Neubauer v. Germany

In March 2021, the German Constitutional Court handed down a ruling in the Neubauer v. Germany case. Soon thereafter, news of the case made global headlines as a significant legal victory in the fight against climate change. The ruling’s important insight on how courts can address climate change and its unique features may not only accelerate climate action in Germany but may also be employed in climate cases in other countries and international bodies, where it may increase the cases’ likelihood of success.

A year before the Court issued its ruling, the plaintiffs filed their complaint, targeting a German climate protection law. In it, the plaintiffs argued that the climate law violated their constitutional rights to human dignity, life and physical integrity, freedom of occupation, and property by: (1) failing to adopt sufficiently stringent GHG emission reduction targets for the year 2030; (2) failing to adequately lay out a plan that keeps greenhouse gas (GHG) emissions as low as possible; and (3) permitting the transfer of GHG emission allocations to neighboring countries, on the basis that EU climate protection regulations don’t sufficiently safeguard rights. Interestingly, though the plaintiffs’ complaint focused on emission reductions before 2030, the German Constitutional Court ultimately centered its decision on the law’s failure to provide a clear emission reduction plan for the years beyond 2030.

Though rich in detail, the ruling of the German Constitutional Court unfolds according to a basic structure. The Court first establishes that the German government is required under the Constitution to protect the climate for present and future generations. This means, specifically, limiting global warming to well below two degrees Celsius – as established by the Paris Agreement and confirmed by the German legislature. Limiting global warming to well below two degrees Celsius means that only a finite quantity of carbon dioxide can be emitted going forward; this is the global carbon budget. The share of that budget that Germany can consume is the national carbon budget. The emission reduction targets laid out until 2030 by the German climate protection law determine how much of the national carbon budget will be consumed by 2030; the more that is consumed in the short-term, the less that future generations will have to consume. The laxer emission reductions are in the short-term, the more substantial they will have to be in the long-term. Lax present emission reductions may save present generations from substantial restrictions on their behavior but may ultimately require future generations to comply with severe restrictions on their behavior in order to protect the climate system.

“One generation must not be allowed to consume large parts of the CO2 budget under a comparatively mild reduction burden if this would at the same time leave future generations with a radical reduction burden – described by the complainants as a ‘full brake’ – and expose their lives to serious losses of freedom. It is true that even serious losses of freedom may be proportionate and justified in the future in order to protect the climate; it is precisely this future justifiability that threatens to result in the risk of having to accept considerable losses of freedom. . . However, because the course for future encumbrances on freedom is already set by the current regulation of permissible emission levels, their impact on future freedom must be proportionate from today’s perspective and at the present time – when the course can still be changed.”

German Constitutional Court, 2021

This one-sided burdening of future generations is, according to the Court, unconstitutional and not appropriately addressed by the challenged provisions of the climate protection law. As a result, the Court orders the German government to issue revised legislation that reduces the emission reduction burden on future generations, lays out clearer emission reduction targets in the short-term (including post-2030), and better facilitates the ongoing transition to climate neutral lifestyles.

Focusing on youth and future generations

The Court centered much of its ruling on the burdens that young and future generations would bear under the emission reduction scheme established by the challenged climate law. Focusing on the harms that the young plaintiffs and future generations would experience helps make the future consequences of climate change more relevant to the present – both from a legal perspective and a narrative perspective. Legally, focusing on the harms that the young plaintiffs and future generations will experience makes the allegations of rights violations sufficiently concrete such that the Court could review the case (claims of harm that are too abstract or far off in the future are often considered inappropriate subjects for review by courts, given that the judiciary is usually tasked with resolving tangible, presently concerning issues). Narratively, the focus on the young plaintiffs and future generations injects a sense of urgency into climate cases by demonstrating that future climate change will harm people, including people already alive today, thus helping to counter the impulse to discount (or disregard) future impacts.

Tying countries’ / corporations’ climate and human rights obligations to international climate and environmental law, including, for example, the temperature target established by the Paris Agreement

The Court tied its assessment of the adequacy of the challenged climate law to the temperature target set by the Paris Agreement: well below 2 degrees Celsius and striving towards 1.5 degrees Celsius above pre-industrial temperatures. Because courts typically want to avoid the appearance of policymaking – which is usually left to the legislature under government systems that separate the powers of different branches of government – using the Paris temperature goal as the benchmark to assess the adequacy of the government’s action on climate change gives courts a metric that was not their own creation but rather the product of scientific and international political consensus.

Affirming country / corporate responsibility for their ‘fair share’ of emission reductions, regardless of the actions of other countries or corporations.

