle of proportionality urges the legislator to implement climate action so that emission reduction and the resulting restrictions are distributed equally over the years and decades to come. In light of this, the court concluded that the current Climate Change Act does not comply with this principle insofar as it provides for an emission reduction of only 55% by 2030 and no reduction plan afterwards.

The FCC has, for the first time, defined  Art. 20a GG as an obligation to engage in climate actions, and that young people’s fundamental rights may be violated by climate actions that bear disproportionally higher restrictions in the future. This decision is highly welcomed by climate activists, politicians and many Germans alike. As Svenja Schulze, the German Minister for Environment, stated: “This decision clearly strengthens climate action”. The FCC grants the legislator time to modify the Climate Change Act until the end of next year. With federal elections coming up in the autumn of 2021, it will be interesting to see whether the current government can react swiftly and initiate the legislative process or whether the new government will have to deal with it.

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