Neubauer et al. versus Germany: Planetary Climate Litigation for the Anthropocene?

Louis J Kotzé

doi:10.1017/glj.2021.87

Abstract

AbstractThe recent decision by the German Constitutional Court in Neubauer et al. versus Germany has been attracting considerable attention around the globe. The Court ordered the German legislature to correct and to significantly tighten up existing climate law provisions, to increase the ambition of these provisions, and to strengthen future mitigation pathways. Several commentators have hailed it as an example of what is possible when the judiciary steps in to fill gaps in global climate governance as a result of governments failing to act or acting inadequately. In this article, I explore the extent to which the Court in Karlsruhe has innovatively managed to embrace a holistic planetary view of climate science, climate change impacts, planetary justice, planetary stewardship, earth system vulnerability, and global climate law, within the context of a human-dominated geological epoch, to guide its reasoning and findings. My proposal is that courts will have to increasingly follow a planetary perspective that is grounded in the Anthropocene context when adjudicating matters related to global disruptors such as climate change. This decision offers a first, and important, example of a promising new paradigm that I term planetary climate litigation.

Highlights

The Anthropocene’s Planetary ContextMy point of departure in this part is that a planetary perspective has become the contemporary regulatory context within which to consider and govern interrelated earth system transformations
My proposal is that courts will have to increasingly follow a planetary perspective that is grounded in the Anthropocene context when adjudicating matters related to global disruptors such as climate change
In its judgment delivered on April 29, 2021, the Constitutional Court unanimously declared the Federal Climate Protection Act partly unconstitutional because it does not sufficiently protect people against future infringements and limitations of freedom rights in the wake of gradually intensifying climate change.[9]

Summary

The Anthropocene’s Planetary Context

My point of departure in this part is that a planetary perspective has become the contemporary regulatory context within which to consider and govern interrelated earth system transformations. These unintended consequences on the global life support system that underpins the rapidly expanding human enterprise lie at the heart of the interconnected twenty-first century challenges.[35] In this view, climate change has become a central marker of the Anthropocene, a characteristic feature of the Anthropocene narrative, and one of the most urgent existential planetary concerns, which, I will argue below, can only be governed by means of a planetary approach wherein law plays a central role

Law and a Planetary Perspective

Planetary Climate Justice

Conclusion