Climate Change and Fundamental Freedoms: The German Constitutional Court Orders Legislature to Rectify Climate Change Law
On March 24, 2021, the Federal Constitutional Court of Germany held certain provisions of the 2019 Federal Climate Change Act (‘KSG’) to be incompatible with their rights under the German Constitution. The complainants included farmers from Germany, two environmental NGOs, and individuals from Bangladesh and Nepal. Of note is their reliance on Article 20a which prescribes that “the state shall protect the natural foundations of life and animals by legislation… executive and judicial action.” At the outset, the Court found that German law does not recognise the standing of the two NGOs, and only found that the natural persons amongst the complainants had standing to lodge the complaint.
While the Court noted that a failure to pursue climate neutrality and not taking any domestic adaptation measures would amount to a violation of fundamental freedoms and the right to property, it found that the KSG did not violate those rights owing to the leeway granted to the legislature by the Constitution in fulfilling them.
Since the complainants from Bangladesh and Nepal only placed reliance on these rights, the Court found it unnecessary to determine whether Germany had a duty to protect the rights extraterritorially. It is regrettable that the Court refused this opportunity to consider whether the German Constitution created extraterritorial obligations to protect the life and property of residents of other countries by taking climate action. The Constitution does not expressly circumscribe the duties arising out of these rights as applicable only towards those within Germany’s jurisdiction. However, it is recalled that in an earlier climate change case, the Supreme Court of Norway held that Norway’s constitutional right to life and right to family did not extend beyond its obligations under Articles 2 and 8 of the European Convention on Human Rights (‘ECHR’), under which jurisdiction is essentially territorial. However, the Portuguese Youth case that is before the Strasbourg Court will give it the opportunity to recognise a new extra-territorial jurisdictional link corresponding to situations of transboundary environmental harms, as the Inter-American Court of Human Rights did in its 2017 advisory opinion.
The Court then made some important findings in relation to Germany’s climate change obligations arising out of Article 20a and fundamental freedoms enshrined in its constitution. First, just as the Supreme Court of the Netherlands did in the Urgenda case, the German Court recognised the concept of a ‘carbon budget.’ Here, it noted that the current levels of emissions must not be such that the future generations are left with a disproportionately small portion of Germany’s carbon budget. Second, it found that the stringency of the Germany’s current mitigation commitments must correlate to the future interference on peoples’ fundamental freedoms due to climate change (i.e. in advance of actually harmful interference). Third, it acknowledged that while conflicts are bound to arise between climate action and other constitutional interests and principles, the latter could justifiably have priority only in “narrow conditions”- for example, where fundamental rights are to be protected. Moreover, as climate change intensifies, climate action must be given greater weight in such balancing exercise. It also held that notwithstanding scientific uncertainty about the nexus between harmful effects and climate change, mere indications that serious irreversible harm is possible will suffice for a review of the State’s constitutional duties.
In light of this, the lack of provisions in the KSG detailing the expected climate action post-2030 (in the form of GHG emissions reductions) was found to be inconsistent with Article 20a and the fundamental freedoms of future generations. The Court’s order requires the legislature to rectify the KSG before December 32, 2022. The judgment deserves praise for drawing the link between fundamental human rights and climate change, and leaves the door open for challenging the amended KSG for violating fundamental freedoms if it is not sufficiently ambitious in its pre-2030 commitments.
This post forms part of the Litigating for Climate Justice: Views from the Frontlines blog series.