Significant Climate Change Headnotes
Two significant climate change headnotes were published as part of the ILDC February 2023 Update. Click on the titles below to read the full headnotes.
ILDC 3193 (CH 2020)
Verein KlimaSeniorinnen Schweiz and ors v Federal Department of the Environment, Transport, Energy and Communications, Final appeal judgment, 1C_37/2019, BGE 146 I 145, ILDC 3193 (CH 2020), 5th May 2020, Switzerland; Federal Supreme Court [BGer]
In this case, the Swiss Supreme Court had to determine whether the failure of Swiss authorities to take effective measures against global warming sufficiently affected the appellants’ right to life (Article 2 of the ECHR) and right to privacy and family life (Article 8 of the ECHR) to warrant legal protection under Article 25a of the Swiss Federal Act on Administrative Procedure. Among other claims, the appellants, KlimaSeniorinnen and others, had argued that women aged 75 or above were particularly affected by, and vulnerable to, climate change.
Among other aspects, the Supreme Court ruled that the appellants’ right to life (Article 2 of the ECHR) and their right to privacy and family life (Article 8 of the ECHR) were not sufficiently affected by the alleged omissions to require a decision on the merits pursuant to Article 25a of the Swiss Federal Act on Administrative Procedure. According to the Court, enough time remained to achieve the goal of limiting global warming to ‘well below 2°C’ compared to pre-industrial levels. The case is now pending before the European Court of Human Rights, whose judgment is expected to become a leading case in international environmental law and international human rights law.
ILDC 3323 (DE 2021)
Climate Change Order, First constitutional complaint: G and ors, Order on the constitutional complaint, 1 BvR 2656/18, 1 BvR 96/20, 1 BvR 78/20, 1 BvR 288/20, BVerfGE 157, 30-177, ILDC 3323 (DE 2021), 24th March 2021, Germany; Constitutional Court [BVerfG]
The Climate Case order by the German Federal Constitutional Court (FCC) is a landmark decision in many respects. The FCC, for the first time, obliged the German legislator to improve the existing Climate Change Act as being insufficient to tackle climate change.
The Court’s reasoning is remarkable, both at the admissibility and merits stage. The FCC affirmed standing of the applicants – mostly young people – in view of the future interferences with their rights that would result from further postponing considerable reduction of CO2 emissions. In the merits, it read the State duty to protect natural foundations of life under Article 20a of the Basic Law as incorporating the Paris Agreement’s goal to keep global average temperature rise to well below 2°C and preferably 1.5°C above pre-industrial levels. On this basis, the FCC recognised an “intertemporal” dimension of fundamental rights entailing the need to take future interferences with rights of the applicants into account when distributing scarce goods. One generation could not consume large portions of the CO2 budget while bearing a minor share of reduction effort, if this would leave future generations with drastic reduction burdens and serious losses of freedom. As the existing Climate Change Act had not transparently indicated how the reduction requirements were to be structured after 2030, the legislator had to improve the Climate Change Act, which it did within a few months.
