Sustainable Development made justiciable: The German Constitutional Court’s climate ruling on intra- and inter-generational equity

In a decision published on 29 April 2021, the German Federal Constitutional Court joined other Courts around the world in their criticism of governments for failing to take efficient measures against climate change. The Court ruled that Germany’s Climate Protection Act of December 2019 is not sufficient to meet Germany’s obligations. The principle of sustainable development lies at the heart of the judgment’s reasoning, requiring political action to take into consideration effects for current and future generations.

As a teacher of international environmental and climate law in Germany, one always had to turn to other jurisdictions and cases to present climate change litigation as a possible driver in the common struggle against climate change. First and foremost, there was of course the Urgenda case, but other Courts have followed since (see here, here, here and here). Finally, Germany has its own revolutionary judgment (Neubauer, et al. v Germany; an unofficial translation can be found here) from Germany’s Constitutional Court (the Bundesverfassungsgericht or GCC), requesting more efficient and faster climate change protection from the legislator. The GCC received applause for its timely reasoning and outcome (see here, here and here), though the reflections have become increasingly more nuanced (see here and here).

In this post, after providing some background information on the GCC’s decision, I will focus on one particular aspect, namely the Court’s ruling in its sustainability dimension: I will argue that the Court translated the concept of sustainable development into the fundamental rights context and strengthened both the intra-generational as well as the inter-generational relevance of political decision making.

The path towards the GCC’s ruling

In order to understand the magnitude of the decision, a step back is required. Only two years earlier, German Farmers had seized the Berlin Administrative Court (Verwaltungsgericht Berlin) for Germany’s failure to implement climate goals as set out in a 2014 cabinet’s decision (“Climate goals 2020”). Climate change and the lack of measures against it, the plaintiffs had argued, violated Germany’s duty to protect them from devastating effects, primarily in regard to the right to life and property. In addition to the first dimension of human rights to protect against interference by the state, the duty of the state to protect individuals’ liberties follows from the objective order of constitutional values and forms the second dimension of fundamental rights. The Berlin Court, based on well-established jurisprudence of the GCC, argued that Germany’s duty to protect its citizens leaves the state with a wide margin of discretion on how to fulfil this obligation. Only if it were to fail to undertake any measure entirely would the state be regarded as having  violated its duty to protect. As Germany had taken measures and thereby acted within its margin of appreciation, a violation of its duty to protect was not plausible and the case therefore inadmissible.

Fast forward to April 2021: in the meantime, Germany had passed the Climate Protection Act in December 2019, and a group of young adults had instituted proceedings against this Act, arguing that it insufficiently protected them from climate change. With the Climate Protection Act, Germany had committed itself to emission goals (minus 55 per cent by 2030, compared to 1990 levels, and climate neutrality by 2050) and also laid out certain measures for achieving these goals until 2030. Past 2030, however, the concrete steps for reaching these goals set for 2050 were left open and to be determined by executive orders at a later stage. While the steps taken until 2030 were within Germany’s discretion to adopt measures against climate change, the fact that the post-2030 period was left largely undetermined violated fundamental rights. The GCC thus ruled that the Climate Protection Act is unconstitutional.

In reaching this conclusion, the Court made important findings in regard to the principle of sustainable development, despite the Court’s lack of mentioning or referring to it even once.

The principle of sustainable development

The principle of sustainable development occupies an increasingly important cognition in international and national contexts. It provides for two important dimensions: on the one hand, the balancing of the social, economic and ecological spheres; and, on the other, it mandates equity for present and future generations.

Famously, the Brundtland Report developed the formula that “[s]ustainable development seeks to meet the needs and aspirations of the present without compromising the ability to meet those of the future” (Brundtland Report, para. 49). At its heart, sustainable development is a principle of responsibility, requiring taking into consideration the consequences of one’s own actions for others now as well as for all of us tomorrow. It is basically a principle for fairness in light of infinite resources and the earth’s indefinite ability to cope with harmful activities.

Without explicitly saying so, the GCC’s decision effectively applied this very reasoning by accenting Germany’s global obligations (intra-generational equity) as well as by linking today’s acts with effects and consequences, including possibilities in enjoying fundamental freedoms in the future (inter-generational equity).