States frequently argue in climate cases that they can’t be required to take particular actions to stem climate change because climate change is a problem that can only be solved globally – if other countries don’t sufficiently reduce their greenhouse gas emissions, climate change will persist, even if the respondent country takes more ambitious action to reduce their emissions. Courts have countered this argument by requiring countries to do their ‘fair share’ or ‘part’ of emission reductions, meaning that courts are increasingly requiring countries to reduce greenhouse gas emissions by a proportion that reflects their current share of global emissions, their historic share of global emissions, their economic status, and/or any other factor that comprises ‘fairness’ in global emission reduction sharing, regardless of what other countries do.

In this case, the Court affirmed that domestic emission reduction efforts are an essential component of global climate protection efforts; Germany’s fair share of emission reductions are thus a suitable part of the overall global effort to limit global warming. As a result, the German government can’t rely on the global nature of climate change as an excuse to avoid taking sufficiently ambitious action on climate change.

“[T]he imperative to take national climate protection measures cannot be countered with the argument that [the state] cannot stop climate change [alone] . . . if Germany’s climate protection measures are integrated into global climate protection efforts, they are suitable as part of the overall effort to bring about the end of climate change. . . In this context, the state could also not evade its responsibility by referring to greenhouse gas emissions in other states.”

German Constitutional Court, 2021

Articulating an obligation to cooperate internationally

Because climate change is a global problem (greenhouse gases emitted anywhere contribute to climate change everywhere), it requires a global solution.

As articulated by the Court in this case, the government has a duty to protect the climate system for present and future generations. Since climate change requires global action, the climate system cannot be adequately protected without it. As part of its obligation to protect the climate system, therefore, the government must take steps to facilitate global action on climate change, including by cooperating internationally to reach and implement international frameworks on climate change.

Using a carbon budget

Global and national carbon budgets provide the finite quantity of carbon dioxide that can be emitted globally and nationally, respectively, if global warming is to be limited to well below 2 degrees Celsius or to 1.5 degrees Celsius.

Carbon budgets help courts assess whether state actions are consistent with their obligations to limit global warming: domestic emissions that, if replicated, would surpass the global carbon budget or that surpass the established national carbon budget can make the policies and government actions that permit those emissions invalid.

The fact that climate change affects a lot of people should not prevent plaintiffs from bringing climate change cases. Courts have sometimes refused to review climate-related cases on the basis that the plaintiffs failed to sufficiently demonstrate the individualized injury – meaning, the harms experienced by the plaintiffs that are distinct from the harms experienced by the general population – necessary to sue.

In Neubauer, the Court addresses this potential barrier rather swiftly: “The mere fact that a large number of persons are affected does not prevent an individual fundamental right from being affected.” The plaintiffs, according to the Court, had adequately demonstrated a risk of harm to their fundamental rights; they were not required beyond that to “distinguish them[selves] from the general public.”

Current emissions reduction targets shape future emission reduction needs. In climate litigation, it is often the case that plaintiffs are not experiencing serious harms today but are likely to experience serious harms in the future, at which point it will be too late to take the necessary action to protect them from such harms, including violations of their rights. That is because once greenhouse gases are emitted, they will remain in the atmosphere – and continue to warm the planet – until they naturally cycle back down to Earth. So, as a result of present emissions, the climate will continue to change and harm future generations even if those generations stop emitting greenhouse gases altogether.

Some courts have dealt with this by finding that the plaintiffs currently lack the ability to sue, while reserving the right to determine otherwise in the future when the threat of harm becomes more immediate.

The German Constitutional Court, however, found an innovative way to demonstrate that the threat of harm to the plaintiffs was sufficiently immediate to allow them to sue: the global and national carbon budgets provide that only a finite amount of carbon dioxide can be emitted if global warming is to be limited to well below two degrees Celsius; given the irreversibility of carbon emissions over human timescales, any present consumption of the carbon budget determines the amount of carbon emissions that future generations will have to emit. Because the 2030 targets determine the carbon dioxide later generations will be able to emit, it also determines the restrictions on their behavior (e.g., on their ability to drive cars, take flights, purchase certain products, consume certain foods, etc.) that will be required. As a result, the targets also lock in the rights violations that will ensue from severe restrictions, thereby creating the threat of irreversible harm. That the harm is made irreversible by present action – by present emission reductions that are too lax – makes it an immediate concern, thus allowing the plaintiffs to sue.

Fundamental rights safeguard freedom over time, thereby protecting future generations. In Neubauer, the fundamental issue – as articulated by the Court – was that the failure of the German climate protection law to specify emission reduction targets after 2030 allowed current generations to disproportionately overconsume the finite carbon budget at the expense of future generations, who would, as a result, be forced to severely restrict their behavior.

According to the Court, fundamental rights exist to constrain present generations and the present government from behaving in a manner that would significantly interfere with future generations. This time-sensitive dimension of fundamental rights requires the state to “safeguard freedom over time and to distribute freedom opportunities proportionately across generations” (emphasis added).

