Reparation for Climate Change: The Successes and Limits of Litigation

Part Two Litigation Strategies, Possibilities and Risks

Jannika Jahn

Chapter 6: Climate Litigation as a Regulatory Tool — Tracing Impact and Success of the German Constitutional

Court’s Climate Decision

1.Introduction

Prompting regulatory change and behavioral shifts by key actors such as political institutions or corporations is one of the main aims of climate litigation.¹ Environmental adjudication has been classified as a regulatory tool, that is a “tool for achieving regulatory ends”². Domestic climate change litigation, in particular, is a “glocal” regulatory tool, by which civil society can mobilize the courts to enforce global goals in a local setting. The landmark ruling of the German Constitutional Court (GCC or Court) on climate change from 2021 is a case in point. It was hailed for its reinforcement of climate protection through constitutional law. Looking at it now, what has its broader regulatory impact been? Would litigators call it a success in hindsight? The present chapter tackles these questions. It briefly explains the decision of the GCC as an example of rights-based climate litigation (section 2). It analyzes the reaction by the German legislator as direct regulatory impact and the broader, indirect regulatory impact of the decision by prompting and influencing further climate-related proceedings (section 3). Based on this analysis, this chapter addresses the question of what can be qualified as “success” with respect to such constitutional climate litigation and if the GCC’s climate decision can be considered a success. The chapter argues that, while regulatory impact is a component of success, success should not be reduced to regulatory impact. Instead, success should also be assessed in terms of mobilization, that is: to — S. 112 —what extent the decision empowers civil society to hold the government accountable for implementing its climate protection commitments and to use courts as fora to draw public attention to the topic. Put differently, if the litigants prompt the courts to fulfill their function as guardians of the rule of law and, in particular, if they get constitutional courts to strengthen public control over compliance with climate commitments, then they can be said to have been successful. On this basis, it is submitted that the GCC’s decision can be considered a success for the litigants. However, two future tasks remain: convincing constitutional courts to assume their function as arbiters in a “glocal” context and to define corridors for national fair shares in global efforts to mitigate climate change, as well as to intensify constitutional control for the interim results of climate protection commitments (4.).

2.The Climate Decision of the GCC

A group of plaintiffs, mostly young Germans as well as two environmental associations and people from Bangladesh and Nepal filed a constitutional complaint before the GCC.³ They considered the German Climate Act (Klimaschutzgesetz, KSG) to be insufficient to mitigate climate change. The KSG aimed to create a framework for bringing German greenhouse gas emissions (GHG)⁴ in line with the temperature goals of Article 2 Paris Agreement, national CO reduction targets committed to under European Union law⁵ and

2

the goal of climate neutrality by 2050⁶ to which the Federal Republic of Germany had committed at the United Nations Climate Action Summit in New York on 23 September 2019.⁷ To this end, the Act stipulated a reduction of GHG emissions by at least 55% by 2030 relative to 1990 levels.⁸ For the time after 2030, the legislator left it to the government to set annually decreasing emission amounts by means of ordinances.⁹ The plaintiffs argued on this basis that Germany would not be contributing sufficiently to achieve the goal of limiting global warming to 1.5°C or at least to 2°C above pre-industrial levels and of — S. 113 —climate neutrality by 2050.¹⁰ They emphasized that this would risk the crossing of tipping points¹¹ with unforeseeable adverse consequences for the climate system and millions of people across the world, particularly in the future. The minors relied in particular on their rights of life and well-being and their constitutionally enshrined liberty rights as young generations. In this regard, the case relates to scenarios 1 and 5 in which the applicants also invoke their rights of life and well-being (cf. scenario 1) and their rights as young generations (cf. scenario 5).

The GCC ruled partly in favor of the minors from Germany. It found that the existing provisions were partly unconstitutional, because the legislator had not defined the GHG reduction path for the post-2030 period.¹² Thus, the legislator did not satisfy the requirement of adopting a transparent pathway for the reduction of GHG emissions in good time. It risked irreversibly offloading major emission reduction burdens onto young and future generations. Due to a lack of evidence, the Court rejected the claim that the ecological minimum or the right to live with dignity in the future were violated by the legislator.¹³ It denied the legal standing of ecological associations (“Anwälte der Natur”), as the measures in dispute did not affect them individually.¹⁴

In its reasoning, the GCC rejected the argument that the legislator had not fulfilled its protective duties to secure the right to life, good health, and property.¹⁵ It acknowledged that German state authorities generally had a duty to protect the right to life and property from environmental hazards, including those connected to climate change.¹⁶ But it did not find that the legislator had violated these duties due to the leeway it enjoyed. Traditionally, the Court affords the legislature broad discretion in choosing how to fulfil its protective duties in order to leave enough freedom to the political process and to pay due regard to residual factual uncertainties.¹⁷ For that — S. 114 —purpose, the Court reduces the threshold of constitutional review to the question whether the state has evidently taken unsuitable or insufficient protective measures. In the present case, it did not consider these criteria to be fulfilled.¹⁸ According to the GCC, manifestly inappropriate or insufficient measures would entail not even seeking to achieve climate neutrality or merely seeking to respond to climate change with adaptation methods. Such conduct would not help stop global warming. The Court held that neither scenario was the case here. On the contrary, it emphasized that the legislator had taken climate change seriously by adopting reduction measures that were in line with the Paris Agreement.¹⁹ Further, the Court held that the absolute necessity to limit global warming to 1.5°C had not been proven and that, in fact, considerable scientific uncertainty remained in that respect.²⁰ Moreover, the Court warned against conflating the duty to protect human life and health with the duty to protect the environment. It qualified adaptation methods as valid means to reduce the risks posed by climate change to human health, even if they did not help protect the environment. Hence, the legislator was free to fulfill its protective duties by adopting adaptation methods.

