Climate lawsuit: Whitewashing our climate policy no longer works

After the climate protection ruling by the European Court of Human Rights, the federal government in Berlin now has to take action, writes Felix Ekardt. The head of the Sustainability and Climate Policy Research Center in Leipzig initiated the successful climate lawsuit before the Federal Constitutional Court. He is happy to respond to reader comments directly below the article. Discuss with him!

The youngest Climate protection ruling by the European Court of Human Rights (ECtHR) has a spectacular history. In 2021, the Federal Constitutional Court (BVerfG) made a historic decision following a lawsuit from environmental associations: Germany must do more on climate protection because it is too one-sidedly prioritizing the economic freedom of current generations over the freedoms of future generations. In 2023, environmentalists also won another ruling at the Berlin-Brandenburg Higher Administrative Court, which found that the federal government is still not doing enough: it is not even meeting its own, inadequate climate targets.

Now a European court has gone one step further. Using an example case from Switzerland, the European Court of Human Rights has decided that the protection of life and health against climate change requires that states respect the 1.5 degree limit for global warming from the Paris Climate Agreement. The ECHR is a kind of higher constitutional court for the entire geographical Europe. You can turn there if states violate human rights – i.e. freedoms and conditions for freedom such as life and health – and the state courts do not stop the violation. The underlying European Convention on Human Rights is binding everywhere in Europe, not just in the EU – also in Germany.

In its ruling, the ECHR even goes a little further than the German Constitutional Court. Because he says it quite clearly: 1.5 degrees is the maximum limit of tolerable global warming if one does not want to risk catastrophic consequences such as constant natural disasters or food and water shortages. In 2021, the BVerfG had hinted that 1.75 degrees could perhaps also be the limit because the Paris Climate Agreement speaks of “well below 2 degrees” as a goal, although the agreement adds that the states are making “efforts” for 1.5 degrees degrees would have to do.

The federal government now has to step up massively

Also Federal Government and the Bundestag must therefore now massively increase climate protection. According to the IPCC data, Germany has already exhausted its greenhouse gas budget for 1.5 degrees. Using the 1.5 degree limit, you can roughly calculate a remaining CO₂ budget available for Germany, based on an equal per capita distribution of the remaining possible emissions worldwide. To put it somewhat simply, the Intergovernmental Panel on Climate Change (IPCC) indicates a global total remaining budget of 300 gigatons of CO₂. Using a per capita approach, for Germany, which accounts for one hundredth of the world’s population, this would mean that only three gigatons of CO₂ remain. Germany would have already used this up by now. Climate neutrality only in 2045, as previously planned, is no longer enough – climate protection must be massively accelerated. And in Europe as a whole, because things aren’t looking any better in other countries.

The fact that on the same day the ECHR dismissed as inadmissible a lawsuit against 33 states – including Germany – brought by Portuguese young people does not help the governments in Europe’s capitals. This was simply because the young people did not initially sue in the national courts – unlike in the case of the Swiss climate seniors. The interpretations of the European Convention on Human Rights by the ECHR still also apply to Germany. And they will play an important role in further lawsuits that are looming in Germany and Europe. By the way, this also applies to lawsuits about other environmental problems such as the loss of biodiversity. According to unanimous scientific opinion, the planetary boundaries there – i.e. the limits of what is still sustainable for human life on earth – have been exceeded even more clearly than with climate change.

Reversal of the burden of proof

Importantly, the ECHR reversed the burden of proof. In the future, the state will have to justify that its climate policy is sufficient – and not the plaintiffs that the climate policy is not sufficient. Based on what has been said, the federal government is unlikely to be able to provide this proof. And the ECHR – more clearly than the BVerfG – has given politicians the task of actually doing the math, for example whether the climate policy measures are sufficient to meet the Co2 budgets. This is intended to avoid sugarcoating. This is popular in politics, on the one hand as a way to pretend that you are doing something, but on the other hand to avoid putting too much pressure on today’s voters. What is also pleasing is that the ECHR does not argue, as the BVerfG does, that a sleepy one Climate protection later lead to hasty climate protection that is hostile to freedom. Instead, the Strasbourg court says: Climate change – and not delayed climate policy – ​​is the real danger to all of our freedom.

Both courts do not overlook the fact that in democracies, climate policy is primarily the matter of elected politicians. But parliaments and governments disregard certain limits to their political scope, especially when it comes to future generations. You can now sue before a constitutional court – also because of too little climate protection and politics that are too focused on the present.

In its judgment, the ECHR by no means overlooked the geopolitically difficult world situation. But climate protection is in no way contrary to other requirements. Rather, an accelerated phase-out of fossil fuels is becoming more necessary than ever due to the increasingly warlike world situation. Europe is currently actively supporting the Russian war machine by continuing to consume fossil fuels, for example in the form of liquid gas from India, which in turn purchases the gas from Russian state-owned companies.

Becoming independent of this is not just an act of solidarity with Ukraine, but it is about more: freedom in Europe. Both courts, both the highest European and the German, have understood what the governments in almost all European countries still do not understand: climate protection is protection of freedom. And current climate protection is also far more economical than paying the horrendous costs of doing nothing later.