On 29 April 2021, the Bundesverfassungsgericht (BVerfG) published its decision that the Federal Climate Change Act of 12 December 2019 (Bundes-Klimaschutzgesetz), establishing national climate targets and annual emission amounts allowed until 2030, violates fundamental rights. The case is part of a growing body of climate cases, in which courts oblige States to reduce emissions more quickly. In the Netherlands, Ireland, and France, judges recently decided that national executives/legislatures failed to take legally required actions.
Do the judges in these cases undermine separation of powers as a time-honoured achievement of modern constitutional democracies in order to force the political branches to take urgently necessary actions?
I argue that this is not the case. Constitutional democracies are committed to an understanding that democratic legitimacy is not necessarily improved by greater majoritarianism. By allocating different functions to the three branches, executive, legislature, and judiciary, separation of powers aims to ensure that the tension between law and majoritarian politics is perpetuated and that neither law nor politics dominates the other. The judiciary has the important function of protecting individual autonomy as a crucially necessary element. After briefly introducing the BVerfG’s climate decision and the Dutch Urgenda case, I reflect on how the courts in these cases exercised their function and gave effect to human rights as a ‘right to justification’.
In the Urgenda case, the Dutch Supreme Court held that the Netherlands violated its duty of care because it did not reduce emissions sufficiently. In the Netherlands, a clean environment is not protected by a binding constitutional state objective. Nor did the Netherlands have a specific climate act or statutory determined reduction targets. The duty to reduce emissions was based on the rights to life and to private and family life, under Articles 2 and 8 of the European Convention on Human Rights (ECHR), and a breach of duty of care by the Dutch State in tort law. Judges in three instances (District Court, 2015; Court of Appeal, 2018; Dutch Supreme Court, 2019) determined that the Dutch State was required to reduce emissions by at least 25 percent by 2020 against 1990 levels.
The Dutch Supreme Court confirmed that ‘the genuine threat of dangerous climate change’ ‘constitutes “real and immediate risk”’, ‘that the lives and welfare of Dutch residents could be seriously jeopardised’ (para 5.6.2), and that the Dutch State was individually responsible ‘to do “its part” in order to prevent dangerous climate change, even if it is a global problem’ (para 5.7.1). The court relied on the 25-40 percent emission reduction target by 2020 formulated by the Intergovernmental Panel on Climate Change (IPCC) for developed countries, necessary for holding temperature increase to below 2°C.
The Dutch Supreme Court emphasised that in light of the grave threat of dangerous climate change to the enjoyment of human rights the principle of effective legal protection in Article 13 ECHR entails that ‘the courts must examine whether it is possible to grant effective legal protection by examining whether there are sufficient objective grounds from which a concrete standard can be derived’ (para 6.4). The Court pointed out that the State’s duty of ‘due diligence’ required substantiation that emissions reduction measures were ‘responsible’ (para 7.2.1). Yet, the Dutch State failed to offer such substantiation.
In the words of the Dutch Supreme Court, instead of providing ‘insight into which measures it intends to take in the coming years, […] the State has confined itself to asserting that there “are certainly possibilities” in this context’ (para 7.4.6). The State acknowledged the fact that ‘any postponement of the reduction of emissions therefore means that emissions in the future will have to be reduce on an increasingly large scale in order to make up for the postponement in terms of both of time and size.’ Postponement makes the necessary measures hence ‘increasingly far-reaching and costly’, as well as ‘riskier’ (paras 7.4.5; 7.4.3). This part of the reasoning demonstrates in particular how the Dutch Supreme Court considered the long-term future in its reasoning.
The BVerfG’s Climate Decision
Different from the Dutch Supreme Court, the BVerfG did not hold that the State violated a positive duty to protect the complainants from the risks of climate change. Neither did it rule that the State failed to satisfy the obligation to take climate action as it arises from German Constitution (Article 20a GG). However, its decision was even more focussed on the future. It held that the challenged legal provisions violated the fundamental rights of the complainants (Article 2 (2) s.1 GG) by irreversibly offloading major emission reduction burdens into the future, namely to after 2030.
The case focused on Germany’s cumulative carbon emissions in light of a national carbon budget. The BVerfG avoided carrying out its own assessment by relying on the temperature goal stipulated in the Climate Change Act – a norm enjoying the usual democratic legitimation of the legislative process (para 209). The Court then translated this temperature goal into a national carbon budget based on the advice of the expert council for environmental questions, which had based its calculations of the national budget on the work of the IPCC establishing a global carbon budget. For climate change, this move towards thinking in terms of total carbon budgets is crucial. Emissions, once released into the atmosphere, have a long-term impact on the climate. Hence, logically, the total amount of emissions is determinative of our climate and not the reduction percentage in a given year.