However, the Court found that the KSG infringed future generations’ liberties. To arrive at this finding, the Court creatively interpreted the rights under the Basic Law as intertemporal guarantees of freedom.²¹ In short, the argument goes as follows: According to the legislator’s own specification, the duty of environmental protection enshrined in Article 20a of the Basic Law requires the legislature to adopt measures that help limit global warming to at least 2°C above the pre-industrial level. This constitutional duty means that the legislature will have to limit individual freedoms that collide with this goal. Therefore, the more lenient the KSG is today, the more stringent it will have to be in the future to achieve net-zero GHG emissions by 2050. CO2 reduction efforts will foreseeably affect the exercise of every type of freedom because virtually all aspects of human life involve greenhouse gas emissions. Hence, provisions that allow for GHG emissions in the present constitute an irreversible legal threat to future freedom. They entail an interference-like effect (eingriffsähnliche Vorwirkung) on the freedoms protected by the Basic — S. 115 —Law.²² The crux of the decision is that these interference-like effects will have to be proportionate. Therefore, the legislature is obligated to distribute the burdens connected with combatting climate change amongst society fairly over time (so-called intergenerational fairness).

The Court further recognized a special duty of care on the legislator.²³ Based on reliable scientific findings regarding climate change and the remaining CO2 budget, as reflected in IPCC estimates, it found that the legislature is obliged to take precautionary steps to seek a fair balance between the infringements of current and future freedoms caused by reduction measures, also after 2030.²⁴ Otherwise, evaluating the impairment of future freedoms from today’s perspective entails the risk that wrong assumptions about future developments might lead to wrong conclusions about the constitutionality of future infringements of basic freedoms.

By compelling the German government to implement its own Paris Agreement undertakings in a consistent manner, the GCC gave legal teeth to the selfdetermined climate commitments. It did so in the following steps. Firstly, the Court clearly stated, based on an in-depth examination of scientific evidence, that climate change is a human-CO2-driven phenomenon that risks degrading the basis of humans’ ecological subsistence. Secondly, the Court “constitutionalized” the global temperature targets under the Paris Agreement by arguing that the legislature had specified the objective of environmental protection under Article 20 Basic Law through the KSG and the temperature target set out therein. Through domestic incorporation and the Constitutional Court’s interpretation, the non-binding international targets became constitutional yardsticks for the exercise of all public authority in Germany. At the same time, the Court held that the legislature’s discretion in specifying the climate protection objectives under Article 20a Basic Law was bound by scientific evidence. Hence, if subsequent international agreements sought to weaken climate protection, Article 20a Basic Law would still require justification.²⁵ Thirdly, the Court used a carbon budget for its constitutional scrutiny. It referred to the German scientific advisory board on climate change, which had derived a national carbon budget representing Germany’s share from the global carbon budget (as estimated by the IPCC).²⁶ Fourthly, the Court relied — S. 116 —upon the concept of intertemporal fairness.²⁷ As a matter of constitutional law, future infringements of individual rights would most probably be justified by climate change-related emergencies. The endeavor to avoid these emergencies from happening in the future is thus a matter of ethics, not a logical consequence of constitutional law. It follows that the Court incorporated an ethical element of fairness and solidarity into the proportionality test.

The Court dismissed the complaints of the plaintiffs from Bangladesh and Nepal on the merits.²⁸ It found that it is conceivable in principle that the German state would be under a duty vis-à-vis the complainants living abroad to take action against impairments caused by global climate change.²⁹ However, it did not find a violation in this case.³⁰ Besides the high threshold for finding an “evident” violation of a positive obligation not having been met, the GCC held that it would be even more difficult to evaluate a violation of positive obligations with respect to people outside of German jurisdiction, as the German state would not have the authority to implement adaptation measures that contribute to safeguarding people’s health and life from negative consequences of climate change.³¹ With respect to a possible violation of individual liberties, the Court dismissed the plaintiffs’ claim, because they were not within German jurisdiction and thus not subject to the German laws that restrict individual liberties in order to reduce CO emissions.³² The decision

2

to resolve the case doctrinally on the basis of the negative dimension of individual liberties thus narrowed the legal scope for judicial review by persons outside German jurisdiction.

