A True Progressive Top Court Takes On Climate Change: The Case Of Germany

CO2 Coalition Member Francis Menton’s Commentary:

This was first published at Manhattan Contrarian, November 14, 2022.

Two of my recent posts have looked at critiques from the left of the Supreme Court’s decision in West Virginia v. EPA — the June 30 decision that held that the Clean Air Act did not clearly give EPA authority to order the phase-out of all fossil-fuel generated electricity in the U.S. My July 5 post, “How To Think Like A Liberal Supreme Court Justice,” summarized Justice Elena Kagan’s dissent in the West Virginia case. My September 12 post, “How The Left Views Administrative Law,” discussed the presentation at the Federalist Society convention by Professor Sally Katzen of NYU Law School, where she stated her belief that EPA did have the authority in question, and criticized the Court for having taken “an extreme action to shut down rule-making.”

But the Kagan dissent and Katzen presentation are just critiques of the approach to this matter taken by our constitutionalist-dominated Supreme Court. A separate question is, what would the liberals do if they suddenly found themselves in control of the top court — say, if a new Democrat-controlled Congress decides to create six new justices to be appointed by President Biden?

At the lunch following the panel where Professor Katzen spoke, I found myself sitting next to two lawyers who had come from Germany to attend the convention. One of them said to me, in essence, you have no idea what a country’s top court might do when it feels that its powers are unconstrained. He then referred me, on the subject of climate change, to a Decision from the German Federal Constitutional Court (Bundesverfassungsgericht) from March 2021; and he gave me sufficient pointers to find information about the Decision in English.

It turns out that the Constitutional Court has an English-language portion of its website, where can be found both a press release of April 29, 2021, summarizing the Decision, as well as a full translation of the Decision itself. The full Decision has some 270 “paragraphs,” some quite long, and would likely be around 200 pages if typed out in the format used by our courts. It is unanimous, and there are no concurrences or dissents. Unlike cases from our Supreme Court, the Decision does not have a caption naming plaintiffs and defendants. They suggest referring to the Decision as the “Order of the First Senate of 24 March 2021.” (The Constitutional Court is divided into two halves, called “Senates,” of eight judges each. They divide the cases between themselves based on subject matter.)

Here’s the short version of the Decision: Various claimants challenged the German Climate Change Act of 2019, on the ground that the Act did not go far enough in setting mandatory targets for the reduction of greenhouse gas emissions. The Court found that the mandates in the Climate Change Act were sufficient for the period up to 2030. But as to the period after 2030, the Court found that the legislature had not adopted sufficient targets for GHG reduction, and ordered it to do so! And in the absence of the legislature adopting a law to the Court’s satisfaction, the Court stated that it would impose such legislation by its own order.

That may sound shocking to many who are familiar with our own Supreme Court and constitutional doctrine. But our Court, despite some past excesses, has never really come under the control of the radical Left that now dominates law schools and the Democratic Party, as well as much of Europe. If you think that no Supreme Court in the U.S. would ever do something as crazy as this, I would not be at all sure.

Many things about this case appear quite strange to this American lawyer. First, the case does not represent an appeal from lower courts that had previously issued decisions; rather, it was begun in this Court, which is both the original court and the final court on matters of constitutionality. Apparently, that is how it works for all cases before this Court. Second, the absence of a caption is only the first indicator of the extent to which the case does not constitute an actual dispute between real parties. Although the case was commenced by four different groups of “complainants,” who are apparently mostly actual people, the decision studiously avoids naming any of them. Rather, they are referenced anonymously (e.g., “the complainants” (paragraph 40), “complainants no. 1 to 11” (paragraph 40), or (as to a different claim), “The complainants are predominantly adolescents and young adults.” (paragraph 60)).

