Online Commentary

April 20, 2022

The German Federal Constitutional Court’s Revolutionary Climate Ruling

National Law as a Tool for Driving Global Solutions

A year ago, Germany’s Federal Constitutional Court called on the German legislature and government to become an international role model for climate protection with the help of an ambitious national climate law. The ruling baffled some outside spectators who did not see how national law-making could drive forward global mitigation. Admittedly, not much has happened since, but the ruling highlights the importance of national law as a proactive tool – the potential of which the current German government is more likely to harness than its predecessor.

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Young climate activists demonstrate in front of Germany's Federal Consitutional Court
Young climate activists demonstrate in front of Germany’s Federal Constitutional Court
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Last month marked the first anniversary of the Federal Constitutional Court (FCC) ruling that Germany’s climate policy had been insufficient until that point. The ruling demanded that the German government adopt more ambitious domestic policies and a more active foreign policy when it came to international climate protection. For observers outside Germany, the court’s outsize role – and robust interpretation of this role – caused some irritation. A court having a say in climate foreign policy could be viewed as an obstacle to international cooperation with Germany. The one-year mark is a good point to take stock of the ruling and its effect.

Internationally, a constitutional court calling for a legislature to accelerate a domestic climate transition that would greatly affect society might seem questionable. Given how highly divisive the process of transformation is, outside observers were irked about the court deciding upon domestic climate policies that, in their view, should have been the result of a political debate. Furthermore, the court’s robust ruling might have surprised spectators abroad who still adhere to Germany’s outdated reputation for seizing the economic benefits of leading on climate transition.

But what might seem like a court overstepping its competence by acting as climate activist does, in fact, correspond with the FCC’s jurisdictional power pursuant to the Basic Law of the Federal Republic of Germany, the country’s constitution, which really could provide new drive to global climate mitigation. The last German parliament responded to the FCC ruling by raising Germany’s climate goals, obliging the country to reduce emissions by a significant 65 percent before the end of this decade. Yet emissions rose. Thus, the new federal government has no time to lose to put the renewed climate goals into action.

Why the Court? The Role of the FCC in the German Constitutional System

The FCC plays a major role in Germany’s system of checks and balances. It is the guardian of the constitution, meaning it has the jurisdictional power to review the constitutional legality of actions by Germany’s legislature, administration, and judiciary. As such, the court also decides upon the compatibility of German legislation with the constitution. For climate activists, it was therefore the natural place to contest the effectiveness of Germany’s protective measures.

In the ruling in question, the FCC was asked to decide whether the German Climate Protection Act (CPA) of 2019 complied with the constitutional requirements for climate protection. The CPA lays down national climate goals as called for in the 2015 Paris Agreement. The court was thus confronted with the question of the extent to which climate protection is required by the constitution and whether the current level of protection matches these requirements.

The FCC took the opportunity to concretize constitutional principles of climate protection. Germany’s constitution calls for the legislature and government to assert rights and freedoms for future generations. Rather than overstepping, the climate ruling constitutes a valuable contribution to long-term legal certainty at home, thereby also increasing the predictability of Germany’s climate policy from an international perspective.

What Did It Rule? Germany’s Constitution Requires Climate Protection

The notion that the German constitution obliges the state to protect the health and lives of minors and future generations against the risks of climate change lies at the heart of the FCC’s ruling. In the view of the court, a sufficient level of protection for future generations could only be guaranteed if global warming is limited as the Paris Agreement also prescribes – ideally to a global average temperature increase of 1.5°C above preindustrial levels but at least well below 2°C. Since anthropogenic greenhouse gas (GHG) emissions cause global warming, these need to be cut drastically. The court thereby confirmed a national “carbon budget” based on the results of research by the Intergovernmental Panel on Climate Change (IPCC), the United Nations body for assessing the science related to climate change.

In the eyes of the court, it is therefore crucial for the German government to introduce the necessary domestic socio-technical transformation toward climate neutrality in near term to prevent abrupt emission cuts in the middle term. With the help of regulatory legal measures, Germany’s society and economy could be obliged to gradually switch to climate-friendly technology. Rather than being confronted with the question of whether to choose a climate-friendly option or not, individual citizens would simply be required to do so, meaning that such a policy could have an appeasing effect. But because climate-friendly options are often more expensive and therefore not affordable for many people, hardship for those with lower incomes needs to be compensated by the state. That will require funding, but climate inaction will soon cost far more than just money.

Did the Court Overstretch? The Obligation for Robust Policy on an International Level

Furthermore, the FCC concluded that reaching climate neutrality within Germany would still not be sufficient to reach the goal of protecting future generations from the risks of climate change. This requires Germany to pursue and drive global action. Since Germany is responsible for “only” two percent of global emissions – still roughly twice its share of the global population – the task facing the government in marshalling a global coalition is huge. In effect, Germany’s federal government is now constitutionally obliged to make every possible effort to cut the other 98 percent of global emissions.

This means that German foreign policy needs to protect the global climate with the help of international cooperation and international agreements. The FCC points out that Germany should win the confidence of the international community to form an international alliance for climate protection by becoming a climate pioneer at the national level. In short, national climate protection and foreign climate policy are constitutionally closely linked.

This finding of the court further highlights the importance of German foreign climate policy. During its current presidency of the G7, Germany should implement the FCC’s proposal by using this powerful position to advance international efforts in climate protection within that inter-governmental political forum. Additionally, the formation of an alliance of states that is willing to increase their obligations to mitigation measures could inspire further states to join in the middle term. If German foreign policy argues the case for industrialized countries significantly contributing to the financing of climate induced loss and damages, this could support the credibility of German foreign climate policy – especially among those states already suffering disproportionately from climate effects. With the help of these foreign policy measures, Germany could provoke an important push toward further climate protection on an international level and thus fulfill the request of the court.

Law as a Proactive Tool to Fulfill Constitutional Requirements

In 2021, the year of the FCC’s ruling, Germany’s GHG emissions nevertheless increased by 4.5 percent. If it were to meet its national climate goals, emissions should have decreased by 6 percent. So far, Germany’s climate policy has failed to result in the implementation of its national climate goals. Indeed, Germany is very far away from being the climate pioneer it believes itself to be. So, how to turn the tide and protect current and future generations?

Key to inducing the necessary socio-technical transformation of Germany’s society and economy is using the law more proactively. Until now, legislation has concentrated on sketching out a national path of emission reduction, but it mostly abstained from actively obliging society and the economy to change habits and processes. A transformation to climate-friendly technology based on voluntary decisions bears few immediate political costs but has proven woefully inefficient. As the IPCC just pointed out in its latest assessment report, time is running out. Thus, Germany needs to accelerate its socio-technical transformation.

In November 2021, a new federal government took power in Berlin that captioned its coalition agreement with the slogan “daring to make more progress.” The measures taken during this legislative term will show decisively whether Germany intends to adhere to its climate goal of a 65 percent cut of emissions. Therefore, despite the current war in Ukraine, such progress must also focus on an efficient climate policy that will introduce the socio-technical transformation of Germany’s economy and society. As the ruling of the FCC clarifies to what extent climate protection is required by the constitution, it sets out a helpful guideline for the current German legislature to navigate through the challenges of managing multiple crises simultaneously.

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