ConstitutionalLaw – Earth Refuge Legal

March 24, 2021February 14, 2022

Bundesverfassungsgericht, Order 1 BvR 2656/18, 1 BvR 96/20, 1 BvR 78/20, 1 BvR 288/20, 1 BvR 96/20, 1 BvR 78/20

Date of judgement: 24 March 2021

Court: Federal Constitutional Court of Germany

Citation(s): BVerfG, Order of the First Senate of 24 March 2021 – 1 BvR 2656/18 -, paras. 1-270

Short summary

In its decision, the Federal Constitutional Court classified the German Climate Protection Act in its current form as violative of fundamental rights because it disproportionately shifts the burden of greenhouse gas reduction to future generations, thereby recognising for the first time the existence and violation of the intertemporal dimension of their civil rights.

Summary by: Robert Los

Link to original judgement

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Weight of decision

The order bears immense weight in Germany as the judgement indirectly grants a right to future generations with regard to protection or relief from CO2 emissions and other climate changes.

Key facts

The Federal Climate Change Act (Klimaschutzgesetz – KSG) was drafted in response to the need for greater climate action efforts. Its purpose is to afford protection against the effects of global climate change (§ 1 S.1), and as stated under § 1 S.3, the basis of the KSG is the obligation under the Paris Agreement as well as the commitment made by the Federal Republic of Germany to pursue the long-term goal of greenhouse gas neutrality by 2050.

Greenhouse gas emissions must be gradually reduced by the target year 2030 by at least 55%, relative to 1990 levels (§ 3(1)). In conjunction with Annex 2, § 4(1) sets out the annual permissible emission levels for various sectors in line with the reduction quota for the target year 2030. Provisions applicable beyond 2030 are not contained in the KSG. Rather, § 4(6) provides that in the year 2025, the Federal Government must – by way of ordinances – set annually decreasing emission levels for periods following 2030.

In support of their constitutional claims, the complainants − some of whom live in Bangladesh and Nepal − relied primarily on constitutional duties of protection arising from Art. 2(2) of the German Constitution Grundgesetz (GG), and Art. 14(1) GG, as well as the a fundamental right to a future in accordance with human dignity, and the fundamental right to an ecological minimum standard of living (ökologisches Existenzminimum), which they derived from Art. 2(1) GG in conjunction with Art. 20a GG and from Art. 2(1) GG in conjunction with Art. 1(1) GG.

With regard to future burdens arising from the obligations to reduce emissions in the periods following 2030 – described by the complainants as an “emergency stop” – they relied on fundamental freedoms more generally.

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July 30, 2020July 26, 2022

Friends of the Irish Environment CLG v. The Government of Ireland & Ors.

Date: 30 July 2020

Court: Supreme Court of the Republic of Ireland

Citation(s): [2020] IESC 49

Short summary

The Supreme Court of Ireland quashed the government’s National Mitigation Plan to reduce carbon emissions, stating that the Plan was ambiguous in how it would achieve the “national transition objective”, an obligation undertaken by the Irish Government under the Climate Action and Low-Carbon Development Act 2015.

Summary by: Samyuktha Banusekar

Link to Original Judgement

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Weight of decision

This case was decided by the Supreme Court of the Republic of Ireland, the highest judicial authority in the Republic of Ireland.

Key facts

Friends of the Irish Environment (FIE), an advocacy group, filed a petition in the High Court challenging the National Mitigation Plan (“The Plan”) published on 19.07.2017, which was approved by the government and recognized under § 3 of the Climate Action and Low Carbon Development Act, 2015 (“The Act”). The Plan was alleged to be in violation of the Act, the Constitution of Ireland, and obligations under the European Convention on Human Rights (ECHR), especially with respect to the rights to life and private and family life. FIE stated that the Plan, seeking to transition to a low-carbon economy by 2050, was not consistent with the Act or the commitments that Ireland is obliged to fulfil under the ECHR, mainly due to the fact that it did not seek to cut short-term emissions in a substantial manner.

