Largely inspired by Urgenda[i], the Neubauer[ii] case positioned itself on the innovative pathway set by the Dutch precedent, while at the same time moving beyond it. The cause was brought in 2020 by a group of young climate activists, and partly by the children of the farmers who had sued the German state in the previous Biobauer case[iii]. Their claims, as many parallel lawsuits globally, was that the (German) state’s current mitigation objective breached its international obligations under the Paris Agreement as well as their constitutional rights to life, property, occupational freedom, and dignity.
Bringing youth-led claims to the old continent
On the demonstration to launch the recently filed Italian lawsuit, two climate activists dressed in astronaut clothes came down a futuristic car to give the small crowd gathered in front of the Palace of the Senate “a message of hope, and a terrible warning”: unless serious action is taken, forced migrations and extreme events will become the rule in 2100. Besides the pop references,[iv] the use of a future-looking narrative is still a relative novelty in climate change litigation in Europe, where environmental organizations have so far rather emphasized the present effects of climate change and its urgency.[v]
Being led by a group of young climate activists and thoroughly inspired to intergenerational justice, the Neubauer case has opened a new intergenerational pathway into European climate change litigation. In their claim, the plaintiffs interpreted the right to dignity (art. 1 GG), in combination with the constitutional obligation to protect the natural foundations of life (art. 20 GG), and on that basis constructed a new “right to the humane future” or to an “ecological subsistence minimum”. Considering the interdependence between present emissions and future climate, the activists argued that the procrastination of mitigation policies condemned young and future generations to carry a higher mitigation burden compared to the older ones.
Admittedly, the reduction of greenhouse gases always entails a sacrifice to personal and economic freedoms, as emitting is the side-effects of most human activities. But the difference for young and future generations living in the mid-term future, as explained by the plaintiffs, is that neither mitigating climate change nor living in an ecologically compromised world will result from a free act of choice. In a not-so-far future, while mitigating will have become an undelayable necessity to avert the most dangerous temperatures, living in an unstable climate will simply become unavoidable.
Luisa Neubauer and the young activists filing the lawsuit with her, considered such a future to be inhumane, for it would deprive people of their faculty to choose and therefore of their self-determination. In the grim picture displayed by the plaintiffs, people in the future would no longer be masters of their own fortunes but would become “objects” whose lives are determined by the ecological and climatic circumstances.
Innovative and original as it was, the idea of a right to a humane future did not fully convince the Constitutional Court. The judges in Karlsruhe admitted that the state had a duty not to transfer on the young generations a disproportional mitigation burden but based their argument on the general rights to freedoms guaranteed by the Constitution (art. 2 GG), rather than on the right to human dignity and to a humane future. According to the decision, as emitting is a manifestation of the basic human freedoms, to cut such possibility to a radical extent in the short-term future would cause a constitutional violation. Despite the linguistic and legal differences between the claim and the decision, the plaintiffs and the judges were moved by a similar inspiration in protecting the self-determination and freedom of choice of young and future generations. The main difference lied in the Court’s decision not to surrender to the lawsuit’s pessimistic predictions of an inhumane future – not for a matter of cynicism, but rather for the scientific uncertainty on it.
A new duty towards the future without a new right
By grounding the state’s obligation to mitigate climate change on intergenerational rather than international equity, the Neubauer judgement differentiated itself from the approach previously taken in Urgenda. What is also worth noting, is that the German Court did so while avoiding to take a stance on the most symbolically powerful part of the claim, in which the plaintiffs had claimed the existence of a new constitutional right, the right to a humane future, to which young and future generations would be entitled. Differently from the judicial decisions in the Juliana and the Futuras Generaciones case, the Court decided to recognize a new intergenerational duty towards the future, without finding a parallel constitutional right to a humane future or to a safe climate.
What’s a Court’s say on the State’s duty towards the future?
Also differentiating itself from previous decisions,[vi] the German Court did not refrained from reviewing the government’s climate targets. On the contrary, the Court undertook a thorough analysis of climate science and of the moral and political dimensions involved in climate policy.