Notably, however, the GCC acknowledged that climate change has global distributional effects.³³ The GCC accepted that the German state is obliged to fulfill its fair share of CO2 reduction. It referred to the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC) as enshrined in the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement,³⁴ which guides the sharing of responsibility between states.³⁵ It found that the German government had to make — S. 117 —sure that the temperature target corresponds with the national CO2 budget and that the national reduction targets take due account of the remaining budget.³⁶ However, the Court did not scrutinize whether the State’s reliance upon the advisory body’s estimate of Germany’s national budget was based on a methodology which aligned with the principle of CBDR-RC. Instead it left discretion to the legislature in this regard. How this general principle translates into specific fair share is legally unclear. Different approaches have been put forth,³⁷ such as an equal-per-capita-emissions approach³⁸ and the grandfathering approach³⁹ and these yield significantly different results. Until now, no consensus has been reached.⁴⁰ In this regard, the GCC left the decision on the “fairness” of the German share as assumed under the German national budget to the legislator.⁴¹

3.Great Hope, Limited Impact?

The GCC’s climate decision was widely praised as ground-breaking in the effort to encourage the legislator to make more efforts to comply with the international climate goals. But what has been its direct regulatory effect — and its indirect regulatory impact?

After the immediate legislative amendment of the KSG in reaction to the decision, environmental non-governmental organizations (NGOs) pooled individuals to file further lawsuits before the GCC against constitutional deficiencies of the KSG and the legislator’s omission to enact regulatory instruments to implement the objectives of the KSG (a). Individuals and NGOs relied on the — S. 118 —GCC’s decision when filing lawsuits against infrastructure projects in administrative courts (b) or when demanding behavioral change of corporations in civil courts (c). When considering these cases, it becomes clear that the standard of review adopted by the GCC renders the decision’s direct regulatory effect notable, but so far limited (d).

a.Legislative Change

The political reaction to the GCC’s decision was almost curiously positive. Support for the decision came across the political spectrum. Even the political parties that formed the government and enacted the KSG welcomed the decision.⁴² The Social Democrats claimed that this decision could move climate protection in a direction that the Christian Democrats as their coalition partner had not been prepared to take. The opposition hailed the decision as a success for climate protection in Germany, although disagreements as to the regulatory approaches persisted between the Green Party, which favored regulation, and the Free Democrats, who preferred market-based instruments for climate protection. In the final months of the legislative period, the legislature passed the amendment tabled by the government, which adjusted the CO2 reduction pathway until the achievement of climate neutrality by the end of 2045, including the interim target for 2030. The government thus eliminated the gaps in its previous climate neutrality pathway, which had led the GCC to consider the law partially unconstitutional. Based on the overall assessment of the decision, the government deliberately went beyond the commitments made in the European Union’s climate law, which envisaged climate neutrality by 2050.⁴³

After the KSG was amended, environmental NGOs identified a remaining gap between the KSG’s temperature target and its emission reduction pathways. On the basis of the GCC’s decision, they filed a follow-up lawsuit against the government before the GCC. The GCC dismissed this claim as the plaintiffs had not proven this gap.⁴⁴ The plaintiffs then turned to the European Court of Human Rights (ECtHR), where the case is still pending.⁴⁵

In 2024, the government abolished the sector-specific goals of the KSG.⁴⁶ The intention behind this elimination was to allow for failures in one sector to be compensated for through the emissions reductions achieved in another.

This was a reaction to the fact that the transport sector had not achieved its sector-specific targets. In reaction to this, Fridays for Future and Greenpeace filed a new lawsuit before the GCC, called the “future lawsuit” (Zukunftsklage). A similar complaint was filed by the NGO Deutsche Umwelthilfe.⁴⁷ They all argue that the new amendments to the KSG contradict the GCC’s ruling of 2021 and that the government is in breach of the Basic Law, as interpreted by the GCC, by failing to put Germany on track to meet climate targets in the building and transport sector.

Applicants have also relied on the GCC’s decision to request the GCC to order the legislator to impose specific measures, such as a speed limit on motorways.⁴⁸ They argued that a speed limit would be a necessary means to bring the transport sector on track with the German climate targets. The GCC did not share this view.⁴⁹ It stated that, to this end, a constitutional complaint would in principle have to be directed against the entirety of the permitted emissions.⁵⁰ That is because, as a rule, only the relevant plans as a whole, and not selective actions or omissions by the state, were capable of disproportionately shifting the reduction burdens to the future. Since the applicants had not substantiated that the emissions budget allocated to the transport sector up to 2030 would exceed the national carbon budget, their claim was dismissed.

Apart from the above, two cases concerning laws on the expansion of wind energy creation have been adjudicated by the GCC. At the heart of one case was the law passed in the state of Mecklenburg-Vorpommern which provided people living near wind turbines built by private enterprises the opportunity to share in the profits from those projects. The GCC rejected the constitutional complaint by the companies against this law.⁵¹ It based its decision on the idea that such forms of public participation could improve societal acceptance which would facilitate the expansion of green energy production, thereby contributing to the reduction of CO emissions.⁵² In the second case,

2

the dispute concerned a law enacted by the state of Thuringia which prohibited the installation of wind turbines in its forests.⁵³ While the central question concerned the proper characterization of the law for the purpose of assessing — S. 120 —whether it fell within the regulatory competence of the state legislature or the German federal legislature, the case also involved the conflict between the Thuringian Forest Act and the federal law promoting the expansion of the use of wind power. The GCC resolved the conflict between laws at the federal level and the Thuringian Forest Act against the latter. It reasoned that in light of the German federal legislature’s positive obligation to contribute to climate change mitigation (under Article 20 a Basic Law), and the indispensability of the expansion of use of wind power, that the federal law could not be deemed to allow states (especially those with large forest lands) to completely exclude wind energy projects on forest land.⁵⁴ In both cases, the GCC relied on its climate decision to buttress the importance of the federal legislative objective of promoting wind energy.

