[Linkpost]: German judges order government to strengthen legislation before end of year to protect future generations

by Flodorner1 min read29th Apr 20212 comments

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LawInstitutions for future generationsEuropean Union
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This is a linkpost for https://www.theguardian.com/world/2021/apr/29/historic-german-ruling-says-climate-goals-not-tough-enough

"The judges ruled that young people’s “fundamental rights to a human future” were threatened and that the law in its current state jeopardised their freedom because the goals set were too focused on dates too far in the future. It said that it was only possible to reduce the rise in average global temperatures to between 1.5C and 2C – as set out in the 2015 Paris agreement – with “more urgent and shorter term measures”.

“The challenged rules violate the freedoms of the complainants, some of whom are still very young,” the judges said in a statement. They added: “Virtually every freedom is potentially affected by these future emission reduction obligations because almost every area of human life is associated with the emission of greenhouse gases and is therefore threatened by drastic restrictions after 2030.”"

While precedent might not matter that much in civil law countries like germany, and I don't know a lot about the details of the respective legislation, this is evidence that courts might rule in favour of "longtermist" positions based on rights-based arguments and could provide an interesting blueprint for advocacy for in and for the future. 

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I also thought this was pretty interesting. Here is what I wrote on some Slack workspace:

 

I think these news from Germany are kind of wild (though probably not unprecedented internationally), and quite possibly interesting for 'longtermist policy', rights of future generations, etc., more broadly:

Germany must update its climate law by the end of next year to set out how it will bring carbon emissions down to almost zero by 2050, its top court ruled on Thursday, siding with a young woman who argued rising sea levels would engulf her family farm.

The court concluded that a law passed in 2019 had failed to make sufficient provision for cuts beyond 2030, casting a shadow over a signature achievement of Chancellor Angela Merkel's final term in office.

https://www.reuters.com/business/environment/germany-must-further-tighten-climate-change-law-top-court-rules-2021-04-29/

Note that this is from Germany's constitutional court. This both means that there is no appeal to this ruling, and that in a sense the statement is quite strong: according the court, failure to properly specify climate policy for the 2030--2050 period is unconstitutional.

Specifically, I think it's interesting that:
 

  • A court rules that a government must now change its law pertaining to issues ~10 years ahead.
  • The legal basis for this are the basic rights of currently young people.
  • Essentially the government is required to act in a certain way: to come up with a plan for how to prevent future harms. It's not just about not making things worse (as in e.g. striking down fossil fuel subsidies).

The court's reasoning is also interesting:

  • There is a clause in Germany's constitution, added in 1994, that essentially requires government to protect the environment to such an extent that future generations will be able to thrive.
  • However, the court's decision is not based on an outright violation of that requirement. Basically b/c the climate law's stated emission reductions by 2050 are considered sufficient for meeting that requirement.
  • Instead, the court argued that the current climate law leaves too much room for a disproportionate curtailment of freedom for people living beyond 2030. The court essentially says: the required total emission reductions by 2050 will be costly, and at least some ways for how to achieve them may significantly curtail people's freedom; you are therefore obligated to minimize these 'costs' to people's freedom, and at the very least this requires you to give people sufficient "advance warning" by stating what the emission reduction schedule 2030-2050 will be. And deciding this in 2025 is not enough "advance warning", you have to do it now.

So basically the government is violating young people's basic rights today by leaving too much room for potential future curtailments of their freedom.

These future obligations to reduce emissions have an impact on practically every type of freedom because virtually all aspects of human life still involve the emission of greenhouse gases and are thus potentially threatened by drastic restrictions after 2030. Therefore, the legislator should have taken precautionary steps to mitigate these major burdens in order to safeguard the freedom guaranteed by fundamental rights.

(From the court's English press release.) 

It's also interesting that some complainants "live in Bangladesh and Nepal".

(I haven't read the Reuters article. In my experience at least German media are notoriously bad at accurately reporting the constitutional court's rulings. I recommend reading the court's English press release, or to machine translate the full ruling -- currently only available in German -- if you wanted to know more.)

This was a really interesting decision, thanks for highlighting it here! In the meantime it was followed by other courts with similar cases in the Netherlands and Australia.
Also, for people interested in a legal analysis of the decision, together with my colleague Renan Araújo from the Legal Priorities Project I wrote a blog post on the decision for a UK blog.