The global dimension: Intra-generational equity

The intra-generational equity aims at justice and fairness among current generations, not only within one state but also across borders. Additionally to material needs, the SDGs reflect that this extends to other aspects, including the needs and aspirations of living in peace, in a healthy environment and under stable climate conditions.

Among the plaintiffs before the GCC were young adults from Nepal and Bangladesh. The Court had to consider whether their fundamental rights were violated by Germany. The GCC did not find their case to be inadmissible straight away, but rather argued that it cannot be excluded that their rights might in fact be violated. Even under the more recent ruling in the BND case, Germany’s obligations for human rights violations were only confirmed for the first dimension, namely the protection from interference by the state; the extraterritorial dimension of the duty to protect remains opaque.

In its climate ruling and with regard to an extraterritorial duty to protect, it is noteworthy that the Court acknowledged the devastating effects of climate change nationally and globally. It emphasized that more than half of the emissions are attributable to industrial states, including Germany (para. 29). Its per head emission is double as high as the global average, and with a global population share of 1,1%, Germany is responsible for 2% of global emissions (para. 30).

While not directly confirming Germany’s extraterritorial duty to protect, it still further evaluated the content of such a duty, including by stressing that the duty to protect individuals abroad might be different and, in fact, lower than the duty to protect those living in Germany (para. 181). In arguing that Germany fulfilled its duty to mitigate climate change by partaking in the global effort, by joining the Paris Agreement, but by also pointing towards Art. 9 of the Paris Agreement that obliges developed countries to financially assist developing countries, the Court ultimately sketched out Germany’s global obligations towards individuals living abroad.

When the Court finally rejected the claim from the Nepalese and Bangladeshi plaintiffs in light of the measures undertaken by Germany, it had already provided for some benchmarks in Germany’s global responsibilities. Of course, it has been criticised that this is far away from actually rendering intra-generational equity justiciable. Yet, it is a considerable step, and a step in the right direction: the Court acknowledged Germany’s responsibilities for its effects abroad, including by taking into account historical and current contributions and capacities. Had Germany not taken any measures, the Court might have confirmed a violation because the effects created abroad provide for a possible link for responsibility and an extraterritorial duty to protect.

The future dimension: Inter-generational equity

Even more remarkable is the judgment in regard to the inter-generational equity enshrined in the principle of sustainable development in its commitment and responsibility towards future generations. Our activities, acts and omissions will determine the ways, opportunities, and challenges for the generations to come.

The GCC transformed these abstract insights into a concrete constitutional and human rights reality. The wording here is so significant that it is worth quoting in full:

“According to this requirement, one generation must not be allowed to consume large portions of the CO2 budget while bearing a relatively minor share of the reduction effort if this would involve leaving subsequent generations with a drastic reduction burden and expose their lives to comprehensive losses of freedom. At some point in the future, even serious losses of freedom may be deemed proportionate and justified under constitutional law in order to prevent climate change. This is precisely what gives rise to the risk of having to accept considerable losses of freedom.”

The Court relied on Art. 20a of the Basic Law, which requires that the state is also “mindful of its responsibility towards future generations” and “shall protect the natural foundations of life and animals”. It based its argument on the remaining CO2 emission budget for Germany. If current generations spend excessive amounts of this remaining budget, little to no room for manoeuvre will be left for future generations. The Court argues that if more is not done now, drastic measures might still be found proportionate due to the overwhelming threats arising from climate change. While the reasoning was based mainly on the post 2030 phase, it thereby also effectuates implications for the time until 2030.

To put it otherwise: our acts and omissions today, the Court argues, unfold pre-effects (eingriffsähnliche Vorwirkung) for the time to come and the ability to enjoy fundamental freedoms in the future. Inter-generational equity is thus a justiciable dimension of the fundamental rights enshrined in the Basic Law and might, in fact, become increasingly relevant.

Ultimately, the Court requested a redesign of the law by the end of 2022.

Conclusion

Germany’s current coalition government presented their updated version of the Climate Change Act within days, in order to align Germany’s climate politics with the ruling of the Court. While it is more ambitious than its predecessor in setting stricter and clearer emission reduction targets, whether it suffices is a future story to be told. For now, teaching climate law in Germany has gained a strong anchor by the GCC’s ruling and the inter- and intra-generational equity dimension of sustainable development has gained justiciable ground, requiring responsible political decisions not just tomorrow but today.