Summary
Climate change is a global issue that requires comprehensive climate education, intending to protect the fundamental rights of young generations. It is a question of distributive justice. The dialogue between legal scholars is driven by increasing climate change litigation, aimed at prompting state authorities to adopt adequate climate protection measures. An interdisciplinary approach and technological innovation can achieve a good balance between the various conflicting interests.
Introduction
This contribution is a reply to the impressive blog of the same title posted by Chiara Armeni. I examine the three responsibilities of legal scholars highlighted in her post from a German perspective.
The German mindset on climate change is special, since the green party (Die Grünen) gained 14% of the vote in the last parliamentary elections (2021) and is a strong partner in the governing coalition, but there are “mantras” such as the almighty automobile (a leading sector of German industrial production) that purportedly prevent the imposition of speed limits on motorways! However, it cannot be denied that climate change is a hot topic of scholarly and general discussion in Germany, as the blockade of Berlin airport by young activists on November 24th 2022 demonstrated.
All education is climate education: its transnational and intertemporal dimension in a perspective of intergenerational justice
Climate change is a global issue. It is the political and social question of the 21st century! In light of current European, national and international developments and the fundamental rights of young generations, teaching climate change is an essential task of legal scholars.
The new geopolitical situation arising from Russia’s invasion of Ukraine has made the transition to net zero urgent, in that Europe needs to forge energy independence from unreliable suppliers. An important step taken before the war, in the framework of the NextGenerationEU recovery plan, devoted 30% of EU funds to fighting climate change (the highest share of the European budget ever). Now with the programme REPowerEU, the European Commission plans to make Europe independent of Russian fossil fuels by 2030, thus accelerating the green transition.
In the meantime, there is broad awareness that if man-made climate change is not stopped or at least mitigated, the aftermaths for humanity and the earth’s system will be catastrophic. Permafrost soils, polar ice and the Amazon rainforest will disappear. Once the emission budget is consumed, young generations will have to face enormous restrictions on their freedom of action (Max-Jürgen Seibert).
In March 2021, the German Federal Constitutional Court (BVerfG) ruled that the state had a “duty of care” and ordered that the provisions of the Federal Climate Change Act of 2019 (Bundes-Klimaschutzgesetz – KSG), governing national climate targets and the annual emission quotas allowed until 2030, were incompatible with fundamental rights, insofar as they specified further emission reductions after 2030 insufficiently. The provisions infringed the fundamental rights of the (incredibly young) complainants, because they postponed major emission reduction burdens to periods after 2030, violating the proportionality principle. As a consequence, future generations would be under a much greater burden than before 2030 to implement an effective climate protection policy. The Court highlighted the right to an “ecological minimum standard” (ökologischer Mindeststandard) and a new dimension of the state duty of care, delineating the concept of “intertemporal protection of freedom” (intertemporale Freiheitssicherung).
Many fundamental rights are therefore affected by emission-reduction obligations since almost all areas of human life are influenced by greenhouse gas emissions. As highlighted by the Federal Constitutional Court, climate protection has many dimensions: it involves the fundamental right to life, physical integrity, freedom of action, and professional freedom. It also involves the protection of property, as the German “flood of the century” in July 2021 showed. The flood demonstrated, within the national borders, that climate change brings natural disasters! The Federal Constitutional Court, therefore, identified climate protection as a “right to a future worthy of a human being” (Recht auf menschenwürdige Zukunft).
In this perspective, the tension between the national and the supranational dimension emerges, since the climate crisis is caused by global behaviour and the problem of climate protection must be tackled at the supranational level. Forty years ago, the desire to counteract short-sighted attitudes and promote a global view on this issue led to the report of the World Commission on Environment and Development entitled “Our Common Future” (Brundtland Report, 1987) and the Rio Declaration of the United Nations (1992). Preserving a viable environment was described in these documents in terms of the constitutional theory of intergenerational equity. This concept, originally associated with providing effective social security systems, has thus become part of a broader sustainability concept (Wolfgang Kahl). Likewise in his book A theory of justice, John Rawls identifies responsibility for the next generations as a question of distributive justice.
