The Climate Decision of the German Constitutional Court and Its Implications on Soil Management

Abstract

On 24 March 2021, Germany’s highest court found the German Climate Change Act to be partly unconstitutional because it did not sufficiently mitigate the burden put on the future exercise of freedom rights by the emissions allowed until 2030. The ruling represents a milestone for climate protection in Germany and also deserves attention beyond Germany’s borders. In this ruling, the Constitutional Court sets a strong signal for more climate change, making clear that the protection of the climate is a constitutional obligation. Because of the close interactions between soil and climate change, the decision also recalls the importance of a better soil protection. This chapter summarizes the essential statements of the Court and analyses the consequences for soil protection.

1 The Climate Decision of the German Constitutional Court of 24 March 2021

In a groundbreaking decision, the German Federal Constitutional Court (hereinafter referred to as the “Constitutional Court” or “Court”) held that Germany’s legislation on climate protection was partly unconstitutional because it was insufficient to protect future generations.¹ It is not only this result that explains why this ruling has received so much attention; the court’s statements on the existence and scope of a constitutional duty to protect the climate also deserve to be noticed. In the following, the procedural background of the decision is explained first (Sect. 1.1). The chapter then summarizes the most important core statements (Sect. 1.2) and outlines the amendment of the German Climate Change Act that was passed in response to the ruling (Sect. 1.3).

1.1 Background

The decision of the Court was based on four constitutional complaints: The first complaint was filed in 2018 by eleven people living in Germany aged between 18 months and 86 years and two environmental associations. In 2020, another complaint was added by people living in Bangladesh and Nepal and two further complaints by predominantly adolescents and young adults from Germany; each of the complaints was supported by environmental NGOs.² In all four constitutional complaints the core question was whether or not Germany had taken sufficient measures to protect the climate. This aimed at the German Climate Change Act, which was enacted in December 2019 to set out greenhouse gas reduction targets.³ The Climate Change Act stipulated that greenhouse gas emissions were to be reduced by at least 55% by 2030 compared to 1990.⁴ This target was to be ensured by complying with sectoral annual emission ceilings set out in Annex Two until the year 2030.⁵ For the period after 2030, the Climate Change Act did not provide for any reduction targets, but merely stipulated that the German government was to set annual emission levels by statutory order in 2025 for further periods after 2030.⁶

1.2 Key Findings

In its decision of March 24, 2021, the Court declared the constitutional complaints to be partially well-founded. The judges from Karlsruhe found that the Climate Change Act places an excessive burden on future generations because it does not sufficiently reduce emissions until 2030 and does not make specific provisions for greenhouse gas emission reductions after 2030. But it is not only this result that has contributed to the description of the decision as “historical” or “revolutionary”.⁷ It also contains numerous important clarifications on the existence and scope of constitutional obligations to protect the climate. The most relevant statements are summarized below:

1.2.1 Admissibility

Where the complainants were natural persons, the constitutional complaints were found to be admissible. The Constitutional Court also confirmed standing for the complainants who live in Bangladesh and in Nepal as the validity of German fundamental rights vis-à-vis these complainants did not appear to be ruled out from the outset.⁸ However, the constitutional complaint of the two environmental associations were rejected by the Court as inadmissible as the German Constitution (Grundgesetz—GG) and constitutional procedural law did not give them standing for a constitutional complaint.⁹

1.2.2 Climate Change Related Duty to Protect

It is established in German constitutional law for a long time, that the state must not only refrain from violating basic rights but must also actively protect people’s fundamental rights from certain risks and dangers.¹⁰ In its decision from 24 March 2021, the Federal Constitutional Court for the first time confirms that such a duty to protect also exists with regard to the risks of climate change.

