Federal Constitutional Court confirms basic right to future in its decision.
1. What did the Federal Constitutional Court decide? 1. What did the Federal Constitutional Court decide?
On 29.04.2021, the German Federal Constitutional Court (BVerfG) announced its decision to set a new standard for climate action and the protection of fundamental rights. The Court states that today's insufficient climate policies affect tomorrow's freedoms and fundamental rights. It is a constitutional requirement to reduce greenhouse gas emissions and this must no longer be delayed at the expense of younger generations.
The Federal Climate Protection Act of 2019 is declared unconstitutional in large parts and must be improved accordingly. The court calls on the legislature to follow scientific guidance and present a conclusive emissions reduction plan by the end of 2022 with the goal of greenhouse gas neutrality. In doing so, the freedoms and fundamental rights of young and future generations must be safeguarded and the CO2 budget must be distributed in a way that is fair to all generations.
In its decision, the Constitutional Court also emphasizes Germany's international responsibility in the global climate crisis and notes that a state cannot evade its responsibility by referring to the greenhouse gas emissions of other states.
The core statements of the decision are:
- Climate protection is a human right
- The constitution is interpreted in a way that is fair to all generations
- Climate change is real and the legislature must counteract it
- The legislature must be guided by the requirements of science and develop coherent an approach for greenhouse gas neutrality
- Climate protection is justiciable, today and in the future
- Climate protection is part of the protection of fundamental rights
For more information on the decision, see the brief analysis by attorney Dr. Roda Verheyen
The Federal Constitutional Court has ruled on four climate constitutional complaints. Germanwatch, Greenpeace and Protect the Planet supported one of the lawsuits.
2. Why is the decision historic?2. Why is the decision historic?
The ruling is both ground-breaking and historic: The decision raises the temperature goals of the Paris Agreement and the achievement of climate neutrality to a constitutional status: Article 20a of the constitution, which protects "in responsibility for future generations, the natural foundations of life and animals," becomes enforceable (justiciable). With its decision, the Federal Constitutional Court provides a contemporary redefinition of the concept of freedom in the climate crisis. The state's obligation to protect the freedom of the young generation in the future results in an obligation to do more to protect the climate in the present.
3. What happens after the court decision?3. What happens after the court decision?
The legislature must amend the Climate Protection Act of 2019 by the end of 2022. The new measures announced by the government shortly after the ruling - 65% reduction by 2030, 88% by 2040 and climate neutrality as early as 2045 - are major steps in the right direction. They had been politically unthinkable before the ruling. It is unclear how these targets will be achieved in concrete terms and transferred to the individual sectors. These goals are not yet in line with the Paris Agreement and a temperature reduction to 1.5 degrees.
4. What is the background of the lawsuit?4. What is the background of the lawsuit?
In 2020, nine young people between the ages of 15 and 32 from different regions of Germany decided to go to the Federal Constitutional Court. In their eyes, the Federal Climate Protection Act (passed in 2019) is too weak to effectively contain the consequences of the climate crisis today and in the future.
The plaintiffs' lives will extend into the second half of the 21st century, when the impacts of global warming will reach a much greater intensity than is already the case at present. Their families work in tourism or agriculture and live on islands like Pellworm or Langeoog. They are already feeling the climate crisis in the form of extreme weather events and sea level rise, and they are worried about their future. With its insufficiently ambitious climate policy, the German government is not fulfilling its mandate, anchored in the German constitution, to protect their basic rights to life and physical integrity, to property and to their occupation.
The constitutional complaint is based on lawsuits filed in Germany and at the EU level: Some of the complainants, together with Greenpeace, had filed a lawsuit against the insufficiently ambitious national climate target 2020 before the Berlin Administrative Court. Lüke Recktenwald from Langeoog had gone to the European Court of Justice with his family for more ambitious 2030 EU climate targets. Like Luisa Neubauer from Fridays for Future, he joined the constitutional complaint in early 2020.
Already in November 2018, before the climate protection law was passed, an alliance consisting of the German Solar Energy Promotion Association (SFV), the Friends of the Earth Germany (BUND) and other individual plaintiffs had filed a constitutional complaint.
In addition, other young adults from Germany and people from Bangladesh and Nepal affected by climate change also filed constitutional complaints in early 2020. They are supported by the NGO Environmental Action Germany (DUH). More information here.
5. What exactly happened in the legal process?5. What exactly happened in the legal process?
On February 12, 2020, nine young plaintiffs filed their constitutional complaint with the Federal Constitutional Court. (AZ: 1 BvR 288/20).
On June 19, 2020, the Federal Constitutional Court sent the complaint to the Bundestag and the Bundestag Council, the Chancellor's Office, the Federal Ministry of the Interior and the Federal Ministry of Justice, and all state governments, requesting them to submit their comments.
In October 2020, the Federal Government and the Bundestag submitted their comments.
On February 11, 2021, the complainants responded to the comments of the Federal Government and the Bundestag with a reply.
On April 29, 2021, the Federal Constitutional Court announced its decision.
