A ground-breaking decision in Germany's federal court paves the way for a global reckoning.
Climate and the courts: the German breakthrough
Germany’s highest court, the Karlsruhe Court, has ruled that the government’s climate protection measures are insufficient to protect future generations, after a complaint brought by environmentalist groups. In a groundbreaking ruling, the court has given government until the end of next year to improve its Climate Protection Act, passed in 2019, and to ensure it met 2030 greenhouse gas reduction goals more immediately.
Join UTS Industry Professor of Business and Climate, Bob Carr, as he discusses the origins and the meaning of the groundbreaking decision, with Sophie Marjanac, Climate Accountability Lead at ClientEarth.
Watch the conversation
Bob Carr: It's been described as trailblazing and historic that a decision of the federal court, the highest court in the federal republic of Germany, on climate.
On April 29, the court told the government in Berlin that it had to rewrite the climate laws passed only in 2019 to talk about this and other things happening with climate litigation.
I’m delighted to have an Australian qualified environmental lawyer who's worked with ClientEarth since 2015, Sophie Marjanac. Sophie, you're talking to us from London. I understand you were educated at the University of New South Wales in law and that's useful because I'd like to end up talking about what opportunities are in the Australian legal system for breakthrough decisions like that that happened in Germany.
How do you see this federal constitutional court decision in the international landscape, where people are going to court to get change in climate protection?
Sophie Marjanac: Well, thank you so much for inviting me to speak to your students Mr Carr. It's an absolute pleasure to be with you and to be talking about this really important and cutting-edge topic.
The federal constitutional decision in Germany is, as you say, a ground-breaking decision for the constitutional applicability of the Paris agreement to national action on climate change.
So, in that case, a group of young people from Germany, who were experiencing and are experiencing the impacts of climate change, challenged the federal German republic's climate change law, climate change legislation, on the basis that the targets were insufficient to protect them from the negative impacts of climate change in the future.
So, in its decision, the federal constitutional court looked at the provisions of the German constitution – which includes the rights to life, the rights to health, and the rights to live a future life in dignity – and on the basis of the decision, found that there was a constitutionally mandated minimum temperature target with which the German government needed to make a contribution to meeting, and that federally, or that constitutionally relevant temperature threshold, as the court said, is the temperature goal in the Paris Agreement.
That's really important for global climate change litigation because basically that means that the federal court in Germany recognised that there's a minimum temperature threshold above which human rights are likely to be adversely impacted, and that is the 1.5 degree goal in the Paris Agreement article 2, which says that all countries aim to hold global warming to no more than 1.5 degrees above pre-industrial levels, and that beyond that there are likely to be unacceptable impacts on human rights, so that's a crucial part of the decision and that has global applicability, we think.
Bob Carr: So that would be akin, say, to the Supreme Court in the United States, or the highest court in the United Kingdom making a decision that the commitments in the Paris Agreement have got force within the legal system of those countries?
Sophie Marjanac: Yes, that's right, and that's because was also relevant in Germany because the German government has committed to meet the goals of the Paris Agreement in its climate law, its climate legislation. It also importantly had an independent advisory body, independent scientific body, that provided an assessment of what Germany needed to do to make a contribution to that temperature goal because, of course, a temperature goal is a global goal; however, each state needs to give its highest possible ambition to meet those goals under the Paris Agreement. So, the fact that an independent scientific body had advised the German Government as to its emissions reduction pathway was also really important for the success of this litigation.
Bob Carr: As someone who knows Australian law and the Australian constitution, you must have found yourself thinking about how this might have a resonance in Australian law…
Sophie Marjanac: Absolutely. The Australian constitution and legislative framework is quite different; however, there are a number of climate change cases proceeding in Australia at the moment including just recently a very exciting development in Sharma and Minister for the environment, where a group of young people challenged a decision under the EPBC Act (the Environmental Protection Biodiversity Conservation Act) on the basis that the federal environment minister needs to consider the effect of climate change on future generations. So that's a decision that has not yet been finalised, but it's an important breakthrough that's really important to watch.
And there are also cases being brought by young people in Queensland under the Queensland Human Rights Act. So, we are seeing an increase in climate change litigation in Australia and around the world.
Bob Carr: Is it likely that in those Australian cases you could have a judge making reference to, or at least wanting to study or read, the German decision of April 29?