1.2.2.1 Existence of a Climate Change Related Duty to Protect

The Court confirms that the fundamental right to life and physical integrity in Art. 2 (2) of the German Constitution imposes on the state an obligation to actively protect against risks posed by climate change.¹¹ This obligation lies on the state not only with regard to people living now, but also with regard to future generations¹² and possibly also with regard to people living abroad.¹³ The Court clarifies that the duty to protect against the risks of climate change obliges the state on the one hand to take steps that contribute to stopping global warming. On the other hand, the state must take positive measures aimed at alleviating the consequences of climate change (“adaptation measures”), where climate change is not preventable or has already taken place.¹⁴ The Constitutional Court also confirms that the state has a duty to protect property against the risks of climate change arising from the fundamental right to property in Art. 14(1) of the German Constitution.¹⁵

1.2.2.2 No Violation of the Duty to Protect

However, after having affirmed the existence of a climate-related duty to protect the Court in the end denies a violation of this duty by the German state. In line with its established case law, the Constitutional Court grants the state a large margin of discretion when fulfilling its duty to protect. A violation of a duty to protect could only be established if the regulations and measures taken were obviously unsuitable or completely inadequate to achieve the required protection goal, or if they would fall considerably short of the protection goal.¹⁶ The Court clarified that such an evident breach of the duty to protect could for example be affirmed if the state “failed to pursue the goal of climate neutrality”¹⁷ or if it “allowed climate change to simply run its course”.¹⁸ Not striving for climate neutrality and doing nothing would thus be unconstitutional. Since the German Climate Change Act aimed according to its Section 1 at climate neutrality and at limiting global warming at “well below 2 °C and if possible 1.5 °C”—as a reference to the temperature target in Art. 2 (1) a Paris Agreement—the Court denied such an evident disrespect of the duty to protect. However, the Court indicated that new scientific evidence, especially in view of the danger of exceeding tipping points, might make it necessary to aim at a more ambitious temperature target such as limiting global warming to 1.5 °C above pre-industrial levels.¹⁹ In view of the findings of the IPCC’s Sixth Assessment Report published after the judgement in August 2021, that climate change is occurring faster and with greater consequences than previously assumed,²⁰ the question arises as to whether this necessity has now already been confirmed.

1.2.3 Obligation to Protect the Climate from Art. 20a

The Constitutional Court derives a constitutional obligation for the state to protect the climate not only from fundamental rights buts also from Article 20a of the German Constitution. This provision on the “Protection of the natural foundations of life and animals” states:

Mindful also of its responsibility towards future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.

1.2.3.1 Justiciable Obligation to Achieve Climate Neutrality

Art. 20a of the German Constitution has so far played only a minor role as a so-called state objective provision. It does not entail subjective rights and thus cannot be invoked by individuals directly.²¹ In its decision from 24 March 2021, the Constitutional Court however attaches considerable importance to this norm and declares it to be one of the Basic Law’s “elemental precepts“, which must necessarily be respected by climate regulation.²² The Court derives from the provision of Art. 20a German Constitution an obligation to take climate action and—in particular—to achieve climate neutrality.²³ Although this obligation does not take absolute precedence over other interests, it must be accorded increasing weight as climate change intensifies.²⁴ Important from a legal dogmatic point of view is the clarification by the Court, that Art. 20a is a justiciable legal provision. That means that the respect of Art. 20a is—despite the leeway the legislator has in specifying the climate protection mandate—subject to review by the Constitutional Court.²⁵

1.2.3.2 International Dimension of Climate Mandate

Highly relevant is also the statement of the Court, that the climate action mandate enshrined in Art. 20a of the German Constitution possesses a special international dimension: Art. 20a obliges the state to “involve the supranational level in seeking to resolve the climate problem”.²⁶ The state may not “evade its responsibility here by pointing to greenhouse gas emissions in other states”. On the contrary, the particular reliance on the international community here gives rise to the “constitutional necessity to actually implement one’s own climate action measures at the national level” and “not to create incentives for other states to undermine the required cooperation”.²⁷ This is a clear rejection of the popular excuse that one state alone cannot effectively combat climate change.

