Previous instances
The complainants in their constitutional claim primarily argued that the state, in enacting § 3(1) and § 4(1) in conjunction with Annex 2, failed to introduce a legal framework sufficient to swiftly reduce greenhouse gases, and especially carbon dioxide (CO2). The complainants submitted that such a legal framework is necessary to limit the increase in the Earth’s temperature to 1.5°C, or at least to well below 2°C. They deemed this to be necessary because a temperature increase of more than 1.5°C would place millions of lives in danger and would risk the crossing of tipping points with unforeseeable consequences for the climate system.
Further, they claimed that the reduction of CO2 emissions as laid down in the KSG would not be sufficient to stay within the remaining CO2 budget that would correspond to a temperature increase of 1.5°C.
Summary of holding
Procedurally, it is interesting to note that all complaints from natural persons were admissible. By contrast, the complaints of non-governmental organisations (NGOs), who claimed to be “advocates of nature” through an interplay of German and European regulations, were dismissed as inadmissible for lack of standing to complain.
The court then substantively found that the duties of protection arising from Art. 2(2) GG (protection of life and physical integrity) and Art. 14(1) GG (right to property) were violated due to the risks posed by climate change. Although the court in the first instance stated that both Art. 2 and Art. 14 include in their scope of protection damages and impairments caused by climate change for present as well as future generations, the constitutional court pointed out that the legislator has the leeway to regulate such matters and that the current concept was neither completely inadequate nor completely unsuitable. Therefore, a violation of the duty to protect had not yet occurred.
In a subordinate clause, the court mentioned that additional protection can be provided in the form of adaptation measures in order to protect fundamental rights against the risks posed by climate change.
Unfortunately, this means that the court left open the issue of whether duties of protection arising from fundamental rights also place Germany under an obligation vis-à-vis the complainants living in Bangladesh and Nepal to take action against – both potential and actual – impairments caused by global climate change.
However, the court went on to find that a violation of fundamental rights as a whole had occurred. This is because unilaterally shifting the greenhouse gas reduction burden imposed by Article 20a GG (state’s constitutional responsibility for future generations and protection of natural foundations of life and animals) into the future was an insufficient concretization of the reductions, and violated the intertemporally guaranteed freedom of fundamental rights.
The court noted that CO2-relevant use of freedom to stop climate change would have to be stopped at some point anyway, because global warming can only be stopped if the anthropogenic CO2 concentration in the earth’s atmosphere stops rising. Extensive consumption of the CO2 budget as early as 2030, however, exacerbates the risk of serious loss of freedom, because it reduces the time available for technical and social developments that could be used to make the switch from lifestyles still extensively associated with CO2 emissions to climate-neutral behaviours in a way that preserves freedom.
Therefore, the case of Bundesverfassungsgericht (BVerfG) imposes two fundamental requirements on emission regulations.
- First, these rules must comply with the elementary basic decisions and general constitutional principles of GG; and
- Second, they must not lead to disproportionate burdens on the complainants’ future freedom.
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