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The Federal Constitutional Court ruling on Germany’s climate protection act is historic

[Translate to en:] Staff Portrait of Lisa Göldner
Lisa Göldner, climate and energy campaigner at Greenpeace. Photo: Lucas Wahl/Greenpeace

In late April 2021, Germany’s Federal Constitutional Court issued a ruling reacting to four constitutional complaints supported, among others, by the non-governmental organizations Greenpeace, Germanwatch, Environmental Action Germany, and BUND. In the complaint supported by Greenpeace, seven young people sued for their right to a future as well as the right to physical integrity and to choose their occupation freely. They argued that the country’s Climate Protection Act and the emission reduction targets for 2030 contained therein did not sufficiently protect their rights and was therefore unconstitutional. The Federal Constitutional Court agreed with this argumentation, making the German court the second in the world after the Netherlands to oblige a country to engage in climate protection.

The first version of the German Climate Protection Act obliged the country to reduce its greenhouse gas emissions by 55 percent by 2030 compared to 1990 levels. The law also determined which sectors—energy, transport, agriculture, etc.—are allowed to emit how many emissions. In the meantime, the German government has slightly tightened up the its climate protection laws. Among other things, emissions are now to be reduced by at least 65 percent by 2030. As a result, the sectoral targets for some areas have also been tightened, e.g. for industry and the energy sector.

However, this is still still not enough, as Greenpeace campaigner Lisa Göldner explains. We spoke with her about what makes the decision so historic, why the ruling is one of the most far-reaching in the world, and what what it could mean for climate lawsuits in other countries.

The Federal Constitutional Court’s recent climate ruling has been widely hailed as historic. How does it feel to have accomplished that?

I’m completely overwhelmed by the court’s decision. I was surprised by how sweeping it is. It’s a win for the entire climate movement. Only in a society where addressing climate change is a top priority could the judges make this call.

What makes the judgment historic? What, concretely, has it achieved?

There are several ground-breaking aspects of the decision. First, the German Constitutional Court acknowledged that the climate crisis is manmade and has potentially catastrophic implications for future generations. Second, it established climate protection as a human right, meaning the judges interpreted climate change as an issue covered under Article 20a of German Basic Law: “protection of the natural foundations of life”. This has given Article 20a a considerable boost.

Third—and now we’re getting to what’s really noteworthy about this decision—the court interpreted the Basic Law as extending to future generations. According to this ruling, the current climate protection law encroaches on the civil liberties of future generations, because by 2030 the total carbon budget set for Germany by the law will be almost maxed out. As a result, the court has argued, after 2030 such drastic emissions cuts would be required that future generations would have very limited options for action.

In other words: the current generation is encroaching on the civil liberties of future generations, by allowing too many greenhouse gas emissions now, in this decade. That Germany’s highest court has acknowledged this is a real breakthrough.

Lisa Göldner is a climate and energy campaigner for Greenpeace Germany. She works on national, European, and international climate policy, and co-initiated and promoted one of the successful climate lawsuits.

That means the court, in principle, is arguing along the lines of Fridays For Future: “You are stealing our future!” Did that come as a surprise?

Protecting future generations’ civil liberties was actually the core of our complaint. We argued that climate protection shouldn’t always be postponed for later, because doing so deprives young people, like the nine plaintiffs in our constitutional complaint, of any options for future action. It’s great that the court has taken it up so far. This is what makes Germany’s decision one of the world’s most sweeping court rulings on climate protection.

But the German Constitutional Court has only criticized the Climate Protection Act’s vague plan for after 2030. It said nothing about the targets set for before 2030. Why not?

To begin with, the Constitutional Court stated that Germany has to come up with a convincing plan for slashing greenhouse gas emissions to net-zero. According to the ruling, the Climate Protection Act is insufficient because it only set a target for 2030. Germany needs to draw up a binding roadmap for reaching net-zero emissions.

Second, the court has stated that greenhouse gas neutrality must be achieved quickly, and not at the expense of future generations. Their argument draws on the greenhouse gas budget. While the court didn’t stipulate that a budget has to be set, or what levels need to be reached, it did conclude that the burden of climate protection must be distributed in a way that is fair to future generations. And this clearly implies that the 2030 targets need to be tightened. That’s because under the current climate target the total budget is virtually maxed out by 2030.

Why has the Constitutional Court made climate neutrality enforceable, but not set a concrete carbon budget for the country?

That’s right: although the decision discusses the budget calculations made by the Intergovernmental Panel on Climate Change and the German Advisory Council on the Environment (SRU), it does not specify a carbon budget. When it comes down to it, the court simply didn’t dare to go a step further—after all, it’s a highly political question: How high is the budget, anyway? And how can we divide it fairly among the states?

From your perspective, does this weaken the ruling?

I would have preferred the Constitutional Court to require the legislature to set a budget, which the climate targets could be derived from. But since it is a highly divisive political issue, it’s also totally okay, in terms of separation of powers, to leave the question of “how” up to political contestation. From my perspective, this doesn’t weaken the Constitutional Court’s decision. Sure, the courts control the legislature—but they can only say what has to be done exactly up to a certain point.

