The Court found that Article 20a of the Basic Law, which requires the state to ‘protect the natural foundations of life and animals’ due to its ‘responsibility towards future generations’, also imposes on it an obligation to protect the climate.
On April 29, 2021, the German Constitutional Court handed down a judgement in the case Neubauer, et al. v. Germany, which was brought by young environmental activists supported by NGOs including Fridays for Future, Greenpeace, Germany’s Friends of the Earth (BUND). The plaintiffs argued the 2019 Federal Climate Protection Act (“Bundesklimaschutzgesetz” or “KSG”) to be against the Basic Law (the German constitution), as it violated their rights enshrined therein. Parts of the KSG were struck down as incompatible with the fundamental rights of the young generation.
The contested piece of legislation was adopted as a result of the EU setting goals for itself to reduce the union’s GHG emissions by 55% by 2030 from 1990 levels and become climate-neutral by 2050. The KSG adopted the same targets. The law also formed part of Germany’s effort to meet its Paris Agreement obligations. This 2015 196-government agreement aimed to keep the rise in global average temperature to well below 2°C (3.6°F) above pre-industrial levels, and preferably to limit the increase to 1.5°C (2.7°F),
The plaintiffs based their case on several articles of the German constitution which protect the rights of citizens. They cited Article 1, which protects human dignity, Article 2, which protects the right to life and physical integrity, and Article 20a, which protects the natural foundations of life in responsibility for future generations. It was argued that by requiring insufficient short and medium term GHG reductions and allowing for the transfer of emission allocations between Germany and other EU Member States, the KSG did not take sufficient action to address the problem of climate change, thus violating these rights. The plaintiffs further claimed that the KSG’s 2030 target did not take into account Germany’s obligations under the Paris Agreement that are to be achieved by 2050. They argued that by 2030, Germany would need to reduce GHG emissions by 70% from 1990 levels to be able to meet its Paris duties.
The court found the claims made on the basis of Article 20a justified, but dismissed all others. It was ruled ‘that the provisions of the Federal Climate Change Act governing national climate targets and the allowed annual emission are incompatible with fundamental rights insofar as they lack sufficient specifications for further emission reductions from 2031 onwards.’ The judgement said that ‘in order to achieve [climate neutrality by 2050], the reductions still required after 2030 will have to be achieved more urgently and at short notice’. This was said to pose a threat of ‘serious loss of freedom’ to future generations, should Germany use up most of its permitted emissions by 2030.
It was ruled that the postponement of major emission cuts until after 2031 violated fundamental rights of the young citizens who filed the complaint. ‘Virtually any freedom is potentially affected by these future emission reduction obligations, because almost all areas of human life are still associated with the emission of greenhouse gases and are therefore threatened by drastic restrictions after 2030,’ the court said. The court, emphasising that under the KSG, future generations would have to limit their greenhouse gas emissions significantly more than the current generation, held that ‘one generation should not be allowed to consume large parts of the CO2 budget under comparatively mild reduction burdens, if this would leave a radical reduction burden to the following generations and expose their lives to comprehensive losses of freedom.’
The Court found that Article 20a of the Basic Law, which requires the state to ‘protect the natural foundations of life and animals’ due to its ‘responsibility towards future generations’, also imposes on it an obligation to protect the climate, including undertaking action towards achieving climate neutrality. Further, the Court stated that Article 20a ‘is intended to bind the political process in favour of ecological concerns, also with a view to the future generations that are particularly affected.’ Arguments that the legislature must follow a carbon budget approach to limit warming to well below 2°C and, if possible, to 1.5°C were accepted.
The ruling said the law that was found unconstitutional had to be revised by the German Parliament, the Reichstag, by 31 December 2022. Resultantly, the German ministry for environment and the ministry of finance announced they intended to amend the Climate Change Act and establish the 2030 reduction targets at 65% instead of the previous 55%. Further plans were also set out: by 2040, a reduction of 88% is to be achieved and Germany is to become climate neutral by 2045. It has not been said yet what concrete measures will be taken to meet the new targets. Possibilities include revising the carbon pricing scheme or speeding up the phase-out of coal-powered energy, scheduled for 2038. Currently, Germany’s emission levels are 40% lower than they were in 1990.
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