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Will Germans Allow Their Civil Liberties To Be Restricted Now To Prevent Future Climate Change?

The German Constitutional Court has a reputation for testing the boundaries of politics, economics and law. It has done so in its dealings with the EU and the European Central Bank in the past (cases that are still pending before the court). 

Now, it is stepping into climate policies as well. In May, the court ruled that parts of the Climate Change Act, a German law that has been in force since 2019 and applies Paris climate agreement goals to German legislation, is partly unconstitutional

Protection of the Environment

The court has a special place in German society, as it is traditionally seen as the ultimate guardian against autocratic temptations. As such, it is the last line of defense against possible future attempts to curtail civil liberties. It is with that central duty in mind that the court reviewed the climate law. 

At the same time, the protection of the environment is also anchored in the German constitution. Article 20a GG 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.”  

On climate-related policies there are therefore limits to political action in Germany. The state has a duty to take measures to protect the environment. However, the “duty to protect the climate” does not take precedence over other constitutional rights, but must be balanced against them. 

Groundbreaking Ruling

In its findings, the court linked its duty to protect the environment with the duty to protect civil liberties. In this respect, it provides a new, potentially groundbreaking way of looking at the impact of climate change on democracies. This seems like a timely intervention by the highest court of one of the main Western democracies. Some would describe the recent restrictions on civil liberties caused by the pandemic as a test run of what things will be like if climate change is not managed well.

By criticizing the commitments on climate change pledged by the German government for the period after 2030, the judges have reminded politicians that they have a duty to think and plan long term, even if their political career preoccupations are mainly focused on winning the next election. It may seem an eternity away in political terms, but the court considered the commitments too vague to reach the goal of limiting the rise in temperatures.

Protecting People Against a Future Restriction of Liberty

The state has to limit the risk that it will need to severely restrict fundamental rights in the future, precisely because it is fully upholding them in the present. In other words, the Climate Change Act is deemed unconstitutional by the court because it does not sufficiently protect Germans against future curtailing of their rights that might become necessary as climate change progresses. 

The German high court is worried that reversing the negative impact of climate change will likely become impossible once the tipping point is reached. 

According to the court’s argument, the more Germany uses up its total emissions budget by 2030, the stricter the restrictions of freedoms will need to be after 2030 in order to be able to fulfill the constitutional requirement to protect the climate and achieve climate neutrality.

The court is therefore urging politicians to be more ambitious today in its climate policies, even if that limits some civil liberties, rather than wait to be forced by events to impose more draconian measures.

A Glimpse Into the Future

The court’s ruling has given us a glimpse into a future in which climate change will be so disruptive that democratically elected governments will be forced to restrain the freedoms of its citizens. 

Consider for a moment the reaction of citizens to the restrictions that were introduced during the pandemic. Overall, European governments managed to convince a vast majority of their citizens that unusually harsh measures were necessary. However, in some instances, and Germany is a case in point, the far right and far left fringes of the political spectrum tried to claim that this was a slippery slope toward the imposition of stealth dictatorships. 

As absurd as most of these claims were, the danger of social unrest was very much in politicians’ minds as they searched for the right balance between health and civil/economic liberties. 

What helped to increase acceptance was the fact that there was light at the end of the tunnel. Restrictions felt temporary. Eventually they would fade. 

But the German high court is worried that with climate change, politicians won’t have this kind of luxury in the future. Reversing the negative impact of climate change will likely become impossible once the tipping point is reached. 

German politicians have no choice but to take note of the court’s ruling and now need to go back to the drawing board. They will have to start to consider some hard choices that they were hoping to push into the future.

Alexander Privitera

Head of European Affairs at Commerzbank AG and BRINK Columnist

Alexander Privitera is nonresident fellow at the Washington based think tank AICGS, Johns Hopkins University. He is also head of European affairs at Commerzbank AG.

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