6. Who are the plaintiffs and to what extent are they affected by the climate crisis?6. Who are the plaintiffs and to what extent are they affected by the climate crisis?
Lüke Recktenwald (18 years old) is a student and lives on Langeoog. His family has been living on the North Sea island for four generations and they run a hotel and restaurant on the island. Lüke is already experiencing the effects of climate change: due to rising sea levels, storm tides and the resulting erosion of the dunes, the family's property and home are in danger. The island's drinking water supply is also threatened. Due to the rise of the sea level, salt water could enter to the only source of drinking water, the so-called freshwater lens, and make it unusable for decades - with serious consequences for life on the island. It is unclear how long Lüke can continue to live on Langeoog and whether he will be able to take over the family business in the future. Lüke is already a co-plaintiff in the European „People‘s Climate Case”, which calls for more ambitious European climate targets. The case was dismissed on March 25, 2021.
Luisa Neubauer is Germany's best-known climate activist. At 23 years of age, the geography student belongs to the generation that will be confronted with dramatic effects of the climate crisis in the second half of the century. The co-founder of the German Fridays-for-Future movement has effectively "suspended" her education and private life in order to work together with hundreds of thousands of members of her generation for more climate action, both politically and in the media. She is now demanding effective protection for herself and future generations in court. She participates in the lawsuit as a private individual.
The four siblings Sophie (21 years), Paul (20 years), Hannes (17 years) and Jakob (15 years) Backsen are from the North Sea island of Pellworm and wish to continue living there in the future. Their farm Edenswarf is a family business from the 17th century and will one day be taken over by the children. On their farm, the family grows crops and keeps livestock. The Backsens also keep sheep on the dike and rent out holiday apartments on the island. In September 2017, one third of Pellworm was completely under water. Most of Pellworm is located one meter below sea level. This means that with increasing storm tides the island could fill up like a bathtub after a dike burst. As a result of the climate crisis, extreme weather events such as heavy rain or drought are becoming more frequent. If the sea level rises, the existing dikes may soon no longer be sufficient to protect the island. Pellworm would become uninhabitable, even for the four children of the Backsen family.
Lucas Lütke-Schwienhorst (32) has taken over the Ogrosen farm in Vetschau (Brandenburg), which has existed for more than 200 years, from his parents. The Lütke-Schwienhorsts keep about 120 dairy cows. The farm shop sells cheese, dairy products and other products from the Ogrosen farm community. Extreme weather events such as the hot summers with too little rainfall hit the farm hard: in the last two years, only about half of the usual hay and grain yield could be achieved. The unusually hot summer also impacted the animals - they suffered from heat stress. The forest belonging to the estate is extremely damaged. The ongoing climate crisis is thus endangering the income and property of Lucas and his family as well as the life of the next generations on the Ogrosen farm.
Johannes und Franziska Blohm are to inherit their father's traditional fruit farm someday. However, whether the centuries-old farm will survive the coming generations is increasingly questionable. In the "Altes Land" near Hamburg, apples are the main crop grown on the organic farm alongside other types of fruit. The increase in extreme weather conditions, as well as plagues and fruit diseases that were previously unknown in these latitudes, are giving the organic farm a hard time - direct and indirect consequences of global warming.
Without sufficiently ambitious climate protection, all plaintiffs face an uncertain and geopolitically unstable future that puts their lives at risk. In Germany, extreme weather events and new types of diseases also pose health risks which would not exist without climate change. For the plaintiffs' generation, climate change is a threat to their very existence.
7. What role did Germanwatch play in the lawsuit?7. What role did Germanwatch play in the lawsuit?
Germanwatch and the environmental organizations Greenpeace and Protect the Planet supported the constitutional complaint of the nine young people, but are not acting as plaintiffs themselves. Germanwatch especially supports the plaintiff Lüke Recktenwald and his family on Langeoog and informs the German public about the proceedings. The accompaniment of climate lawsuits is an important part of the Germanwatch strategy to achieve a climate policy that appropriately addresses the global climate crisis.
8. Are there more legal actions around the world for more climate protection?8. Are there more legal actions around the world for more climate protection?
The constitutional complaint is part of a worldwide trend of climate litigation: The decision of the The Federal Constitutional Court refers in various ways to previous (inter)national proceedings (e.g. the decision of the Berlin Administrative Court or the Dutch Hoge Raad in the so-called Urgenda case) and will in turn likely impact other ongoing proceedings, providing a new impetus for climate litigation.
One lawsuit attracting significant attention regarding the question of intergenerational justice is the case of six Portuguese children and young people before the European Court of Human Rights (ECHR) in Strasbourg. The lawsuit is directed against all 27 EU member states as well as Great Britain, Switzerland, Norway, Russia, Turkey and Ukraine - in other words, all states party to the European Convention on Human Rights (ECHR). According to the young people, these states are violating their human rights because they are not reducing their greenhouse gases sufficiently to limit global warming to 1.5 degrees.