Sophie Marjanac: I think absolutely judges are influenced by each other globally. I think, in an important decision on a coal mine in New South Wales, the Rocky Hill, decision, the judge there referenced global climate change law and litigation.
In various cases around the world, we are seeing that judges are looking to each other's decisions and learning from those decisions; learning about how climate science is interpreted and can be used in these cases.
And I think we are seeing this emerging global norm of the Paris Agreement, which is an international law treaty, but that treaty [is] influencing and becoming hard national law through cases like this where states interpret the Paris Agreement into their own national frameworks.
Bob Carr: What do you hear about the most likely action being taken, to be taken, by the German government in response to this court decision?
Sophie Marjanac: So, in the decision, the German court found that the German state had set a Net Zero target for the future, for 2050, and it had interim targets out to 2030. But it found that, after 2030, the government had not specified the emissions reduction trajectory and, essentially, the basis on which the children won was that post-2030, those emissions reductions could impact their human rights in such a significant way (that is, affect their fundamental freedoms, their civil liberties in such a way that it would place a disproportionate burden on those children and young people today), and so the court said that the German government needed to set out the emissions reduction pathway post-2030 in order to explain or in order to set out how it would avoid impermissible impacts on future freedoms.
So, it's very novel, it's very new even in the German context. There are a lot of constitutional scholars in Germany now studying the decision in detail. This finding, and this is important to understanding how law and politics can interact…that finding opened the space then for the German politicians to tighten and increase their emissions reproduction targets to both 2030 and post-2030. And so even though the decision didn't relate to the next decade, it's had an impact on German emissions reduction targets in the near term.
Bob Carr: The court detected a void between 2030 and 2050 in German goals and Germany has now got to specify a pathway between 2030 and 2050.
Sophie Marjanac: That's right.
Bob Carr: As an Australian, I was very impressed by Germany saying 55% reduction by 2030. I thought that was pretty impressive, especially compared with an Australian government that's saying only preferably will we get the Net Zero emissions in 2050 and has no goal for 2030. Australia is really being left behind globally on this issue.
Sophie Marjanac: It is absolutely. It's really now an absolute global standout laggard, unfortunately. Even we've seen China increase its emissions target to set a Net Zero date, we've seen the US set a near Net Zero date and a very ambitious goal for 2030, so countries are stepping up ahead of this November's COP and Australia is now sitting out there with rogue states such as Russia and Saudi Arabia on this issue and now finds itself allied with those countries, which is, I think, quite a shame. And definitely I'd say from the European perspective, at least where I'm sitting, it's damaging Australia's reputation globally.
Bob Carr: How quickly will Germany start implementing practical policies to give effect to the court decision spelling out what it means for transport, what it means for faster action on closing coal, what it means on specific policy fronts in terms of setting goals post 2030? The devil is in the detail as people are going to be eager to point out and Germany would be under pressure right across the whole landscape of government policy.
Sophie Marjanac: That's right, however, they have already commenced that process. So, in the past few years they've undergone a comprehensive process to end the use of coal in all electricity and industrial production. So, there was an industrial production, there was a commission established. Just transition commission all, stakeholders were invited to participate and that process has led to a coal phase out date that's been agreed between operators and the state, unions and all stakeholders that in the German climate law also includes sectoral targets. So, it's quite specific, it includes targets for electricity sector, transport sector, buildings etc. Generally, in Germany, the reaction has not been one of intimidation, in fact enthusiasm to get on with the task.
I think that there at the European level with the negotiation of the Green New Deal, there's a lot of optimism in relation to the opportunities that the transition creates, the opportunities for new technologies to decarbonise industrial processes, to decarbonise transport, to create a jobs boom through the installation of low carbon heating and cooling systems in buildings. All of these are seen as opportunities by German and European politicians. I'd say in contrast to Australia where they're seen as potential costs, in fact from the European perspective and the German perspective, they're seen as opportunities and benefits and the transition is seen as an opportunity that people are really grasping.
Bob Carr: What do you make of the Dutch decision in Shell, which comes at roughly the same time? There have previously been big decisions out of the Dutch court system, how does the Shell decision push the boundaries?