1.2.3.3 Paris-Objective “Currently” Compatible with Art. 20a

The Constitutional Court then deals with the question whether the level of ambition chosen in the German Climate Change Act is compatible with the constitutional obligation to protect the climate. The Court clarifies that Art. 20a GG itself does not contain specific greenhouse gas reduction targets, but rather places the determination of such targets entirely in the hands of the legislator, who has considerable leeway in specifying the climate protection mandate. Parallel to his remarks on the duty to protect, the court states that the legislator has “currently” not exceeded this leeway, when referring in the Climate Change Act to the goal to limit global warming to “well below 2 °C and preferably to 1.5 °C above pre-industrial levels”.²⁸ The Court however highlights, that “new and sufficiently reliable findings on the development of anthropogenic global warming, its consequences and controllability, might make it necessary to set different targets within the framework of Art. 20a GG, even when taking the legislator’s decision-making leeway into account.”²⁹ In view of the new findings of the IPCC, it seems questionable whether it would not be necessary to pursue the more ambitious goal of limiting global warming to 1.5 °C (see above under Sect. 1.2.2.2).

1.2.3.4 Budget Approach

Based on the finding, that the temperature target of “well below 2 °C and if possible 1.5 °C” is (at least currently) compatible with Art. 20a GG, the Court analyses in a next step whether the emission targets of the Climate Change Act are compatible with this temperature goal. Here the Constitutional Court resorts to a budget approach. As there is an approximately linear relationship between CO₂ emissions and the global temperature increase, the temperature goal can in principle be converted into a remaining global CO₂ budget, from which Germanys share can be derived.³⁰ This national CO₂ budget, here 6.7 gigatons, must according to the Constitutional Court in principle be respected: Although it cannot serve “as an exact numerical benchmark” for constitutional review due to scientific uncertainty, the legislator has a “special duty of care”, which requires to even take account of mere indications pointing to the possibility of serious or irreversible impairments, as long as these indications are “sufficiently reliable”. The law must therefore “take into account the IPCC’s estimates on the size of the remaining global CO₂ budget and its consequences for remaining national emission budgets”.³¹ This budget approach is the crucial basis for the court’s central finding that inadequate emissions regulations interfere with future freedom (see below under Sect. 1.2.4).

In the end, the Federal Constitutional Court however shied away from confirming a violation of Art. 20a GG. Although the national emission budget of 6.7 gigatons would already have been exhausted by 2030 with the emission regulation at stake, the Court denied a breach against Art. 20a GG with regard to the uncertainties presently involved in the budget-calculations and the fact that the remaining budget would not actually be “overshot”.³²

1.2.4 Disproportionate Burdens on the Complainants’ Future Freedom

Based on an entirely novel rationale, the Constitutional Court nevertheless found the Climate Change Act to be unconstitutional, because it did not sufficiently contain the risk of future infringements of fundamental freedom rights and thus violated the principle of proportionality. This is the most surprising and novel part of the judgement.

1.2.4.1 Advance Interference-Like Effect on Future Freedom

As a starting point, the Court highlights that the decision of the legislator to allow the amounts of CO₂ to be emitted until the year 2030 as specified in the Climate Change Act has an “advance interference-like effect” (so called “eingriffsähnliche Vorwirkung”) on the freedom of the complainants.³³ This advance effect on future freedom is based on the consideration, that almost any use of freedom is associated with CO₂ emissions. At the same time, global warming must—as the Court derived from the duty to protect and Art. 20a GG—be imperatively be limited to at least “well below under 2 °C and if possible 1.5 °C”, what requires climate neutrality and compliance with a remaining CO₂ budget. And here is the dilemma since, the more CO₂ emissions are allowed until 2030, the less may be emitted in the future and the more drastic the future restriction of freedom will be. Provisions that allow for CO₂ emissions in the present thus constitute an “irreversible legal threat to future freedom”.³⁴ In the words of the Constitutional Court, “the restrictions on freedom that will be necessary in the future are thus already built into the generosity of the current climate change legislation. Climate action measures that are presently being avoided out of respect for current freedom will have to be taken in future – under possibly even more unfavourable conditions – and would then curtail the exact same needs and freedoms but with far greater severity.”³⁵ The Court highlights that the amount of time remaining is a key factor in determining how far future freedom will have to be restricted.³⁶ If much of the CO₂ budget were already depleted by 2030, there would be a “heightened risk of serious losses of freedom because there would then be a shorter timeframe for the technological and social developments required to enable today’s still heavily CO₂-oriented lifestyle to make the transition to climate-neutral behaviour in a way that respects freedom”.³⁷