b.Administrative Change

In several administrative court cases, applicants or respondents referred to the climate decision by the GCC to achieve or to oppose the intention to enforce regulatory change. In two cases, for example, the NGO Deutsche Umwelthilfe e.V. succeeded with its complaint before the Highest Administrative Court of Berlin-Brandenburg (OVG)⁵⁵ in obtaining an order requiring the government to improve the immediate measures (Sofortprogramme) and regular climate measures pursuant to §§ 8 and 9 KSG in several sectors, including the transport sector. The government had argued that the court could only scrutinize whether the government had evidently failed to comply with its obligation to provide climate protection, as otherwise the constitutional leeway granted to the government by the GCC would be impaired.⁵⁶ However, the OVG Berlin-Brandenburg stated, as per the decision of the GCC, that government action with regard to the continuous improvement of climate protection fell within its scope of review⁵⁷ and that the government, in the exercise of its discretion to adopt the instrument of “immediate measures,” would have to orient these towards the interim CO -reduction goals as well, and not merely the long-term ones.⁵⁸

2

The government has appealed against both rulings, with the exception of the part relating to land use.⁵⁹

In two cases before the Federal Administrative Court (BVerwG)⁶⁰, environmental NGOs did not succeed in convincing the court to order the administration to refrain from authorizing contentious infrastructure projects. The KSG requires authorities to consider the impact of infrastructure projects on the climate when deciding whether to authorize them. In both cases, one concerning the opening of an LNG terminal and the other concerning the extension of a highway, the administration had approved the infrastructure projects despite the foreseeable increase in CO2 emissions caused by them or, more specifically, by their use.⁶¹ In the LNG terminal case, the BVerwG held that the legislator was not constitutionally bound to strictly prohibit such gas operations, and instead, it could just as well promote CO2 mitigation by addressing the consumption of gas.⁶² In the motorway case, the BVerwG explained that the GCC climate decision did not require that in a balancing of interests, climate protection takes unconditional priority over other societal concerns.⁶³ It also recalled the GCC’s finding that the greater the risk of transgressing the temperature target of 1.5°C or the aim of climate neutrality by 2045 grows, the greater the concern for climate change mitigation becomes.⁶⁴ Hence, although the administration had to consider a project’s impact on climate change, this concern would not automatically outweigh other societal concerns.⁶⁵ On these premises, the court upheld the administrative planning decision.

c.Behavioral Shifts in Litigation Concerning Corporations

The GCC’s climate decision has not only been invoked in lawsuits against the state, it has also been relied upon in lawsuits against corporations. For instance, Greenpeace⁶⁶ filed lawsuits against Volkswagen in an attempt to have civil courts order Volkswagen to reduce its CO2 emissions and stop producing cars with combustion engines. While such a lawsuit in the city of Braunschweig — S. 122 —failed in second instance,⁶⁷ similar proceedings in Hamm have not yet been concluded.⁶⁸ In these proceedings, the plaintiffs relied on the GCC climate decision to demonstrate the existence and causes of climate change and the risks to humans associated with climate change.⁶⁹ They further invoked the decision to argue that the reduction of CO2 in the transport sector is necessary to avoid future liberties from being disproportionately restricted.⁷⁰ They also cite the decision to point out that the remaining uncertainties regarding the exact contribution of Volkswagen’s CO2 emissions to climate change, the specific environmental changes and the resulting disasters and damage should not relieve Volkswagen of responsibility for reducing CO emissions.⁷¹ Increas-

2

ing the risk of driving climate change and its negative consequences should be sufficient. The Braunschweig Civil Court dismissed the case, pointing to the fact that the GCC’s climate decision had not found the legislator to be in breach of its positive climate protection duties.⁷² Moreover, it held that the duties that courts may infer from reading civil law in light of constitutional rights could not go further than the state’s obligations arising out of constitutional rights.⁷³ This reasoning has been repeated in several other climate cases that were filed against corporations before civil courts.⁷⁴

d.High-Level Programmatic Impact, But Little Effect on Corporate Actors or the Political Choice of Instruments

The question to be answered now is to what extent the GCC’s decision is an example of the regulatory impact of climate litigation.⁷⁵ Regulatory impact here refers to any effect on regulation, including legal acts and administrative decisions, and behavioral shifts by corporations. The effect may be a change — S. 123 —in regulation or conversely, the blockage of regulation. While direct regulatory impact means that a regulator or corporation is directly obligated to regulate, indirect regulatory impact is broader and encompasses indirect legal avenues that lead to or that block a change in regulation. The GCC’s decision has had a clear direct, legislative, but so far limited indirect regulatory impact. The direct regulatory impact derives from the constitutional duty that the Court infers from interpreting the constitutional liberties as intertemporal guarantees of freedom: the necessity of taking precautionary measures to prevent a disproportionate shifting of CO reduction burdens into the future,⁷⁶ of adopt-

2

ing an innovation-stimulating planning horizon that ensures that the transition to climate neutrality is initiated in good time⁷⁷ and of providing clear CO -

