Weather extremes and climate risks -
do courts now have to speed up climate protection?

Dialogue forum in cooperation with acatech - National Academy of Science and Engineering on 5 December 2023

2023 was the warmest year since records began, and the damage caused by extreme weather events is increasing globally. But can we attribute individual severe weather disasters to climate change and hold certain actors or states legally responsible? Are climate lawsuits a way to stop climate change? The experts at the dialogue forum discussed these questions in depth. It was organised in cooperation with the German Academy of Science and Engineering - acatech.

Climate change is increasingly occupying the courts. The most prominent ruling came from the Federal Constitutional Court in 2021, as Prof Dr Martin Schulte from the Institute for International Law at TU Dresden explained: "I consider the decision to be groundbreaking because it set clear targets for climate protection."  The ruling by the Higher Administrative Court of Berlin-Brandenburg, which was published at the end of November 2023 and obliges the German government to do more to protect the climate in the building and transport sectors, also caused a stir. In turn, a climate action is pending before the European Court of Human Rights in which six young Portuguese citizens believe the European Convention on Human Rights has been violated.

Constitution provides direction

But is the path to more climate protection via court judgements at all effective? "The tasks are relatively clearly allocated in our constitution: Climate protection is primarily a matter for the legislator," Schulte emphasised. This is because decisions on climate protection are often associated with interventions in freedom of occupation or property and thus with problems relevant to fundamental rights. According to the doctrine of materiality developed by the Federal Constitutional Court, the legislator must legitimise state action in such fundamental areas by means of a formal law, i.e. make the essential decisions itself, said the professor.

However, climate lawsuits are already suitable for generating political pressure. The courts come into play when the applicable law is open to interpretation and offers starting points for conveying certain values. This so-called judicial development of the law is allowed if a law has an unintended gap. "However, inadequate climate protection is not an unintended gap in the law, but is solely due to political omissions and must first and foremost be articulated and dealt with at the political-parliamentary level," argued Schulte. As the Higher Administrative Court of Berlin-Brandenburg obviously sees this differently, the professor would not be surprised if the judgement were to be appealed. "It would then take a while before a final judgement. It is questionable whether this will turn out the way the plaintiffs imagine," he surmises. However, there are certainly voices in the legal community that are in favour of this type of innovative climate justice from the Higher Administrative Court, because this is the only way to advance climate protection. Courts can therefore accelerate climate protection, for example when it comes to administrative courts authorising or encouraging climate protection measures. Schulte concludes: "Climate protection remains a matter for the legislature, but it must implement the requirements of the Federal Constitutional Court. This is lacking in many respects."

Attribution research with major uncertainties

There is no doubt among scientists that climate change plays a role in the increasing number of extreme weather events. However, the extent to which individual events can be attributed to the global rise in temperature is still subject to great uncertainty. "Attribution research into this topic has found, for example, that the flooding catastrophe in the Ahr valley two years ago has become more likely by a factor of 1.2 to 9 due to climate change," explained Tobias Grimm, Head of Climate Advisory and NatCat Data at Munich Re. However, the trend in insured losses from natural catastrophes, which on average account for around a third of global economic losses, is clear. "Since 2017, the 100 billion dollar mark has been exceeded or the losses were close to it in five out of six years. This has never happened in the past," Grimm noted. Hurricanes in the USA, which tend to be stronger and bring more rain, are the main driver of losses.

Despite the higher losses, which are reflected in drastically rising prices for insurance policies in certain regions, risk awareness among the population is not particularly good. "People cannot deal with probabilities," said Prof Dr Drs hc. Ortwin Renn explained. He is a member of the acatech Executive Committee and worked for a long time at the Research Centre for Sustainability - Helmholtz Centre Potsdam. Renn cited the results of a survey according to which 95 per cent of people say that climate change exists, 75 per cent believe it is man-made, but only 30 per cent feel personally affected. The dilemma is that those who take climate protection measures and reduce their carbon footprint have to cut back, but see no immediate positive effects on the climate.

More honesty, more participation

In addition, too much alarmism is counterproductive because: "Catastrophic rhetoric paralyses." Instead, we should honestly address the burdens with citizens and show how the world could develop for the better after decades of transformation. "The prospect of a sustainable society for future generations comes up short in the discussion," criticised Renn. "You can't impose policy from an ivory tower, you have to take the population with you," added Munich Re expert Grimm. In addition to the allocation of pollution rights, i.e. CO₂ certificates, Renn is also in favour of agreements in the sense of more participation, such as energy cooperatives. In a manageable group, these co-operatives voluntarily focus on more renewable energies without the protests that would certainly be expected with a top-down regulation. 

The reinsurance industry can also help to decarbonise the world more quickly by exploring the limits of insurability, for example. "Our solutions for performance guarantees for wind turbines or solar parks offer the necessary security to invest in the development of new energy systems," explained Grimm. "I hope that we manage the transformation before it is forced upon us. Because if we don't manage it, we won't have a good future," fears Renn. Even if the continuing rise in CO2 emissions makes him rather pessimistic, collective optimism is a civic duty. "Because in order to do something, we need the confidence that things can get better." The ways to encourage as many stakeholders as possible to do more to protect the climate are therefore very different. However, the expectation that courts can accelerate climate protection is only true to a very limited extent.

 

11 December 2023