In addition to the children from Portugal, Greta Thunberg and 15 other children have also filed a class action lawsuit with the UN Committee on the Rights of the Child in Geneva in September 2019. The committee is expected to find that Argentina, Brazil, Germany, France and Turkey share responsibility for the climate crisis and are therefore violating children's rights. The children invoke globally applicable children's rights and the third additional protocol of the UN Convention on the Rights of the Child through an individual complaint.
In Colombia in 2018, 25 young people aged 7-25 filed a complaint against the Colombian government, several local governments and a number of companies. The young people argued that the government had failed on climate action. In particular, the ongoing massive deforestation of the Amazon threatens their fundamental rights to a healthy environment, life, health, food and water. In April 2018, the Supreme Court ruled in favour of the young people, recognizing the Colombian Amazon as a legal entity and calling on the government to implement measures against deforestation in the Amazon. In August 2019, the Bogota District Court scheduled a series of hearings to review the implementation of the Supreme Court's decision.
9. How should the decision of the European Court of Justice in the People's Climate Case be assessed in light of the Federal Constitutional Court ruling?9. How should the decision of the European Court of Justice in the People's Climate Case be assessed in light of the Federal Constitutional Court ruling?
In March 2021, the European Court of Justice (ECJ) dismissed a lawsuit filed by ten families and a Sami youth association for more ambitious EU 2030 climate targets - on the grounds that climate change affects everyone and that the plaintiffs are therefore not uniquely and individually affected and accordingly do not have standing to sue. In contrast to the ECJ, the Federal Constitutional Court did not deny legal protection to those affected by climate change: according to the judge in Karlsruhe, the fact that many people are affected does not preclude that an individual can be affected in terms of their fundamental rights. Given the decision of the Federal Constitutional Court, a similar lawsuit at EU level could be judged differently in the future.
In addition, the BVerfG's ruling and the German government's subsequent improvements to the German Climate Protection Act will also have a political impact at the EU level: In the context of the negotiations on the implementation of the new EU climate target for 2030 - the so-called Fit for 55 package - the question for every regulation and directive will be whether it is sufficiently ambitious to protect future generations.
10. Which other climate lawsuits does Germanwatch support?10. Which other climate lawsuits does Germanwatch support?
In addition to the constitutional complaint and the People's Climate Case, Germanwatch supports two other proceedings:
Since 2015, Germanwatch has been supporting the Peruvian farmer and mountain guide Saúl Luciano Lliuya in a civil climate lawsuit against the German energy company RWE. Due to climate change-induced glacier melt, a glacial lake above the Andean town of Huaraz, located at an altitude of 3,000 meters, has grown considerably. If the lake’s dam were to burst, Saúl Luciano Lliuya's house and a large part of the city of Huaraz, which lies below the glacial lake, would be threatened with catastrophic flooding. As Europe's largest CO2 emitter, RWE is responsible for around half a percent of all industrial greenhouse gas emissions worldwide since the beginning of industrialization. In this test case, Saúl Luciano Lliuya is demanding that RWE cover 0.5% of the cost for protective measures required at the glacial lake. The lawsuit is being heard by the Higher Regional Court of Hamm. At the end of 2021 or beginning of 2022, a visit Huaraz and the glacial lake is expected to take place with the German judges, lawyers and court-appointed experts. In addition, the court will examine scientific studies that establish a causal link between RWE's emissions and glacier retreat in Peru. A verdict in Hamm is expected in 2022 at the earliest, after which there could still be an appeal to the Federal Supreme Court.
At the beginning of May 2021, Germanwatch also intervened through the European network CAN-Europe in the proceedings of the six Portuguese children and young people before the European Court of Human Rights in Strasbourg (see above), also presenting the legal considerations on which the recent decision of the Federal Constitutional Court was based.
11. How can I support Germanwatch?11. How can I support Germanwatch?
Germanwatch's work in the field of climate action is based on donations. You are welcome to support us by making an earmarked donation. Thank you very much!
Against the background of the worsening climate crisis, the Climate Action Network (CAN) has launched the #WorldWeWant campaign. Through a series of short films, people from different regions of the world tell how climate change is affecting their lives and communities. Plaintiff Lüke Recktenwald is also involved with a video about his home island Langeoog.
Lüke Recktenwald is a real "islander". His family has been living on the North Sea island of Langeoog for four generations and runs a hotel and restaurant. Whether Lüke will be able to live and work on the island in the future like his parents is uncertain, as Langeoog is increasingly threatened by the climate crisis. In this interview he tells how he experiences the climate and health crisis on the island and why he decided to go to court to demand climate protection.
Anyone who violates another person’s fundamental rights by emitting greenhouse gases bears a double legal duty: First, to put a stop to this harm so that the (fundamental) rights of others are not undermined. Second, polluters have to account for the protection of those at risk as well as the damages that still occur. In order to enforce these legal obligations in Germany and internationally, Germanwatch supports three climate lawsuits.
Deutsche Welle, 29.04.2021
German climate law is partly unconstitutional, top court rules
The Guardian, 29.04.2021
‘Historic’ German ruling says climate goals not tough enough
The New York Times, 29.04.2021
German High Court Hands Youth a Victory in Climate Change Fight