2

reduction targets that are capable of providing the required orientations.⁷⁸ As a result, Parliament had to adopt a carbon neutrality pathway that clearly shows how carbon neutrality is to be achieved by 2050. One could say, the GCC’s decision has arguably infused the law with an understanding of “thick” intergenerational fairness, meaning that the temperature targets, which are rendered quantifiable through the CO2 budget, guide the necessary restrictions of individual liberties. All behavior must be geared towards emitting only as much carbon dioxide as the residual CO2 budget allows. By contrast, a law of “thin” intergenerational fairness would require environmental protection measures in so far as they are technologically feasible and reasonable. Such a technologically oriented framework would not require the limitation of liberties to reduce CO2, if there is no available technology that can help achieve emissions reductions in a robust manner. If interpreted along these lines, the legislator would be asked to regulate more than just to oblige corporations and public authorities to use best and newest technologies with respect to energy efficiency.⁷⁹

However, the Court has given the legislator great leeway with respect to the measures that must be taken. Additionally, the Court did not want to make any judgment on the CO2-budget that the government had endorsed, mentioning that this would include a judgment on matters of “justice” and scientific uncertainty.⁸⁰ It is limited in terms of its global dimension, as it does — S. 124 —not provide the legislature with clear indications on constitutionally viable interpretations of the principle of CBDR-RC. It is also limited to a high-level programmatic or managerial, rather than a substantive, measure-specific regulatory impact. The GCC climate decision has restricted judicial review to the question whether the overall progress of CO2 reduction is sufficient to comply with the requirement of intertemporal fairness. Thus, successful judicial scrutiny focuses on whether fundamental programmatic political decisions evidently fail the CO2 mitigation pathway as set out by the legislator. The strictness of this review intensifies as the remaining national and global carbon budgets shrink.⁸¹ However, the Court did not elevate the interim targets to the constitutional level. It is therefore difficult to assess whether and when the Court would intervene if the government failed to meet the interim targets, but the chance of meeting the overall CO2 budget would still be possible, despite scientific uncertainties.

The consequence of such an approach is visible in the successive proceedings mentioned above. An appraisal of these select cases, reveals that the GCC climate decision has not led to further judicial decisions ordering the government or corporations to increase their climate protection efforts.⁸² The GCC’s decision has not served as a legal basis for constitutional claims against the government to enact specific measures in pursuit of climate protection or to oblige the executive when balancing different interests to give higher weight to climate change concerns. Instead, in cases filed against corporations or the government with respect to their duties to endorse an immediate climate program, the GCC’s decision was invoked by the respondent parties to argue that the political discretion left to the legislator ought not to be undermined by court decisions. Only in cases where a legislative measure for the expansion of wind power was to be justified did the GCC invoke the climate decision to reinforce the legitimacy of the measure’s aim and its relative importance in the balancing of interests. Therefore, one could say, that the GCC’s decision has not catalyzed or strengthened low-profile, routine court cases that entail a smaller, but increasingly growing effect in transforming existing regulatory structures. This possibly diminishes the decision’s broader regulatory impact, as rather insignificant lawsuits that bring about systemic change through collective routinization have been considered one important avenue — S. 125 —for climate litigation to bring about effective regulatory change (so-called “butterfly climate litigation”⁸³).

The GCC’s restraint in climate cases can be explained by its intent to keep within the remit of the judiciary’s competence in a democratic state that adheres to the separation of powers. As the GCC noted in its decision, climate protection necessitates societal transformation.⁸⁴ In order to achieve greenhouse gas neutrality by 2050, far-reaching changes are indispensable. In today’s way of life, almost all behavior is directly or indirectly linked to CO2 emissions. Not only the operation of large industrial plants, but also everyday behavior contributes to the generation of CO2 emissions. The purchase of any product creates demand, prompting the CO2 emissions embedded in its production, transportation and disposal. The necessary social changes caused by the energy transformation lead to economic winners and losers. Steering behavior towards a reduction of CO2 consumption may hit people with less income harder than those with higher income which is why climate change mitigation measures carry the risk of creating or reinforcing socio-economic divides in society.⁸⁵ Related questions of distributive justice require political debate and decision-making. Additionally, there is an element of complexity that prevents courts from interfering with political and administrative decisions. Scientific assessments are necessary to relate each and every single CO2 emission to the residual CO2 budget of Germany. It follows that infusing the law with an element of solidarity, such as intertemporal fairness, is one thing. Refining and specifying it in individual cases is another. As a consequence, the GCC, administrative and civil courts exercise restraint with respect to substantive questions of intragenerational burden-sharing and leave them for the legislator and government to decide.

