Climate protection is a human right

Last week, Germany’s Constitutional Court reported that it had found climate protection to be a basic human right. That ruling sets a vital new precedent, because it stands on the foundation of a need to avoid preventable harm. The legal infrastructure for climate action connects to basic rights, because evidence shows climate disruption constitutes potentially devastating but preventable harm.

Climate impacts are now pervasive, affecting all regions of the world.

Climate protection is a basic right, because we are running out of time to prevent catastrophic disruption of vital systems, including water and food supplies.

All of this puts the German ruling in context, because the obligation to reduce climate vulnerability is now recognized as part of the government’s public service mandate—not only to Germans now, but also to future generations. The ruling is historic in its recognition that the state is bound by law to:

to safeguard the freedom protected by fundamental rights over time to assign the proportionate distribution of opportunities for freedom over the generations.

The ruling importantly states that the state is bound by law to:

treat the natural foundations of life with such care and to leave them to posterity in such a condition that future generations could not continue to preserve them only at the price of radical abstinence of their own.

The ruling recognizes that rights—and the corresponding imperatives for government action—extend through time, finding: 

The protection of future freedom also requires that the transition to climate neutrality be initiated in good time. In concrete terms, this requires that transparent standards for the further development of greenhouse gas reduction are formulated at an early stage, which provide orientation for the necessary development and implementation processes and give them a sufficient degree of development pressure and planning certainty.

There are now major efforts ongoing to realign finance and investment, in the public, private, and multilateral sectors, with low-carbon development and climate resilience:

These kind of efforts are critical, because they have the power to catalyze economy-wide realignment of finance and investment with climate protection imperatives. The German ruling, however, also specifies that climate protections and emissions reduction timelines must be enacted and enforced in law, not only as de facto outcomes of enabling policy actions.

This news comes just weeks after Canada’s highest court upheld the nation’s federal climate change law and carbon pricing backstop policy, noting that “global warming causes harm beyond provincial boundaries and that it is a matter of national concern”. 

The German ruling also has interesting connections to American judisprudence:

  • The US Supreme Court has repeatedly recognized (in 2007, 2011, and 2014) the duty of the Environmental Protection Agency to limit harmful carbon pollution.

  • The 2014 majority opinion was written by Justice Antonin Scalia, who disagreed with dissenting justices over how broad the EPA’s discretion was.

  • Taken together, the majority opinion, along with two separate opinions, each concurring in part and dissenting in part, add up to 9 justices out of 9 recognizing EPA’s climate authority.

Finally, it is worth noting the German ruling recognized the need to preserve both freedom and the “natural foundations of life” for future generations. This language echoes the Preamble of the Constitution of the United States, which says the Union of states was established to “promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…”

Last January, a dissenting opinion in the lawsuit brought by Kelsey Juliana and other youth plaintiffs against the federal government of the United States opened space many believe will be the ultimate legacy of the case. Judge Staton’s historic dissenting opinion recognized the plaintiffs’ claims “adhere to a judicially administrable standard”, and that: 

Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction.

The German court’s ruling also finds the failure to provide climate protection is “justiciable”, both now and in the future. It requires lawmakers to act, and to base their work—in service of everyday security and wellbeing, across generations—on the best available scientific evidence. Science tells us we need to cut emissions by 50% by 2030, to avoid the worst.


UPDATE, May 6, 2021

Germany acts to raise ambition in response to high-court ruling on climate rights

Isabelle Gerretsen reports for Climate Home News:

Finance minister Olaf Scholz and environment minister Svenja Schulze announced the proposed targets to press in Berlin on Tuesday: a 65% emissions reduction by 2030, 85-90% by 2040 and net zero emissions by 2045, all compared to 1990 levels. Previously, the goals were 55% by 2030 and climate neutrality by 2050. 

The quick action by government is an acknowledgment of the Constitutional imperatives set by the Court. It also marks one of the most visible acts by government to recognize that intergenerational equity is binding legal principle, actionable through the courts, and a mandate for action.


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