1.2.4.2 Necessity of Precautionary Measures That Respect Fundamental Rights

In order for this risk of future losses of freedom to be justified under constitutional law, emission provisions must firstly be compatible with Art. 20a as one of Basic Law’s elemental precepts (which was narrowly confirmed, see above under Sect. 1.2.3). Secondly, the provisions must not place disproportionate burdens on the future freedom of the complainants.³⁸ With regard to the second requirement of proportionality, the Court clarifies that it follows from the principle of proportionality that one generation “must not be allowed to consume large portions of the CO₂ budget while bearing a relatively minor share of the reduction effort, if this would involve leaving subsequent generations with a drastic reduction burden and expose their lives to serious losses of freedom”—something the complainants called an “emergency stop”.³⁹ The Court states that based on Climate Change Act, which allowed nearly an exhaustion of the remaining CO₂-budget by 2030, the efforts required under Art. 20a GG to reduce greenhouse gas emissions after 2030 will be “considerable”, which is why the state must take “precautionary steps […] to manage the reduction efforts anticipated after 2030 in ways that respect fundamental rights”.⁴⁰ This requires that the transition to climate neutrality is initiated “in good time” for the post-2030 period, extending “sufficiently far into the future”.⁴¹ The state must formulate “transparent guidelines for the further structuring of greenhouse gas reduction” at an early stage, providing orientation for the required development and implementation processes and conveying a “sufficient degree of developmental urgency and planning certainty”.⁴² In addition, the Court clarifies that “further annual emission amounts and reduction measures must be defined in such detail that sufficiently specific orientation is provided”.⁴³

1.2.4.3 Lack of Precautionary Measures to Contain Risk of Disproportionate Burden

With this reasoning, the Constitutional Court declared Section 3 (1) 2 of Climate Change Act from 2019 and its Section 4 (1) 3 in conjunction with Annex 2 to be incompatible with the German Constitution to the extent that they do not contain a provision on the updating of reduction targets for periods from 2031 onwards that satisfies the requirements of constitutional law.⁴⁴ The German legislator was obliged to regulate the updating of the reduction targets from 2031 onwards by December 31, 2022 at the latest, in accordance with the grounds of the ruling.

1.3 Amendment of Climate Change Act

In response to the decision of the Constitutional Court, the German Bundestag passed an amendment of the German Climate Change Act on 24 June 2021.⁴⁵ With this amendment, the target year for achieving national greenhouse gas greenhouse gas neutrality was moved forward from 2050 to 2045.⁴⁶ After the year 2050, negative greenhouse gas emissions are to be achieved.⁴⁷ This means that from this year on, Germany should sequester more greenhouse gases in natural sinks than it emits. The interim reduction target for 2030 compared to 1990 was raised from 55% to 65%, and the emissions budgets for the sectors from 2024 were partially adjusted accordingly.⁴⁸ By the year 2040, emissions are supposed to be reduced by at least 88% compared to 1990.⁴⁹ The amended Climate Change Act defines a reduction path for 2031–2040 in the form of annual overall reduction targets.⁵⁰ The involvement of the legislator for the definition of the of the individual sector budgets from 2031 and from 2041 onwards is regulated in more detail.⁵¹ The amended Climate Change Act also contains a new provision on the “Contribution of the land use, land-use change and forestry sector”,⁵² which sets out that negative-emission-goals for the land use, land-use change and forestry sector (LULUCF-sector). The mean of the annual emissions balances is to be improved to at least minus 25 million tonnes of CO_2e by the year 2030, to at least minus 35 million CO_2e by the year 2040 and to minus 40 million tonnes of CO_2e by the year 2045.