Previous instances

FIE pled before the High Court to either quash the Plan or decide that a new plan be devised. However, the High Court rejected FIE’s argument and ruled in favour of the Government, asserting that the Act had not mandated intermediate targets. The Court also held that the Plan was an initial step in the transition to a low-carbon economy that was to be achieved by 2050, and that neither Ireland’s Constitution nor the ECHR was violated by the Plan. This led to both an application to appeal in the Court of Appeal and an application to appeal directly to the Supreme Court; the latter agreed to hear the case.

Summary of holding

In 2020, the Supreme Court reversed the decision of the High Court and quashed the Plan.

Primarily, the Supreme Court observed that § 4 of the Act requires the Plan to specify in what manner the nation will achieve its national transition objective, and that policy measures must concur with this. The Supreme Court held that the Plan must be specific in how the national transition objective is to be achieved by 2050, although the Plan is subject to revision every five years. The Court also attached weight to the opinions of Ireland’s Climate Change Advisory Council, a body established under the Act which tracks policy progress. When the Supreme Court reviewed the Plan, it observed that it fell short of the level of specific instructions that were expected under § 4. The Court also found its policies to be vague and reliant on future investigations. Thus, it was held that the Plan did not comply with the Act and that a new specific Plan should be devised.

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January 17, 2020July 20, 2022

Juliana v. United States

Date: 17 January 2020

Court: U.S. Court of Appeals for the Ninth Circuit

Citation(s): Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020)

Short summary

A group of young people sued the United States government for failing to prevent climate change, seeking an order requiring the government to develop a plan to phase out domestic fossil fuel emissions. The plaintiffs claimed violations of their substantive due process, equal protection, the Ninth Amendment, and the public trust doctrine. The court found that the plaintiffs established injury-in-fact and causation for Article III standing but that their claim failed for lack of redressability.

Summary by: Nicole Gasmen and Luke Hancox

Link to Original Judgement

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Weight of decision

This decision comes from the Ninth Circuit of the United States Court of Appeals and is therefore binding on all courts in the Circuit and persuasive in other federal courts.

Key facts

The plaintiffs were twenty-one young citizens, an environmental organization, and a “representative of future generations.” [1165] They sued the President (later dismissed from the action), the United States, and federal agencies. The complaint accused the government of continuing to “permit, authorize, and subsidize” [1165] fossil fuel use, despite awareness of its risks, leading to various climate-change-related injuries. The plaintiffs’ claims varied from psychological harm and impairment of recreational interests to exacerbated medical conditions and property damage.

The complaint asserted violations of the plaintiffs’ constitutional rights:

“(1) the plaintiffs’ substantive rights under the Due Process Clause of the Fifth Amendment; (2) the plaintiffs’ rights under the Fifth Amendment to equal protection of the law; (3) the plaintiffs’ rights under the Ninth Amendment; and (4) the public trust doctrine.” [1165]

The plaintiffs sought declaratory relief and an injunction ordering the government to implement a plan to “phase out fossil fuel emissions and draw down excess atmospheric [carbon dioxide].” [1165]

The court noted that the District Court record and this appeal recognized climate change is occurring at a rapid pace. The court stated that rising carbon emissions would wreak havoc on the Earth’s climate if left unchecked, and that the federal government long understood these risks and affirmatively contributed to their worsening.

The government largely did not contest the factual basis for the plaintiffs’ claims, only that they lacked standing to pursue them.

Previous instances

The District Court denied the government’s motion to dismiss. That court stated that the plaintiffs had standing to pursue their claims that the government violated their constitutional rights, including a Fifth Amendment right to a “climate system capable of sustaining human life.” [1165] The District Court also found a separate viable “danger-creation due process claim” [1165] based on the government’s lack of regulation on third-party emissions and a public trust doctrine claim.

At summary judgment, the District Court dismissed the President as a defendant and dismissed the plaintiffs’ Equal Protection claim in part. That court also dismissed the plaintiffs’ Ninth Amendment claims. The government then sought this interlocutory appeal to resolve the standing issue and other grounds for dismissal.

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