The Constitution's Responsibility for the Future - How the Debate on Climate Protection Contributes to the Development of Constitutional Thinking

 

Dear Professor Vasco Pereira da Silva and colegues,

I submit my paper concerning the challenge proposed by Professor Doutor Vasco Pereira da Silva “Climate Change requires Global Change of Law” in ELPIS v-LAW Review No. 5/2022. I chose Professor´s Rainer Arnold of Regensburg University article about The Constitution's Responsibility for the Future - How the Debate on Climate Protection Contributes to the Development of Constitutional Thinking, more specifically about the decision of the German Federal Constitutional Court on March 20^th, 2021.

The German Federal Constitutional Court declared a federal climate protection act partially unconstitutional, and this brought a lot of questions that were approached by Professor Rainer Arnold.

Before getting into the article itself, it’s important to know what the concept of climate change is and how we can confront it. Since the 1800s human activities have been the main cause of climate change, primarily due to burning fossil fuels such as gas and oil. Climate change refers to long-term shifts in weather patterns and in temperatures. Some of these changes are normal, like the natural variations in the solar cycle, but the ones we have been facing in the last few years are not. Climate change can really affect our health, our ability to grow food and, ultimately our survival against these impacts.

It is important to take action to fight the pressing threat of climate change while building more resilient infrastructure, protecting public health, and making progresses in environmental justice. There are many climate change solutions that can deliver economic benefits while improving our lives and protecting the environment. There are also global frameworks and agreements to guide progress, such as the Sustainable Development Goals, the UN Framework Convention on Climate Change and the Paris Agreement, whose three broad categories of action are cutting emissions, adapting to climate impacts and financing required adjustments.

There are many examples of things we can do to help the environment and reduce the emissions driving climate change, such as switching energy systems from fossil fuels to renewables like solar or wind, or reducing CO2 gas, that is the example given by the German Court.

Professor Rainer Arnold begins his article with a few important questions for environmental protection, that also lead into the foundations of constitutional law:

-        Do fundamental rights also protect against burdens that only occur in the future?

-        Do future restrictions of freedom already have pre-effects on the present moment, with the consequence that future restrictions of freedom already violate the fundamental rights to freedom now in the present time?

These questions bring other questions that also lead into the foundations of constitutional law:

-        Does the constitution also cover future matters?

-        Does it not only want to regulate the present time, but also the future?

-        Does the Constitution have a responsibility for the future?

-        Does the Constitution also protect people from future violations of their freedom?

First, we need to explain what Fundamental Rights are. Fundamental Rights are defined as basic human freedoms that every citizen has the right to benefit from to have a proper and harmonious development of personality. The Constitution offers all citizens, individually and collectively, some basic freedoms that are guaranteed in it. They do not have a time frame, they are not only applied in the present, but they are also meant to evolve and be seek in the future. To answer the question, fundamental rights must protect against burdens in the present and future time.

On to the next question, I think it´s important to start by talking about the notion of freedom, that was discussed by the German Federal Constitutional Court. This concept of freedom is associated with human dignity as an essential part in Democratic participation in shaping politics, the representation of the people in Parliament is evidently a necessary institutional part of the Constitution. Freedom also requires control of State action by the courts to ensure rule of law in our society. It also requires equality, a principal of institutional action.

To properly answer this question, we need to take a look at the example showed in court: the reduction of CO2 gas by a certain point in time.

The German Court believes that these restrictions on freedom will have to be made gradually and proportionality up to this point in time. German Constitutional Law dictates that a restriction on freedom in various times periods up to the final point in time, must be distributed appropriately. It would not be compatible with the responsibility of the Constitution for the future if citizens were to be spared too much in the first period. That means if little reduction of CO2 and little restriction of freedom were to be undertaken, but then in the later periods and all the greater reduction and all the greater burden on freedom would have to follow. This would then be an excessive measure that means disproportionate burden on freedom postponed on a later period. These actions must not create a greater burden for the people in the present than for the people in the future. It needs to be bearable and proportional for the present time and the future.

None the less, it is very important that politicians, the Government, and Legislation make these restrictions on freedom based on the Precautionary Principle. This principle first emerged in the 70s and it is often used in many international treaties on the environment. It enables decision-makers to adopt precautionary measures when scientific evidence about an environmental or human health hazard is uncertain and the stakes are high.

Opinions are divided when it comes to the method for determining when to apply precautionary measures, though most experts believe that the precautionary principle does not call for specific measures.

The following questions will be answered together on the next paragraphs. The Professor starts by examining the nature of the Constitution to see if it provides any insight into the temporal extension of the constitutional guarantees. The constitution is a legal basis of the state, it is created as a specific historical moment, but is intended to determine the basis for political and social life for an indefinite time. Professor Rainer Arnold adds that, if parts of any legal system are not written, it does not mean that it cannot be any Constitutional protection on it. The Constitutional system is designed for the long term, and it must necessarily include a future in its functionality. Constitutional law can and is, even in important questions, unwritten and must be interpreted from the overall system of the constitution.

I very much agree with the position of Professor Rainer Arnold, on the fact that the Constitution must regulate our political and social life. It must develop it´s normative effect for the entire period of its existence because the constitutional norms are biding and influence the entire legal system. The Constitution is also adaptive, meaning it must alter to changing circumstances and react to them - this is a living instrument, it is evolutionary.

I believe that it is up to politicians, the Government, and each countries electoral parties, to take all recognizable measures that are important for the present time and foreseeable for the future. They are the ones that must ensure a good future for our society by making the necessary changes and also taking efficient measures.

Finally, answering the last question, we have that the Constitution in the present time does not protect people from all future violations of their freedom, because it is still evolving and upgrading with time. Constitutional interpretation in the present time, must consider that the Constitution may only ever regulate the presence with the greatest possible consideration for the future, this applies to developments in environmental protection as well to developments, for example in the areas of finance or technological development.

In conclusion, careful planning for the future is not only a requirement for good policy but also a constitutional necessity. The constitution must adapt and make progress. Professor Rainer Arnold explains that it is a state´s duty and a constitutional duty to protect the citizens from the present burdens by defending their freedom and crucial fundamental rights. This idea of active protection from the states part, applies in the present time and the future and this was the basis for the decision of the German Court on March 20^th, 2021.

Francisca Mourato

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