It is questionable whether these new provisions meet the constitutional requirements pointed out by the Constitutional Court. In January 2022, a group of young people backed by the German environmental NGO Deutsche Umwelthilfe e.V. (“DUH”) already submitted another constitutional complaint, claiming that also the new Climate Change Act is insufficient.⁵³ They argue that the amount of emissions permitted in the period 2021–2030 exceeds the CO₂ budget remaining for limiting warming to “well below 2 °C and, if possible, 1.5 °C”. Also, the new complaint argues that the situation has “decisively changed” with the latest IPCC report, which provides further evidence that global warming must be limited by 1.5 °C. A decision on this complaint was still pending at the time of writing this chapter.

2 Consequences for Soil Protection and Soil Law

In the aftermath of the Court’s decision, a question frequently asked was what could be the implications for other planetary boundaries such as biodiversity,⁵⁴ or fossil phosphorus resources.⁵⁵ Against attempts of a direct transfer of the Court’s core statement on the advance interference effect on future freedom, it was pointed out, that in contrast to climate change, other environmental challenges often lack binding targets and a quantifiable emission budget.⁵⁶ This is also the case for the highly diverse soil protection problems, which cannot be broken down to one emission quantity. It thus seems hardly possible to derive a threat for future freedom from a currently insufficient soil protection—at least, if soil protection is regarded as a separate problem area independent from climate change.

The judgement of the Constitutional Court is nevertheless highly relevant due to the close interactions between soil and climate: On the one hand, soil has an important climate protection function due to its carbon storage capacity; on the other hand, adaptation to climate change requires increased soil protection.⁵⁷ The decision thus enhances the importance of soil protection in its function for climate protection (Sect. 2.1) and for adaptation to climate change (Sect. 2.2):

2.1 Strengthening Soil Protection as Climate Protection

2.1.1 Soil Protection Is Climate Protection

Soils, especially peatlands, store carbon in their organic content and are therefore important CO₂ stores and, in the long term, CO₂ sinks. Worldwide, soils store about five times as much carbon as above-ground biomass.⁵⁸ In addition, most ecosystems that can absorb carbon dioxide from the atmosphere also depend on healthy soils.⁵⁹ However, land-use changes, such as the drainage of peatlands, the conversion of forest and grassland soils into arable land, deforestation for building land and/or inappropriate soil management, are turning soils into significant sources of greenhouse gases.⁶⁰ Most recently, about 53 million tonnes of CO₂ emissions, and thus about 6.7 per cent of Germany’s greenhouse gas emissions, came from drained organic soils and peat extraction.⁶¹ Soil is thus currently an important source of emissions in Germany and far from acting as a sink.

2.1.2 Importance of Sinks to Achieve Climate Neutrality

The Federal Constitutional Court has clarified that the constitution obliges the German state to achieve greenhouse gas neutrality or climate neutrality.⁶² To this end, it is essential that GHG emissions from soils are reduced and that, in parallel, the function of soils as carbon reservoirs is maintained and expanded. A reduction of GHG emissions to zero will hardly be possible in some sectors, such as agriculture. Therefore, in order to achieve at least net-zero emissions, sufficient greenhouse gas sinks must be available to remove greenhouse gas emissions from the atmosphere and store them. In order to achieve greenhouse gas neutrality, it is thus strictly necessary to achieve a negative emissions balance in the LULUCF sector, which is why the legislator introduced a new Article 3 (2) sentence 2 in the new Climate Change Act from 2021.⁶³ Maintaining, restoring and improving the function of soils as carbon reservoirs as far as possible is particularly important in view of the Court’s finding that the Constitution obliges the state to comply with the temperature threshold of the Paris Agreement in a way which does not put a disproportionate burden on fundamental rights. The faster and stronger the greenhouse gas sinks grow, the less emission-relevant freedom activities must be restricted. Particularly in areas that are difficult to transform, the expansion of sinks can enable a slower and thus more fundamental-rights-friendly phase-out of emissions-relevant processes. The measures required to reduce emissions and increase the sink function include, for example:⁶⁴

• Protection and rewatering and renaturation of peatland,

• Reducing the use of peat in growing and rewetting peat extraction areas,

• Preservation of permanent grassland,

• Humus preservation and build-up in arable land,

• Reduction of land consumption for settlement and transport purposes or unsealing.