Sophie Marjanac: That's an absolutely ground breaking decision. We have seen a lot of tort litigation like this against other large oil and gas companies in the U.S. but this is the first substantive decision globally that addresses this issue of the liability of oil and gas producers to third parties and persons that are affected by climate change. So, in this case we have seen some really significant shifts in the law and some new law. Most importantly, the finding that oil and gas producers are responsible not only for their own emissions that they admit at their refineries and through producing oil and gas, but also by putting that oil and gas onto the market they are also responsible for their downstream emissions.
That's a crucial step in climate change litigation globally. It's also incredibly important because it's based on human rights. It's based on the Ruggie Principles and the United Nations guiding principles on business and human rights, those apply to all companies around the world. So, all global companies now operating with global supply chains and international investors are going to need to be looking to this decision to see what effect it has on their legal position and also on their responsibilities. So, the impact of this claim I think is really yet to be felt and certainly can't be overstated, it's absolutely huge.
Bob Carr: Certainly, it would have all oil and gas majors recasting their policies because they'd have to anticipate that in one jurisdiction or another, they're going to be hit with a decision like this one that has hit Shell
Sophie Marjanac: I think that they ought to be concerned absolutely, especially given the number of claims that have been brought in the U.S. and those are claims for damages. There are large cities and states that are bringing those claims including the city of New York, several Californian cities and states themselves.
So, the litigation landscape is heating up, parallels have been made to the tobacco litigation and so I think you're absolutely correct that oil and gas majors need to be reviewing their policies, they need to be setting net zero targets themselves that align with the Paris Agreement and that really means a decrease in oil and gas production and diversification into renewable forms of energy.
Bob Carr: Let's hone in on the Australian landscape. Talk about the Torres Strait Islanders and their bid to have legal court recognition of how climate change is affecting their life, their culture.
Sophie Marjanac: So, I'm representing eight Torres Strait Islanders who come from really very low-lying islands in the Torres Strait. Their islands are on the front line of climate change impacts, they are seeing and living with the effects of climate change every day. They're seeing coastal erosion, erosion that is washing away sacred burial grounds, threatening homes and causing great anxiety and distress to the communities.
So, they're living with that sea level rise but they're also seeing impacts in the natural environment so in the reef that they depend on for their livelihoods and their cultural life as well. So, they're seeing cultural species being reduced as well as the species on which they're rely for their economy and that's the tropical rock lobster fishery. So, eight Torres Strait Islanders have taken a claim to the U.N. Human Rights Committee on the basis that the federal government has not done enough to protect their rights to life, to respect for their family and home and most importantly their right to culture. The basis of the claim is a treaty that Australia signed up to guarantee these rights to all Australians and the process is before the Human Rights Committee and we hope for a decision before the end of the year.
Bob Carr: If the Human Rights Committee upheld the case how, would that how would that communicate itself to the Australian legal system? What sort of obligation does it place on the Australian Government, could Canberra shrug it off?
Sophie Marjanac: The Australian Government has signed up to comply with international law and the committee's decision will be a definitive statement of the international law on human rights and climate change. The committee has follow-up procedures that it can make to ensure that its recommendations are followed by host governments.
Bob Carr: Looking at things from London about the host at the end of the year, the summit following the g7 where I thought the Australian prime minister didn't come under the sort of pressure I imagined was possible. How do you see the focus on Australia's laggard position? The only developed country that's not that's not making a tight commitment to net zero emissions in 2050, I guess with the exception of Russia which you mentioned earlier.
Sophie Marjanac: I think that Australia will come under more scrutiny at the cop, I think that now that the UK / Australia trade deal is settled that the UK can put that additional pressure on and I believe that they absolutely will be. Also, the EU is likely to put pressure on Australia. They're also negotiating a free trade deal; the issue of carbon border tax adjustments is coming up and it will continue to come up I think at the cop. So, the pressure will absolutely be on Australia from the UNFCCC secretariat, absolutely from climate activists. I think that the rest of the world has realised that Australia's laggard position globally and so I suspect that Morrison may find himself isolated if he shows up to the cop in November with no genuine improved commitments.
Bob Carr: Yeah, Sophie Marjanac thank you very much for your analysis and good luck in the work of climate earth and especially on behalf of the community of Torres Strait Islanders who are saying their culture, their way of life, their livelihoods are at risk from climate and that's an international treaty obligation on Australia. Thank you for talking with us.
Sophie Marjanac: Thank you so much for having me.