4.Climate Litigation Success

When evaluating the GCC climate decision’s regulatory impact, can it be concluded that it evidences successful climate litigation? When appraising its success based on the regulatory impact of climate litigation, the GCC’s climate — S. 126 —decision could be deemed a narrow success in terms of its direct regulatory effect and an even narrower one in terms of its indirect regulatory impact. In the literature on the social mobilization of the law or strategic litigation, success has, however, not been reduced to the fact that later regulatory decisions align with the litigants’ objective. Rather, success is viewed as part of a larger picture that inspires social change through litigation.⁸⁶ I agree that what is deemed a climate litigation success should not be reduced to the pure regulatory impact of climate litigation, but that success also connotes a broader societal development that has been catalyzed. It is this understanding of success that perhaps captures the most important part of what human rights-based litigation can achieve with respect to the long-term transformative endeavor of climate change mitigation (a). I submit that for the case in point, the greatest success is that the decision has increased the accountability of political actors by making it transparent whether they give effect to intertemporal interests of young and future generations (b). However, two aspects detract from the success: the Court’s deference to the legislator as regards the CO2-budget and the fact that it is unclear when the Court would intervene if interim targets are not met (c).

a.Potential of Human Rights-Based Climate Litigation

A reflection of the potential function that courts have with respect to the challenge of climate change needs specification in order to define what climate litigation success can possibly mean in this regard. If the function is specified, the success of climate litigation can be examined. Some scholars are skeptical about framing climate change mitigation as a human rights problem, because mitigation relates to the cause of climate change, which is a diffuse phenomenon.⁸⁷ They consider human rights to be inapplicable in this regard, since the use of fossil fuels is broadly accepted in societies.⁸⁸ Conversely, they consider climate adaptation to be a human rights problem, since adaptation relates to the specific effects of climate change, where the state is called upon to protect

people from foreseeable damage caused by climate-related environmental hazards.⁸⁹ Critical legal scholars further contend that the constitutionalization of environmental concerns and their framing as human rights issues comes with risks. They argue that such a conceptualization would remain largely symbolic.⁹⁰ They problematize the intrinsic indeterminacy of rights which can be used to challenge, but also to protect existing structures of privilege.⁹¹ Since either side can invoke and frame grievances in the language of rights, rights may lose their emancipatory power. In fact, companies might foster lawsuits based on climate change-related to urge the development of wind turbines. More profoundly, rights discourse is said to potentially divert the attention away from deeper structural issues of inequality and injustice,⁹² issues of great relevance for the problem of climate change. As a consequence, rights could risk depoliticizing the respective debates.⁹³ Other scholars find that constitutionalization of environmental concerns is important for their effective protection. As a constitutional concern, environmental interests restrict public authority and private encroachment and compel the state to act affirmatively.⁹⁴ In the eyes of several authors, human rights are a suitable means for legally urging governments to take mitigation measures.⁹⁵ In particular, they point to the specific vulnerability of certain — S. 128 —groups of people, a criterion which might help overcome the procedural hurdles and accommodate concerns of climate justice.⁹⁶ They argue that qualifying climate mitigation as a human rights issue cannot be dismissed merely because people benefit from fossil fuels and therefore choose to continue their practice of energy use.⁹⁷

Indeed, in an individual case, the particular claimant might be specifically vulnerable to future adverse climate impacts or affected by legislative restrictions of liberties. Moreover, it may be concluded that human rights adjudicators or constitutional courts appear as the natural representatives of intertemporal interests of young and future generations. It is their constitutional purpose to protect the rights of those who are not part of the electorate and who therefore cannot ensure that their interests are reflected in democratic majority decisions, as is the case for young people who are not yet part of the electorate, and to uphold the intertemporal promise of human rights protection enshrined in the European Convention on Human Rights (ECHR)⁹⁸ or a domestic constitution. The ECtHR has in fact acknowledged this judicial function in the following words in the Verein KlimaSeniorinnen case:

“… democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law. The remit of domestic courts and the Court is therefore complementary to those democratic processes. The task of the judiciary is to ensure the necessary oversight of compliance with legal requirements.”⁹⁹

However, not all claimants in the successful complaints before the GCC were minors, nor were the claimants in Verein KlimaSeniorinnen Schweiz v. Switzerland before the ECtHR, in which the Court granted standing to the association of elderly women. Neither the ECtHR nor the GCC justified the applicants’ standing with reference to their specific vulnerability. Rather, the core of their claims was altruistic, in the sense that they argued for preserving liberties for future generations. In view of the fact that both courts based their decisions on the lack of consistency in the designation and implementation of legislative — S. 129 —climate pathways, one could formulate that the courts implement the political will of the present majority to change their behavior for the sake of protecting young and future generations’ interests against conflicting political and economic short-term interests100. Interpreted in this vein, intergenerational justice remains the aim, but it is conceived as a public interest whose implementation must be supervised. Individual rights are then the necessary tool to open up jurisdiction. Constitutional courts thus seem to oscillate between a mandate to deliver individual justice and a mandate to deliver constitutional justice, the latter meaning guidance on intergenerational fairness as a common constitutional interest.101 Constitutional justice does not only serve the rule of law, but is also intrinsically linked to democracy, since the constitutional court thereby ensures that the democratic will of the people is effectively implemented.102 Fostering transparency of governmental compliance103 allows the public to hold the government accountable for compliance with their own commitments and to make it more responsive.104 If the government fails to do comply, this can lead to bottom-up societal pressure to effectively promote climate change mitigation. In fulfilling this function, a constitutional court acts in the national and global interest. Legally, the GCC is a public institution of Germany and as such accountable to the German people. That does not mean, however, that its judgments must be taken only in the interest of the German population 100 Eve Darian-Smith, Global Burning: Rising Antidemocracy and the Climate Crisis (Stanford University Press 2022), 93; Joseph L Sax, ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’ (1970) 68 Michigan Law Review 471, 557; Wolfgang Streeck, Zwischen Globalismus und Demokratie: politische Ökonomie im ausgehenden Neoliberalismus (Suhrkamp 2021) 480.