At the same time, however, the ruling of the Federal Constitutional Court mentions that the inaction of other states cannot be used to justify a lack of commitment by German national institutions. Even if the German contribution to global warming is deemed to be about 1.8% of the total, this should not induce the country to abdicate all its commitments. The duty to protect fundamental rights does not stop at the country’s national borders but extends to persons residing abroad. In this sense, the Sharm El-Sheikh Climate Change Conference (COP 27) of November 2022 introduced “Loss and Damage” funding to restore property and infrastructure damaged by climate change in vulnerable countries. This creates a new concept of “burden justice” (Belastungsgerechtigkeit), even if the many causes of damage connected with climate change make it difficult to attribute precise responsibilities (Jörg Berkemann).
Rethink our legal expertise as climate law expertise
The judgement of the German Federal Constitutional Court is not an isolated case: climate change litigation in national and European Courts is an increasing global trend. Legal expertise is therefore required to prompt state authorities to adopt effective climate protection measures. In the Urgenda Foundation (2019) judgment, the Dutch Supreme Court condemned the Dutch State to reduce greenhouse gas emissions by 25%, compared to 1990 levels, by 2020. A similar case brought before the Irish Supreme Court (2020) by the environmental group “Friends of the Irish Environment” (FIE) argued that the “National Mitigation Plan” of greenhouse gas emissions was inconsistent with the law and with Ireland’s human rights commitments, as it was not striving to achieve substantial emission reductions in the near term. The German Federal Constitutional Court also mentioned non-European rulings, such as the “Thomson” case in New Zealand and the “Juliana” case in the United States. Its analysis has helped focus attention on the crucial importance of the international legal dimension of climate protection(see more in detail Andrea de Petris). In addition, the recent case, decided on October 11th 2022 by the ECtHR, Pavlov and Others v Russia (Application no. 31612/09) and other pending cases (see here) will hopefully entail positive state obligations.
This process of awareness of the interdependence between human behaviour and regulation of environmental policies is increasingly also involving state policies and legislation. To mention an example, two months ago, the Spanish Parliament passed law no. 19/2022 that recognizes the legal personality of the “Mar Menor” (a Mediterranean saltwater lake in Murcia). The law confers rights on the lake and empowers anyone to take legal action on its behalf, in the wake of uncontrolled building and fertilizer use in the surrounding area that caused a mass die-off of fish in this unique natural paradise (see here). Legal expertise in this field is undergoing a paradigmatic shift: the well-known anthropocentric approach, where environmental protection is for the benefit of man, is making way for an ecocentric approach, where environmental care focuses on protecting nature itself.
Take interdisciplinarity seriously
While legal instruments have an essential role in enforcing climate protection, technological solutions in this field require the active commitment of other disciplines. Universities should implement a consistent strategy of energy optimization in the planning and modernization of their buildings. Digitalization and regulation of heating (reduction of temperatures at night, smart thermostats), retrofitting of buildings, greater use of renewable energy and the optimization of university teaching via digitalization all have enormous potential for energy saving. In the wake of the Ukrainian crisis, the German federal government has issued an energy-saving regulation (Energieeinsparverordung) which among other things envisages less heating of university buildings and other energy-saving measures: lecture halls cannot be heated above 19°C in winter and areas such as corridors and foyers are preferably not heated. The goal is to save 20% on energy consumption. This is only a first step (see the interview of Prof. Lamia Massari Becker). Much more can be done!
In this context, technological innovation combined with effective legal solutions can lead to consistent regulation. Legal scholars should strive to achieve a good balance between the different interests at the interface between energy research and energy policy, and promote a mixed strategy of “mitigation and adaptation”.
In conclusion, man-made global warming is a gradual but irreversible development that must be at the core of every decision-making process. Today it is a recurring topic in general and scholarly discussion in Germany, although theory and practice often speak different languages. “Taking rights seriously” (Ronald Dworkin) implies recognition of a fundamental right to climate protection (Klimagrundrecht) as a new and cross-cutting legal standard, not only in the eyes of German doctrine (Walter Frenz). It requires a dialogue between legal scholars and courts of justice to allow the general affirmation of climate protection in its transnational and intertemporal dimensions.
Posted by Cristina Fraenkel-Haeberle, Deutschen Forschungsinstitut für Öffentliche Verwaltung
Suggested citation: C. Fraenkel-Haeberle, “The responsibility of legal scholars in a time of climate change”, REALaw.blog available at https://realaw.blog/?p=2220
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