German Court Rules Against Climate Law: Postponing Action is Unconstitutional

Laima Eicke

Research Associate, Institute for Advance Sustainability Studies (IASS)

Laima Eicke is reasearch associate at the Institute for Advance Sustainability Studies (IASS) and works at the ISIGET project on strategies for a global energy transition, its systemic impacts and special vulnerabilities of countries of the global south. Before joining IASS, Laima Eicke worked with international partnerships supporting countries with the implementation of the Paris Agreement at GIZ. Furthermore, Laima Eicke worked for different research institutes, federal ministries, NGOs and consultancies. Laima Eicke holds a Masters Degree in Socio-Ecological Economics and Policy from the Vienna University of Business and Economics. Beforehands, she studied international relations and Latin American studies in Dresden, Buenos Aires and Lisbon.

Silvia Weko

Research Associate, Institute for Advance Sustainability Studies (IASS)

Silvia Weko is research associate for the project Investigating the Systemic Impacts of the Global Energy Transition (ISIGET) at the Institute for Advance Sustainability Studies (IASS). She holds a Master's degree in Sociology from the Freie Universität Berlin, and a bachelor's degree in International Studies from Juniata College.

Freedom depends on climate policy – and action is needed now.

Postponing climate action into the distant future would imply even harsher restrictions on the freedom to eventually bring down emissions to net zero. Based on this argument, the German constitutional court declared parts of Germany’s climate laws unconstitutional. In a landmark judgment, the court is requiring the government to take on more ambitious climate policies and to set a clear pathway for reaching net zero emissions.

The current law, which the courts have determined is “incompatible with fundamental rights,” came into force after intense negotiations in December 2020 and established legally binding emissions reductions. These were roundly criticized at the time as too lax by the German Green party, as well as environmental organizations and young activists who brought the lawsuit to the constitutional court.

Now, the government has been forced by the court ruling to react: within a week’s time, it announced a higher climate target for 2030 (65 percent emission reductions instead of 55 percent), a new target year for climate neutrality (2045, five years earlier than previously planned) and intermediate targets. The exact shape that the new targets will take is not yet decided, but first drafts suggest that the energy sector is where the deepest cuts in emissions will occur, although industry might also have to emit around 15 percent less than previously envisioned.

The government’s quick reaction might have been further fostered by external pressure from the European Union, which raised its climate targets for 2030 a month ago. The country’s coalition parties, the conservative Christian Democratic Union (CDU) and the Social Democrats (SPD), are also facing internal pressure, as the German Green Party’s election campaign gained traction and overtook the government’s parties in polls for the parliamentary elections in September 2021. While the CDU and SPD may aim to steal the Green Party’s thunder by setting higher emission targets over the summer, their hopes that this topic will then disappear from the agenda may be disappointed. Once the targets are set, the debates will shift rather than disappear.

The court’s decision once more showed that it won’t be possible for politicians to avoid or postpone debates on the energy transition.

As the question of implementation comes center stage, the quest for the best policies to reach climate neutrality by 2045 will be open for suggestions from different parties. The court’s decision once more showed that it won’t be possible for politicians to avoid or postpone debates on the transition, and that this can easily backfire. Thus, all parties would be well advised to start thinking about serious offers to speed up the low-carbon transition which is already gaining momentum. The are different potential pathways to net zero emission, for example, market-based instruments to ensure the most cost-effective solutions vs. state regulation. Whether to focus grants and relief on major industries vs. measures to promote social justice is also an issue.

Despite these special circumstances, there is a greater trend toward climate lawsuits in Europe and beyond. Similarly, the Dutch Hague District Court ruled in 2015 that more ambitious climate policy was needed. Further, similar cases are currently pending in national courts in France, Belgium, and Italy and six Portuguese youths have even started a lawsuit against 33 European states at the European Court of Human Rights. The court accepted the complaint and required statements from the states. If the plaintiffs succeed, the court’s decision could directly oblige all governments to take additional climate actions.

Courts for future? Broader implications for climate policy

The current climate lawsuits have a real potential for strengthening climate policy. The world’s current climate pledges are insufficient to deliver on the Paris Agreement’s goal to limit global warming to 1.5°C and will instead lead to a 3°C by 2100 – with disastrous consequences. As politicians depend on re-election, they have a strong incentive to postpone climate actions rather than limit their electorates’ freedoms today. In contrast, courts can empower children to fight for their rights, even before they are able to vote, based on the principle of intergenerational equity. But, whereas claims by young citizens based on their basic and human rights have led to successes, there is still a long way to go until future generations’ rights are recognized.

A judicial recognition of not only states’ but also private actors’ duties to prevent losses and damages globally could be a further boost for international climate protection.

In addition, national courts are largely focused on the intergenerational justice issue, and the duties of states to protect it, but haven’t yet tackled issues of global justice and the duties of private actors such as fossil fuel companies. The impacts of climate change can already be felt today in many parts of the world—foremost the Global South. Nevertheless, so far civil lawsuits from people of the Global South have not been successful in their requests for compensation for damaging impacts climate change has already caused (e.g. from the German coal company RWE). A judicial recognition of not only states’ but also private actors’ duties to prevent losses and damages globally could be a further boost for international climate protection.

For now, the German constitutional court’s ruling is good news for the country’s emissions trajectory and a big win for environmentalist youth movements. In affirming that slow climate action violates the younger generations’ fundamental rights of “a future in accordance with human dignity… and an ecological minimum standard of living,” the court has set the stage for further action towards a 1.5°C pathway.