In light of this current state of science, the Climate Change Act failed to oblige Germany to do its share for meeting the express goal of keeping global temperature to ‘well below 2°C and to pursue efforts to limit the temperature increase to 1.5°C’. In order to stay within the national carbon budget, which would be nearly exhausted in 2030, the young complainants and future generations would have to reduce emissions at an almost unimaginable pace.
While the legislature enjoys a particular prerogative to specify the emission reduction objectives the requirement of climate protection under Article 20a GG limits the legislature’s margin of discretion (para 205). The day-to-day political process, with the short intervals between elections, makes it structurally difficult to pursue long term ecological interests (para 206). It is therefore the task of the judiciary, not to concretise open textured constitutional norms in the place of the legislature but to ensure that these norms’ outer boundaries are respected.
Including ten explicit references, the BVerfG relied heavily on the Urgenda case. Perhaps the German ruling would not have been possible had not the decision of the Dutch Supreme court blazed the trail before. The BVerfG stayed in safer waters as concerns reproaches in terms of separation of powers. It did not (have to) construe a positive duty to protect but identified a rights violation because an interference with fundamental freedoms could not be justified. By doing so, the Court protected individual autonomy, including into the future.
Right to Justification
Human rights play a complex role in constitutional democracies. This role is linked to their very origin in a right to justification as explicated by Rainer Forst (p. 54, 66-67, 76). They are a language of critique, which protects citizens from unjustified societal and political circumstances of oppression. Those exercising public power in a way that restricts rights have to offer their citizens legitimate reasons.
This is where separation of powers and the function of the judiciary comes in. Judges should – pursuant to formal rules – oblige the policy-maker to justify her choices in light of their impact on human rights. One driving question in the analysis of the suitability of any specific model of separated powers should therefore be whether it establishes a process of reason-giving.
In a constitutional democracy, the government, when asked in court to justify its actions, is formally legally obliged to do so. In Urgenda, the State failed to offer such justification. For this reason, it was ordered to develop a different policy, one that meets what the government had itself repeatedly acknowledged to be the absolute minimum to prevent dangerous climate change (Sections 7.2.1 to 7.2.10 and 7.4.1). It is precisely the function of the judiciary to demand justification for policies that interfere with human rights. This is a confirmation of a working system of separation of powers.
In the German case, the applicants claimed that the Climate Change Act did not comply with an autonomous obligation to justify legislative action (‘Rationalitätspflicht’) (paras 38, 71, 73). The BVerfG, however, simply stated, as matter of constitutional analysis, the lack of justification for the future interference with fundamental freedoms as a result of not reducing emissions sufficiently in the current decennium (paras 182-265). It did not require the legislature to offer any reasons beyond meeting the substantive requirements of fundamental freedoms under the German Constitution (para 239-241). The constitutional conformity of laws depends on the outcome of the legislative process and not the reasoning.
Nonetheless, the BVerfG enforces the right to justification, by taking the fundamental freedoms of German residents after 2030 as a language of critique and requiring the legislature to respect their individual autonomy. While imposing limits on the discretion of the present legislature the BVerfG protects the future space of politics. It ensures that this room for political maneuver of future generations is considered in today’s political deliberation.
Finally, the BVerfG directly strengthened separation of powers and political deliberation. It imposed on the legislature an obligation to decide on the fundamental choice of distributing the national budget itself. The decision on when to reduce emissions by how much cannot be left to the executive (para 259-263).
Separation of Powers in Action
The judges in the two discussed climate cases did not substitute a political decision with their own. They did not balance all involved interests. The latter is the role of the executive and the legislature, not the judiciary.
In different ways, the Dutch Supreme Court and the BVerfG prohibited the State/executive (Urgenda) and the national legislature (German case) from disregarding scientific consensus. Both courts pushed those exercising public power to better justify their choices in light of such established knowledge and protect the individual autonomy of future generations.
Both judicial decisions confirm a working system of separation of powers. They strengthen the processes of deliberation and reason-giving and create the conditions for greater legitimacy of the exercise of public power. In both cases, judges protected the quality of political decision-making, including – in the case of the BVerfG – expressly into the future.