101 Cf. the discussion on individual and constitutional justice with respect to pilot judg-

ments of the ECtHR in Steven Greer, ‘Constitutionalizing Adjudication under the European Convention on Human Rights’ (2003) 23(3) Oxford Journal of Legal Studies 405; Steven Greer and Luzius Wildhaber, ‘Revisiting the Debate about “Constitutionalising” the European Court of Human Rights’ (2013) 12(4) Human Rights Law Review 655, 664.

102 Cf Sax (n 100).

103 On the relationship between transparency and accountability, see Albert Meijer,

‘Transparency’ in Mark Bovens, Robert E Goodin and Thomas Schillemans (eds), The Oxford Handbook of Public Accountability (OUP 2014) 507.

104 Democratic control and responsiveness are seen as part of representative democracy,

cf Mark E Warren, ‘Accountability and Democracy’ in Bovens, Goodin and Schillemans (n 103) 39, 47; on the different forms of public accountability beyond parliamentary elections, see Jenny M Lewis and Bodil Damgaard, ‘Accountability and Citizen Participation’ in Bovens, Goodin and Schillemans (n 103) 258; qualifying responsiveness as part of democratic representation, Hanna Pitkin, The Concept of Representation (first published 1967, University of California Press 2023) 112ff.

and not meet its global responsibility. This is because the German constitution envisages Germany as part of the global community of states and people, which is open to international cooperation and must be a reliable partner.¹⁰⁵ Furthermore, climate change, as a truly global phenomenon, implies that the German state will only be able to protect the German population from the negative effects of climate change if it lives up to its global responsibility.

b.Success: Increasing Public Accountability of Mitigation Progress

The GCC has been successful in bringing the legislator in line with intertemporal interests. It has given Germany’s constitutional law and discourse an intertemporal dimension and subjected climate action to judicial scrutiny by requiring the government to adopt a CO2-budget approach that makes CO2- reduction progress measurable. Otherwise, as the GCC has assumed, the government’s compliance with its self-determined CO2 mitigation pathway would not be judicially reviewable on the basis of objectively verifiable grounds. This way, the GCC fulfils the important constitutional court task of improving the accountability of political actors by making transparent whether they give effect to these intertemporal interests. This is an important success, since it helps to make the public discourse on mitigation progress more transparent and thereby accountable and reinforces democratic oversight of climate politics by the people. People are thereby enabled to take informed electoral decisions. Rather than depoliticizing political decisions that have to be taken with respect to climate protection, holding the political actors to account reinforces political debate. The Court was a forum that allowed the litigants to get a lot of media attention which helped to bolster the effect of popularizing and democratizing the public oversight of CO2 mitigation.

Some courts have endorsed the GCC’s decision to adopt the CO2-budget as a methodological instrument to hold the government to account regarding its progress on CO2-reduction. As a consequence, the democratic potential entailed in this approach is realized in other jurisdictions as well, which can be deemed another indicator of the success of the GCC’s decision. The most prominent decision in this regard is the judgment of the ECtHR in Verein KlimaSeniorinnen Switzerland et al v. Switzerland. The ECtHR drew selectively on the GCC’s climate decision. It did not adopt the same doctrinal approach. Instead, it solved the case on the basis of positive obligations. When refining the content of these obligations, it specified that ECHR Member States would have to adopt general measures setting out “a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time — S. 131 —frame, or another equivalent method of quantification of future GHG emissions, in line with the overarching goal for national and/or global climatechange mitigation commitments.”¹⁰⁶ When specifying the content of these obligations, the ECtHR found that the fulfillment of these obligations has to be ascertainable and measurable.¹⁰⁷ It acknowledged that the choice of the respective methods and instruments should be left to the ECHR Member States’ margin of appreciation. However, the Court found that it could scrutinize whether the state provided any such method or instrument to quantify the Member State’s remaining carbon budget. Otherwise, the Court would have “difficulty accepting that the State could be regarded as complying effectively with its regulatory obligation under Article 8 of the Convention.”¹⁰⁸ The ECtHR was convinced by the reasoning of the GCC that found that it was feasible for each state to define its national carbon budget, based on the principle of CBDR-RC under the UNFCCC and the Paris Agreement.¹⁰⁹ Like the GCC, the ECtHR’s review of Switzerland’s conduct was premised on the notion that a carbon budget approach is a suitable way to ensure that the state’s compliance with its national carbon pathway is transparent and assessable. Similarly, the South Korean Constitutional Court (SKCC) determined that the quantitative targets set out in the South Korean climate protection framework law failed to effectively guarantee gradual and continuous emissions reductions up to 2050, due to the lack of quantitative evaluation methods and standards.¹¹⁰ Accordingly, the SKCC held that the legislator violated the “principle of prohibition of insufficient protection”¹¹¹ and the right to a healthy environment.