Applied to this case, fundamental rights as a time-sensitive safeguard of freedom protect the plaintiffs from being left with most of the burden of making the greenhouse gas reductions necessary to protect the climate system. This safeguard of freedom is all the more important, the Court points out, given the lack of power future generations have in the political processes of a democracy.

Applying this understanding to the emission reduction targets laid out by the challenged law, which only provided the emissions cuts required until 2030 (thus allowing present generations to emit lots of greenhouse gases post-2030), the Court found that the law constitutes an “irreversible threat to future freedom.” It poses such a threat because the more emissions that are allowed today, the fewer will be allowed in the future, thus requiring stronger – possibly draconian – restrictions to prevent dangerous scenarios of climate change.

But was this threat to freedom unconstitutional? According to the Court, yes.

Given the role of fundamental rights as time-sensitive safeguards of freedom, the restrictions on behavior necessitated by emission reductions must be distributed proportionately across generations. This, according to the Court, required the challenged law to distribute reduction burdens more or less evenly across generations and over time in order to prevent future generations from one-sidedly bearing the brunt of reduction burdens. Yet, the challenged law failed to do just that by omitting the specific emission reductions required after 2030 and adequate provisions to protect future generations from radical restrictions on their behavior.

As a result, the Court ultimately found that “the legislature has violated fundamental rights because it has not taken sufficient precautions to cope with the potentially very high emission reduction obligations in later periods – due to the emissions permitted by law until 2030 – in a manner that does not violate fundamental rights.”

Carbon emissions have a clear impact on future generations because emissions are irreversible over human timescales. Carbon dioxide, once emitted, can remain in the atmosphere up to 1,000 years, contributing to global warming during its long lifespan. The relative permanence of carbon emissions – from humanity’s perspective, at least – was an important factor driving the Court’s analysis. Recognizing the irreversibility of emissions allowed the Court to make a one-to-one connection: the more carbon emissions present generations consumed, the less future generations will be able to consume. The irreversibility of the emissions, combined with the fact that emissions had to be limited to a finite quantity in order to limit warming to well below two degrees Celsius, trapped future generations. Freeing future generations from “radical abstinence” (or, radical limitations on their behavior) and widening the space that future generations have to maneuver without exceeding the temperature goal required immediate present action, namely the development of more detailed short-term emission reduction targets.

Delaying more ambitious emission cuts reduces the likelihood of technological developments that will ease the transition to climate neutral lifestyles. Those opposed to ambitious climate action often offer a common excuse: present generations shouldn’t burden themselves with significant climate actions because future technology will reduce the greenhouse gas content of the atmosphere and permit low carbon or carbon-neutral development.

The German Constitutional Court takes this argument and turns it on its head. Instead of maintaining that technological development is an argument for delaying ambitious climate action, the Court finds that it’s an argument against delaying such action. Specifically, the Court notes that the technological and social developments that facilitate the transition to carbon neutral – or, “zero carbon” – lifestyles take time. The longer more ambitious emission reductions are delayed and the more urgent preserving the carbon budget becomes, the less time will be available for the technological and societal developments that would ease the transition into carbon neutral lifestyles.

The Court also notes that beginning more ambitious emission reductions earlier provides “necessary planning pressure.” In other words, clearly signaling the need to reduce greenhouse gases in the short-term through concrete and ambitious emission reduction targets increases recognition that the emission of greenhouse gases must end over a specific timeframe, thus increasing the probability that “climate-neutral technologies and behaviour will be quickly established in accordance with this development plan.”

Ambitious climate action that begins presently, therefore, prompts technological and societal development, a reversal of a classic excuse offered by opponents of climate action.

The court declared that the challenged provisions of the German climate protection law were incompatible with the Constitution due to its failure to (1) articulate emission reduction targets beyond 2030 and (2) sufficiently protect younger generations from being strapped with disproportionately severe restrictions on behavior in order to limit warming to well below two degrees Celsius. This declaration of constitutional incompatibility means that the challenged provisions remain in force until the legislature updates the law in compliance with this ruling.

The court ordered the German legislature to update and provide more details for the emission reduction targets and the relevant requirements under the climate protection law for the periods after 2030.

It was left to the German government to take the necessary steps to comply with the ruling and ensure that the country’s climate protection law conforms with the Constitution.

In May 2021 – shortly after the ruling was handed down by the German Constitutional Court – German Chancellor Angela Merkel announced new climate legislation that would increase the ambition of the 2030 target (by requiring a sixty-five percent reduction of GHG emissions compared to 1990 levels), set an emissions reduction target for 2040 (requiring an eighty-eight percent reduction of emissions compared to 1990 levels), and move the climate neutrality target from 2050 to 2045.