There is a section in the Decision addressing “standing,” beginning at paragraph 96. This Court takes a very different approach from that of our courts on how to determine standing of a plaintiff asserting degradation of the environment, although I’m not sure that the end result would be any different here. From paragraph 96:

In light of what the complainants regard as the overly generous emission amounts allowed until 2030 under these provisions, it ultimately seems possible that duties of protection arising from fundamental rights in Art. 2(2) first sentence and Art. 14(1) GG have been violated, and moreover that the complainants who live in Germany are potentially faced with immense reduction burdens after 2030 which might jeopardise their freedom – freedom that is comprehensively protected by fundamental rights – in an unconstitutional manner. In all other respects, the possibility of a fundamental rights violation is ruled out or at least has not been sufficiently demonstrated.

GG is the German acronym for Grundgesetz — “Basic Law” — the analog of our Constitution. So apparently, the basis for establishing standing before this Court is that “it seems possible that duties of protection arising from fundamental rights [in the GG] have been violated.” That is a rather low bar. On the other hand, despite the seemingly higher bar in our system of showing some concrete injury, basically the courts here have accepted any assertion of environmental degradation as sufficient injury.

On to the merits. You will need to make it all the way to paragraphs 143 and following to find the authority on which the Court claims the ability to order the German legislature to make laws of the Court’s choosing completely transforming the economy. Here are the key lines (from paragraphs 144 – 148):

Art. 2(2) first sentence GG imposes on the state a general duty of protection of life and physical integrity. Apart from providing the individual with a defensive right against state interference, this fundamental right also encompasses the state’s duty to protect and promote the legal interests of life and physical integrity and to safeguard these interests against unlawful interference by others . . . . The duties of protection derived from the objective dimension of this fundamental right are, in principle, part of the subjective enjoyment of this fundamental right. Thus, if duties of protection are violated, the fundamental right enshrined in Art. 2(2) first sentence GG is also violated, and affected individuals can oppose such a violation by lodging a constitutional complaint . . . .

The state’s duty of protection arising from Art. 2(2) first sentence GG does not take effect only after violations have already occurred. It is also oriented towards the future. . . . The protection of life and physical integrity under Art. 2(2) first sentence GG encompasses protection against impairments and degradation of constitutionally guaranteed interests caused by environmental pollution, regardless of who or what circumstances are the cause . . . . The state’s duty of protection arising from Art. 2(2) first sentence GG also includes the duty to protect life and health against the risks posed by climate change. . . .

As you can see, the logic of the Decision begins and ends with Article 2(2), first sentence, of the GG. That must be quite some powerful sentence. Here is the full text in English translation:

Every person shall have the right to life and physical integrity.

That’s it. Somehow, with really nothing more to say on the subject than those eleven words (only nine words in German!), they have managed to stretch this Decision out to something like 200 pages. Undoubtedly, the idea is to make it so long that essentially nobody can read it all and realize that the judges have just pulled these massive powers for themselves out of thin air.

Here is a picture of the building that the German Constitutional Court operates out of, located in Karlsrühe, Germany.

Clearly, working in a hideous modernist building of this sort addles the brain. See also, the FBI building in Washington. (To be fair, the FBI building is worse.)

Would a leftist-dominated Supreme Court in the U.S. ever go quite this far off the rails? Perhaps that will never be tested in the “climate” arena, for various reasons, one being that the EPA is willing to be the entity issuing the edicts to shut down the economy, and all the Supreme Court would need to do would be to decline to stop them. On the other hand, given the power of the religion of climate apocalypse, I would have little doubt that a leftist-dominated Supreme Court, if it saw no other route to get the job done, would issue whatever order it thought necessary to eliminate fossil fuels. Remember, our Supreme Court, when it thought there should be a constitutional right to abortion, was able to find it in the Due Process Clause of the 14th Amendment (“nor shall any state deprive any person of life, liberty, or property, without due process of law”). In terms of the logic, there’s not a lot of difference between that and what the German Constitutional Court has done here.

Authored by CO2 Coalition Member Francis Menton, and first published at Manhattan Contrarian, November 14, 2022, here.

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