If the German government is too ambitious in setting emissions reduction targets for the period until 2030, might the Federal Constitutional Court’s current ruling serve as a precedent for the success of follow-up lawsuits? Could this potential threat also lead to a climate policy aimed at damage prevention?

First of all, the current court decision demonstrates that climate lawsuits really are effective. So far, quite a few climate complaints around the world have already been rejected by the courts. The view was often that the respective plaintiffs didn’t have the right to sue, or the courts didn’t consider themselves responsible. We were able to circumvent this hurdle thanks to the current lawsuit.

In a way, the decision builds on the Berlin Administrative Court’s ruling from 2019, which was also in response to a lawsuit filed by Greenpeace. At the time, the court already concluded: climate protection is litigable, you can dispute it in court. And the Federal Constitutional Court’s recent decision has very tangible consequences. It requires the legislature to revise the Climate Protection Act, since it ruled parts of it unconstitutional. Climate protection is not a favour, but a mission for the legislature, which—as the judges also made clear—has to be guided by science.

In addition, climate lawsuits like this one also ensure that society will keep talking about these things. It’s really impressive to see how quickly Germany’s coalition government has reacted to the court’s decision. Now we’re talking about climate protection in a completely different way—as a human right—and discussing its relation to freedom. Of course, it won’t be easy to use the ruling to enforce specific measures—in order to halt a single highway project, for example. But the German Constitutional Court’s ruling is an important stepping stone for the climate movement’s various harmonized activities and protest forms.

Does this also hold true on an international stage? To what extent will the ruling impact climate lawsuits in other countries?

The primary goal of any climate lawsuit is, of course, its immediate success in court. But it’s also always a matter of developing legislation—and that has international implications. That’s why climate lawsuits never pop up independently of one another, but are strategically coordinated. One lawsuit will take up the argument of another lawsuit. Courts will look very closely at judges’ rulings in other countries, for a frame of reference. For example, in our lawsuit before the Berlin Administrative Court, we referred directly to the successful Urgenda lawsuit in the Netherlands. The Berlin Administrative Court would have had a hard time concluding that the Netherlands’ highest court made the wrong decision. It was obvious that they as well would have to acknowledge that the climate crisis potentially violates fundamental rights.

This ruling is what enabled us to launch our constitutional complaint, since it meant that a German court had already recognized that citizens can go to court and demand more extensive climate protection, and that the consequences of the climate crisis, in principle, can violate our fundamental rights. So the Constitutional Court’s decision was only possible thanks to our previous climate lawsuit, and because there had already been so many similar rulings in other countries. In turn, the intergenerational interpretation of Basic Law can now be adopted internationally. It’s pure, fundamental-rights dogma that can be transferred to other countries where human rights are recognized. Similar lawsuits are currently pending in the Czech Republic and South Korea, for example.

If individual sectors—such as energy, industry, transportation, etc.—are forced to adopt a more ambitious path to reaching net-zero as a result of the climate law ruling, could it potentially also contribute to degrowth?

We can’t infer that directly from this court decision. But it’s obvious that we won’t be able to immediately swap out the way we live and do business for “green” alternatives. Achieving climate neutrality will require less consumption, and degrowth. For example, we need to entirely rethink our concept of mobility. We can’t simply replace all the registered combustion-engine cars on the road with e-cars. That would require vast areas of land just to produce the renewable electricity required to power our cars. So we need fewer cars on the road and more shared transportation.

The ruling is undoubtedly a victory for the climate movement. At the same time, however, its implementation will likely exacerbate social conflict if certain fundamental disparities are not addressed once and for all.

Creating a climate-neutral society will require a major restructuring of the economy. It will have consequences for the job market and each individual region. The court ruling made it clear: it is the task of government to curb the climate crisis. But upholding the welfare state is also an essential objective of the Federal Republic of Germany. That means it’s the government’s duty to curb the climate crisis and to guarantee its citizens the minimal provisions for a good life and establish social justice.

Both of these goals are valid, and it’s imperative that we not view them in competition with one another. After all, that’s precisely the task of policymakers: to shape the transformation to be both ecological and social. More often than not, however, when people argue that employees in the automotive industry, for example, can’t be expected to accept stricter climate protection measures, they don’t do it out of any serious concern for employees or the social fabric. In general, objections of this nature are an attempt to pull the brakes on environmental protection.

How can German activists take advantage of the momentum that’s been built up?

Even at the last step of the way, our current government still hasn’t managed to draft a new climate protection law that is fair and equitable to all generations. And the question of how to actually achieve the revised climate protection targets hasn’t been answered yet, either. I think now is the right time to mount pressure for a major policy change, and to fight for very concrete measures: against new highway projects, against LNG terminals, against an expansion of the Garzweiler open-cast lignite mine. Now is the time to keep fighting for concrete action.