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Germany’s Federal Constitutional Court and climate law: The hope for intergenerational justice

Dana Pjanic | Climate Change Fellow

In a recent landmark ruling declaring Germany’s climate change law partly unconstitutional, the Federal Constitutional Court seems to be asking, ‘How can we ensure a better future for following generations?’ The complaint about Germany’s climate policy was brought to the court by a group of nine young people, who had been outraged by the way the proposed emissions reduction threatened their right to a humane future.

Prior to the ruling, Germany’s climate protection act had committed to cutting greenhouse gas emission by 55% by 2030 and aiming to achieve net zero emissions by 2050, similar to the rest of the EU. At the time of its approval in 2019, the law was criticised for its lack of ambition, and the way that it left too much of the emissions reduction burden to the years after 2030. On March 24th, the Federal Constitutional Court supported this view, ruling that postponing emissions reduction efforts will jeopardise fundamental freedoms and rights for future generations. Additionally, the judges demanded a clearer and more detailed policy roadmap to achieving net-zero emissions in the years after 2030.

The German Government has acted quickly in response, already raising emissions reductions to 65% by 2030 and aiming for carbon neutrality by 2045.

It is discomforting to acknowledge that Germany’s initial climate policy, to reach net-zero by 2050, were found to be radically inadequate by the courts when Australia has not yet formally committed to any type of net-zero emissions targets. Prime Minister Scott Morrison’s intention to meet climate change ambitions through the ‘commercialisation of low emissions technology’ seems to be the type of trap the Federal Constitutional Court warned would force future generations to ‘engage in radical abstinence’ in order to curb global warming. However, Australia also has a rich history of using the law to challenge polluters and idle governments, with Melbourne Professor Jaqueline Peel calling the country a ‘hotspot’ for climate litigation. In fact, she stated that only the US has more cases in this area of the law.

What has been the impact of climate litigation in Australia? While the nation is yet to see a case that redirects policymaking at the federal level, there are several ongoing lawsuits that could strengthen climate activism within the government. For example, a Melbourne law student recently sued the Australian Government for failing to disclose the way that climate change threatens the security of superannuation funds and other safe investments. The student, Katta O’Donnell, alleges that this lack of transparency constitutes a breach of the Commonwealth’s duty of disclosure and has misled investors of government bonds.

One common element between Ms O’Donnell’s lawsuit in Australia with that of the activists’ in Germany, is that both cases were brought by relatively young people. It is not hard to see why this might be the case when both cases revolve around issues that will only come to the fore in a decade or so, when many of the politicians and leaders responsible for these policies will be out of office. In 2019 at the UN Climate Action Summit, climate activist Greta Thunberg told a room full of the world’s national representatives, ‘The eyes of all future generations are upon you’. However, though young people may be worried about inheriting the problems created by their elders, with little political or decision-making power, it may seem like there is little they can do to encourage change. At the time of Greta’s speech to the UN, her weekly school strikes had been taking place for over a year and had been joined by millions of people, and yet her message to world leaders remained the same, ‘You are failing us’. It is here where the importance of climate litigation as a tool for intergenerational justice can be seen, in that it can be wielded by anyone, of any age.

However, can Australians expect to see the nation’s lack of action on climate change be declared unconstitutional, like the actions of the Federal Constitutional Court in Germany? According to Professor Margaret Young and Dr Laura Schuijers of Melbourne Law School, this is unlikely due to the limited rights that are afforded by the Australian Constitution. While in Germany, the plaintiffs’ claim relied heavily on articles of the constitution, named ‘Basic Law’, that protect the right to life and personal freedom, in Australia the lack of a Bill of Rights would complicate an attempt to do the same.

Once again, it is discomforting to learn that Australia is not only one step behind in terms of climate policy but also in the legal avenues and constitutional protections available to citizens wishing to hold their government accountable. However, if we continue to see young people engaged and passionate about the issues raised by global warming, there are plenty of reasons to think that this disappointing situation will soon be a distant memory of the past.

Dana Pjanic is the Climate Change Fellow for Young Australians in International Affairs.


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