2.1.3 Initiate Activation of Sinks in Good Time

In its decision, the Constitutional Court emphasised that the necessary development and implementation processes must be initiated as early as possible.⁶⁵ The legislator must define a transparent reduction path to greenhouse gas neutrality that provides a sufficient degree of development pressure and planning certainty. The necessary developments must begin soon so that future freedom does not have to be suddenly and radically curtailed.⁶⁶

In view of these findings, it seems necessary to strengthen sinks—just like the necessary reduction in emissions—in good time and to regulate them in a differentiated manner. Just as emission reduction, increasing the sink function, especially raising water levels, requires great technical, economic and social efforts and changes.⁶⁷ Soils currently still function as a source of greenhouse gases. In order to reduce greenhouse gas emissions from peatlands in Germany as far as possible, at least by 2050, 50,000 ha would have to be rewetted annually.⁶⁸ Rewatering of peatland is a complex process that takes several years. Preparations for large-scale rewetting would have to begin immediately in order to avoid major impacts until the middle of the century and to enable social and economic adaptation. Therefore, transparent specifications for the further design of the sink increase would have to be formulated as early as possible.⁶⁹ The specifications must be sufficiently concrete and detailed to fulfil the necessary orientation function.⁷⁰

The amended Climate Protection Act does not meet these requirements, as it contains in section 3a only selective targets for the years 2030, 2040 and 2045, without specifying further interim targets or annual storage quantities. This provision thus does not provide sufficient planning certainty and orientation as to the extent and the time in which significant land use changes and land transformations will be required. Particularly in view of the fact that soils in Germany currently act as a source of greenhouse gases, more detailed specifications would be necessary to cope with the necessary increase in sinks.

2.2 Strengthening Soil Protection for the Necessary Adaptation to Climate Change

The decision strengthens soil protection not only in its importance for climate protection, but also in its importance for adaptation to climate change. The Constitutional Court has made it clear that the state is obliged by the fundamental right to the protection of life and health under Article 2 (2) sentence 1 of the German Constitution to take adaptation measures to mitigate the consequences of climate change.⁷¹

Climate change is already having a significant impact on the state of soils.⁷² Changes in temperatures, precipitation, and the intensity and frequency of extreme weather events can exacerbate existing soil protection problems such as erosion, compaction or loss of humus, and subsequently also make adaptation to climate change more difficult.⁷³

The Constitutional Court highlighted as a particular challenge for Germany the increase in dryness and drought, which has a considerable impact on agriculture due to the dehydration of the soil.⁷⁴ Also, soils play an important role in preventing flooding, especially when adapting to the expected increase in heavy rainfall events.⁷⁵ The Constitutional Court states in its decision with reference to the Federal Government’s national adaptation strategy that protection against the increasing flood risk in river basins should be strengthened above all by preserving non-built areas and that efforts should be made on restoring, desealing, renaturing and reforesting suitable land.⁷⁶ In addition, soil plays a key role in reducing increasing heat stress in cities.⁷⁷

Important objectives with regard to adaptation to climate change are therefore amongst others the maintenance or increase of water absorption and storage capacity, the prevention of soil erosion and the maintenance and expansion of soil biodiversity as well as the desealing of soil.⁷⁸

3 Conclusion and Outlook

In its landmark decision, the German Federal Constitutional Court has significantly strengthened climate protection. The Court has firmly shown that climate protection and adaptation to climate change are not a political option, but constitutional obligations. Due to the close interactions between soil and climate, the ruling is also a reminder for increased soil protection. It is essential to better protect our soils, both to be able to make a sustainable contribution to climate protection as well as to mitigate the effects of climate change.⁷⁹ The current German soil protection law, which focuses on contaminated sites and substance-related hazards to the soil, cannot make a sufficient contribution to this, as has been repeatedly stated.⁸⁰ The instruments of soil protection law therefore urgently need to be improved. The German federal government now takes up this concern and announced an adaptation of the Federal Soil Protection Act to the challenges of climate protection.⁸¹ Also the EU Commission has recognised the need for action and announced in its new EU Soil Strategy a special legislative proposal on soil health by 2023.⁸² It has to be hoped that these expected legislative changes will help soil to fulfil its important function in climate processes.