Consequential lawsuits: climate change does not override the law

The fight against climate change is increasingly being brought before the courts.

Since the signing of the Paris climate protection agreement in 2015, the number of climate lawsuits worldwide has more than doubled.

Another trend: the group of participants is becoming ever more diverse.

In this country, it is primarily private individuals, young people and organic farmers who complain.

They are mostly backed by non-governmental organizations that initiate test cases against politicians and companies.

Especially in the United States, the pioneer country of "climate change litigation", cities, districts and federal states are also conducting climate protection processes.

There are also climate plaintiffs in business, such as shareholders and investors.

But numerically, climate processes remain a marginal phenomenon.

Scientists who monitor global trends in climate lawsuits have listed just over 2,000 cases in their database.

Not even three dozen cases have been reported from countries in the Global South, which are particularly suffering from the consequences of global warming.

Nevertheless, one should not underestimate the potential of climate lawsuits.

The international scientific study also revealed that a good half of the proceedings ended in favor of climate protection.

To put it bluntly: the majority of the judges seem to be determined to “save the world by court order”.

The problems that judicial climate activism can create are obvious: the judiciary usurps the powers of the more democratically legitimized legislature and executive and overestimates its own possibilities in the fight against climate change.

Excitement is followed by disappointment

However, innovative climate judgments and judicial restraint do not have to be a contradiction in terms.

A prominent example of this is the climate decision of the Federal Constitutional Court of March 2021. At the time, the decision was praised as “epochal” and “revolutionary”.

The redefinition of the protection of freedom caused a stir.

The legislature must protect freedom not only in the here and now, but "over time".

He must operate climate protection in such a way that future freedom is not unduly restricted.

However, the excitement about this Karlsruhe innovation was followed by a certain disillusionment.

Because the direct climate policy benefits of the decision remained manageable.

The Climate Protection Act was tightened up, but Karlsruhe neither demanded nor brought about a transformation of climate protection policy.

Rather, the court has since pulled the brakes and dismissed all further climate protection complaints.

Nevertheless, one should not underestimate the consequences of the first climate decision.

The more global warming progresses, the more the fundamental right to protect the climate must be taken into account when making decisions.

With this requirement, Karlsruhe makes politics and administration permanently responsible.

The lawsuits raise difficult questions

It remains to be seen whether other courts will be inspired by the Karlsruhe decision, such as the European Court of Human Rights.

Climate complaints against dozens of countries, including Germany, are pending there.

But even in this country there are still explosive climate lawsuits.

In civil courts in Detmold and Stuttgart, test cases are being conducted against car companies in which the plaintiffs want to force the end of the combustion engine.

And the Higher Regional Court in Hamm is dealing with a Peruvian farmer's claims for damages, who hold the energy company RWE partly responsible for a glacier melt in the Andes.

The lawsuits raise difficult questions, such as the causality and attribution of climate damage.

Ultimately, the question is whether the existential threat posed by climate change justifies or even requires a reinterpretation of liability law in order to hold companies accountable.

There are many arguments against this: it would open floodgates that would overwhelm the courts and civil law, not to mention the financial consequences for companies held liable for climate change.

But what is crucial is that the danger of climate change does not overrule the law.

Failures in politics and business in climate protection are bitter and threatening.

But there is no judicial emergency law against this.

The civil courts in the ongoing proceedings should resist the temptation to follow climate plaintiffs on this downhill legal path.