The arguably cautious decision in Neubauer, which resulted from those considerations, gives an opportunity to reflect on the courts’ role in assessing climate policy. The German Court considered that the carbon budget estimated by the IPCC, given the existing scientific uncertainties, could be both larger and narrower than predicted. Such a likely distortion, according to the court, endows the legislator with a first margin of discretion. Moreover, the Court noted that the establishment of the carbon budget also depends on the temperature goal established, and on the level of commitment towards it. Therefore, it went on to argue that a second ground for discretion was given by the Paris Agreement’s flexible objective to keep the temperature increase between “well below 2° and 1.5°”. In this light, it considered that the national climate policies could not be considered insufficient, given that, following them, the achievement of a target between 1.75° and 2° would have still been possible.
Finally, it considered that the decision to adopt stricter targets required balancing the rights of the present and future generations, and to decide, in the light of the existing scientific uncertainty, to which extent using precaution in the establishment of climate targets: two decisions of a moral and ultimately political nature.
On the other hand, such political reservation did not come without legal limits and normative indications. The Court ordered the government to adopt a new comprehensive plan defining the emissions reduction from 2031 and until the achievement of climate neutrality, so to prevent the consumption of the most part of the carbon budget at the expenses of future generations. Moreover, based on the existing scientific predictions, it considered the 1.5° goal to be preferable, even while leaving the final decisions to the government.
A dialogic approach: stronger influence on the political process?
The Court’s ruling came with specific guidelines. Firstly, the Court maintained the government’s duty to choose a carbon budget and stick to it, and its own power to review climate policies on that basis. Secondly, it ordered the government to plan its reduction paths for the period after 2030 and until climate neutrality.
The remedy, apparently softer than the one taken by Urgenda, where the Dutch Supreme Court directly ordered to comply with a specific target, might have the potential to be more effective, as it establishes intermediate steps that can more easily be reviewed by the judiciary and monitored by the organizations active in the field. Moreover, by avoiding a quantitative order, but establishing a dialogue with the democratic institutions, the remedy provided in Neubauer might prove more politically acceptable and manage to avoid the counter-reaction met by the Urgenda case.[vii]
For now, also thanks to its timeliness and probably to the of the German Constitutional Court,[viii] the decision has been welcomed by the representatives of the most different German political parties. Despite the upcoming elections, the General Secretary of the leading party has expressed the view that an amendment should be made before the end of the legislature. Moreover, the government has announced a new intergenerational contract for the climate, in which the existing regulations are tightened and the goal of achieving climate neutrality has been anticipated to 2045.
The Neubauer decision offers a chance to reflect on the limits that a constitutional democracy faces when tackling climate change, as well as on its advantages. Through the decision, the judges in Karlsruhe reaffirmed their role, as a constitutional court, to point to the deficits of a system focused on the short-term interests of the living majority, in the protection of the younger and future generations’ freedoms. Moreover, the judgement has shown the possibility to divorce a duty from a right: the existence of a new duty towards the future doesn’t need to be accompanied by a newly established right to the future, when the general constitutional aim to protect freedoms is recognized. In other words, as symbolically powerful as it is in shaping new narratives and even strengthening a sense of identity, the recognition of new rights is not always necessary to protect the citizens’ legal sphere. Finally, the Neubauer judgement provides a chance for reflecting on what should be a Court’s say on climate policy, given its scientific nuances and moral aspects, and what, on the other hand, should be left to the democratic decision-making process.
[i] Urgenda  Supreme Court of the Netherlands 19/00135.
[ii] Neubauer et al v Germany Federal Constitutional Court 0206/2020.
[iii] Family Farmers and Greenpeace Germany v Germany  Administrative Court of Berlin 10 K 412.18.
[v] Chris Hilson, ‘Framing Time in Climate Change Litigation’ (2019) 9 Oñati Socio-legal Series 361.
[vi] This was the case, for example, of the first instance decision in the case FIE v. Ireland. Friends of the Irish Environment v Ireland  High Court of Ireland 793/2017.
[vii] M. De Werd, “Fact Check: Is there a ‘Muzzle Law’ for Dutch Judges in the Making? No!”, 2020, Verfassungsblog
[viii] The decision has come during the campaigns for the next federal elections in Germany, in a historic moment where, according to the latest polls, the Green Party holds the majority of the votes. https://www.dw.com/en/germany-opinion-poll-suggests-green-party-could-head-next-government/a-57459197