Alternative Editorial: Freeing the Future

While the UK political media has been focused on important questions such as the cost of ministerial wallpaper, we had to look further afield for evidence that in Week 154 of The Shift, anything was indeed shifting.

We didn’t have to look far. In Karlsruhe, Germany, the Federal Court of Justice has just ruled that it is now illegal to put off making drastic cuts in carbon emissions to sometime in the future. In other words, any politicians that are hoping to win votes by singling out industries for slower change are now breaking the law.

Just as you can’t lose weight by going on a diet tomorrow, you will now get fined – or maybe worse – for effectively dodging responsibility and leaving the hard work to the next generation.

While some of the UK papers buried this news and reported it as a ‘constitutional issue’ we prefer to share some of the excitement with which it was reported in Germany. This from Zeit online:

No-one can get away with it anymore!

The constitutional judges in Karlsruhe have made climate neutrality binding. Their verdict is spectacular: intergenerational justice is suddenly no longer a phrase.

A commentary by Heinrich Wefing

It is a spectacular verdict handed down by the Federal Constitutional Court in Karlsruhe. Spectacular in substance and in the possible effects: climate neutrality now has, practically speaking, constitutional status. Intergenerational justice is suddenly no longer a phrase but has hard legal and political currency. And, above all, for the first time, the court is mobilizing the future constitutionally for the debates of the present. The excitingly sparkling keyword for this is now: "intertemporal freedom". 

In response to the lawsuit by various climate protection organizations, including Fridays For Future, and various citizens, the judges have declared “it is not appropriate to shift the CO2 reductions as agreed in Paris into the future, in order to spare the present from politically inconvenient, drastic measures”.

The Climate Protection Act had stipulated that Germany should become climate neutral by 2050, in accordance with the Paris agreements. According to the law, 55 percent of the necessary CO2 savings are to be achieved by 2030, and specific savings targets have been set for various sectors of society – but only to be started by 2030, not earlier.

Climate activists at a rally organized by the Fridays for Future movement in Berlin in September.Credit...Omer Messinger/Getty Images

The legislator had left open the necessary further reductions for the period between 2031 and 2050, although (or precisely because) they will be the most difficult to achieve.

The judges have now declared this to be unconstitutional. The use of freedom today must not be organised without regard for the freedom of the next generation.

The fact that scarce goods are distributed fairly, at least in a fair trial, is a daily routine under the rule of law. This applies to study places, currently to vaccination doses and much more. The new and, yes, quite revolutionary thing is that the court no longer merely demands fairness in the distribution within the present.

Rather, it extends the measure of justice into the future: the bit of CO2 that we in Germany are still allowed must be distributed fairly over the years and generations. Not only rhetorically in any campaign speeches, but hard and legally through secure laws. 

How exactly these injunctions are to be organised is left to the legislature by the court. The judges are clearly trying to protect themselves against the accusation that they are in breach of Parliament, and have written too precisely what is a matter for the democratically elected Members of Parliament.

In fact, the concrete, very practical consequences of the judgment for the Federal Government are, for the time being, quite manageable. The court in Karlsruhe merely requires that the savings steps for the years 2031 to 2050 be determined, not only in 2025, as previously planned, but already by the end of 2022. And not even concretely and irrevocably, but with continuous checking and updating guaranteed.

This is quite mild compared to other judgments of the Constitutional Court and still leaves quite a lot of time for a new federal government to dodge its current responsibilities. It is also significantly less than other courts in European neighbouring countries have enforced as climate action, in the Netherlands, for example.

However, the enormous impact of today's decision is less in the legislative detail and more in the fact that there is now an enforceable constitutional principle of (at least halfway) fair burden-sharing between the present and the future. It is not yet clear what might follow.

Scattered throughout the verdict are outstanding phrases  which are likely to be quoted extensively in future debates and lawsuits before other courts. The state must "protect people's lives and health from the dangers of climate change," the judges write. "In view of the major dangers posed by ever-increasing climate change (...) caused by heatwaves, floods or hurricanes, the State is obliged to do so both to the people living today and to this end in the light of future generations."

Finally, perhaps most spectacularly, "only when greenhouse gas emissions are limited to climate-neutral levels can global warming be stopped."

The judges in Karlsruhe have made climate neutrality constitutionally binding. From now on, no one can get away with it.

While the reverberations of such a ruling will be felt throughout the political and economic systems of Europe, the most important audience will be citizens and activists. Unless those in power are held to account, the temptation post-Covid to welcome back business as usual (while promising to do better once we recover) is huge.

Barclays Bank’s Jes Staley is predicting the biggest economic boom since the aftermath of World War 2 – mostly in the form of spending on consumer goods that fuel the growth economy destroying the planet.

The role of activists such as Extinction Rebellion and Climate Emergency become crucial in challenging business and government in court. At the same time, all our willingness to take more responsibility for our carbon budget will shift the dial for businesses alert to social and behavioural change.

And whether the jurisdiction is European or British, it’s huge to have such a massive legal precedent to back up the demands for no more climate compromises. We are not so far away, even under a Brexit which still has to considerably harmonise with European practice, that the UK can ignore this ruling. These are momentous times.