c.Limits to Success: No Review of CO2-Budget or Interim Progress

There are limits to the successes that can be achieved through constitutional climate litigation. As the GCC states in its decision, even if it principally allows complainants from other legal jurisdictions to invoke the rights to life, health, and property protected under the German Basic Law, the constitutional duty of protection cannot have the same content as that owed to persons under German jurisdiction.¹¹² The reason is that international law’s rules on jurisdiction — S. 132 —do not allow the German legislature and government to adopt the same measures abroad as within their own jurisdiction. Since the Court interprets protective duties as a combination of mitigation and adaptation, adaptation must be substituted by other means of support, such as climate finance. Moreover, the GCC confines itself to scrutinizing whether the measures adopted were manifestly ill-suited or completely inadequate,¹¹³ without analyzing whether the measures fall significantly short of the protection goal.¹¹⁴ Here, the GCC maintains that the German legislature would fulfill this duty of protection through “international commitment to preventing climate change and through specific measures aimed at implementing the internationally agreed climate action.”¹¹⁵ A consequence of this interpretation is not only that the duty of protection has a different legal content, but also that constitutional review of Germany‘s mitigation efforts available to foreign plaintiffs is more limited and less strict than that triggered by individuals under German jurisdiction when invoking their negative liberties.

Moreover, the foreign plaintiffs’ success could have been enhanced, had the GCC critically examined the criteria according to which the CO2 budget is to be determined. German law-making on CO2 reduction has indirect but foreseeable and potentially existential repercussions on vulnerable people, existing or unborn, in other parts of the world. These may result either from climaterelated natural disasters or from the policy changes required by the CO2 transition. The rationale underlying the CO2 budget demonstrates how states conceive of their share of CO2 reduction to be fair with respect to global efforts. Concededly, at present the criteria that international law provides for the fair sharing of burdens are vague. However, they grow increasingly specific under the ongoing scholarly endeavor of interpretation and could grow more authoritative under a growing judicial dialogue in this regard. Moreover, Germany has ratified the UNFCCC and the Paris Agreement. The GCC would thus be in a position to give its interpretation of specific criteria when interpreting what is required under the constitutional objective of environmental protection pursuant to Article 20a Basic Law, read in the light of international law.¹¹⁶ Instead, the Court leaves it to international cooperation and regards the principle of CBDR-RC as an “indication regarding the distribution method.”¹¹⁷ The — S. 133 —distribution method is a matter of fierce political contestation which explains why the Court leaves discretion to the legislator and government in this regard. However, the GCC could require a justification as to whether the method adopted — here the per capita approach — complies with the CBDR-RC principle. Otherwise, focusing merely on the distant future of the bounded nation nurtures the accusation that courts turn a blind eye on the global distributive effects of a problem that can only be tackled by measures that have equally global and potentially detrimental effects on people of other nations.¹¹⁸

Another aspect which currently limits the acknowledgment of a full success is that although the Court has intended to contribute towards the initiation of societal transformation, it is currently inconceivable when the Court would decide that the government has to effectively take more stringent or even specific measures. The GCC acknowledged transformation to be a constitutional task for the state and a shared responsibility of private actors.¹¹⁹ However, administrative and civil courts have not given the concern of climate change mitigation more weight in the balancing of interests with other societal concerns since the GCC’s climate decision. According to the Court, when the finite CO2-budget is increasingly consumed, constitutional law makes it all the more urgent to prohibit any further exercise of freedom involving CO2-emissions.¹²⁰ It follows that if the temperature targets and the goal of climate neutrality will be exceeded with certainty, the concern of climate change must outweigh other interests. However, what happens in the time between? This is unclear at the moment, since the Court has not elevated the interim targets to constitutional status. Hence, while having increased long-term political accountability, the Court’s role in enhancing mid-term accountability remains unclear.

5.Conclusion

Meaningful efforts to reduce CO2 emissions require structural changes in society. The decisions which need to be made concern distributive justice domestically and globally. Judging by their constitutional function, courts are not the first institutions to be entrusted with such decisions. However, as part of the democratic state and as a bastion of the rule of law, they must play their part. The GCC has operationalized intergenerational fairness in prompting the German government to undertake climate action. The decision has attracted — S. 134 —much public attention and given climate protection more weight in public discourse. Arguably, it has contributed to public consensus about the need for action, without stifling debate about the manner of such action. However, the constitutionalization that has been achieved through the recognition of climate change mitigation as a human rights matter has not been followed by civil or administrative courts giving more weight to climate protection in the balancing of interests.

What does this mean for rights-based climate litigation? Ultimately, climate-related rights appear to be an imperfect but strategically relevant tool for advancing the interest in climate protection in Germany. They have enabled the GCC to call policy makers to action and to integrate a dimension of intergenerational fairness into law. Moreover, they provide powerful language for challenging existing carbon-intensive lifestyles.¹²¹ However, the reticence of constitutional courts to delimit political discretion in matters concerning distributive justice or the specific design and implementation of the climate neutrality pathway constitute limits that equally limit a possible litigation success.¹²² Cross-judicial collaboration and dialogue can increase the potential for climate litigation to be successful. The references between GCC, SKCC and ECtHR show that a transnational dialogue on common legal standards is growing. The resulting bottom-up commitment of governments to climate action by the judiciary may help to tackle the cooperation problem that haunts the international arena and hampers effective global climate protection to date.