What is the role of law in combatting climate change?
I understand law as being deeply intertwined with politics. Law is not only a product of politics but also a place for politics. In defining what is legal and what is not, law legitimises some forms of behaviour and delegitimises others. Currently, the law at large still enables major emitters to externalise the costs of their contribution to climate change. Their activities are shielded by individual rights as applied to corporations, regardless of their adverse environmental effects. A particularly glaring example in this regard is the protection of climate-damaging investments under investment law. Thus, the law legitimises fossil extractivism.
But one can imagine a different law that delegitimises fossil extractivism. An emerging approach in this regard is the recognition of rights for natural entities. Considering how easily we got used to legal persons, like corporations, as rights-holders, the underlying idea is not even particularly far-fetched. Nevertheless, I am sceptical if rather indeterminate rights of nature are the best way forward. Instead of introducing more rights that may serve as counterweights in the act of judicial balancing, one might be better off eliminating existing laws that legitimise fossil extractivism in the first place.
In short: just as law is part of the problem, it must be part of the solution.
Your research discusses tensions between climate change and democracy. What are those tensions?
Several aspects of climate change make it a particularly difficult policy issue for political orders that rely on the idea of cyclic self-government. Allow me to limit myself to one of these aspects here: the long timescale of climate change.
Democracies typically have short timescales. Their fundamental commitment to the principle of discontinuity encourages policymakers and voters alike to think in time intervals of fiscal years, legislative terms, and election cycles. While this does not render democracies generally unable to make future-oriented policy decisions, it does make democracies prone to the natural human tendency of favouring short-term over long-term results. That is why democracy as a form of government has been diagnosed with a short-term bias or myopia.
Climate change, on the other hand, has a very long timescale. Due to the long residence time of many greenhouse gases in the atmosphere, it takes centuries and millennia to fully unfold - and even longer to reverse, if at all possible. Even if we woke up to a world of net-zero emissions tomorrow, the already-released greenhouse gases since the start of the Industrial Revolution would keep warming the Earth. Thus, today’s climate policies do not primarily serve to protect current electorates, but future ones. This makes climate law and policy an inherently intertemporal issue that is inextricably linked to philosophies of intergenerational responsibility and justice.
The conflicting timescales of democracy and climate change pose a difficult question: how can we curb the short-term bias of democracies and better incorporate the interests of future generations? A radical idea in this regard is the introduction of a voting system that weighs votes according to age. In such a system, the relative weight of a vote would correlate with the remaining life expectancy of the voter, giving younger voters more political impact. However, weighted voting would also mean laying an axe into the one-person-one-vote principle - and thus to the principle of formal equality. That is why it is more convincing to resort to institutional solutions for the representation of future generations’ interests.
Lately, especially courts confronted with strategic climate cases have assumed this role. The German Federal Constitutional Court’s Neubauer case serves as a prime example of this trend. And yet it is questionable if counter-majoritarian courts that can only rule retrospectively and on external initiative are suitable institutions to shape future-oriented policymaking. A better alternative could, for example, lie in the establishment of a randomly selected permanent assembly with the power to veto climate-relevant legislative proposals and initiate its own. The members of such an assembly could certainly not entirely free themselves from human myopia. But their random selection would at least guarantee a certain level of independence and impartiality.
Some of your work also discusses climate litigation, which the UN's Global Climate Litigation Report of 2023 described as a “frontier solution to change the dynamics of the fight against climate change.” But is it an effective one?
That is an empirical question that I would not dare to answer at this point. But let me say the following: climate change is an inherently distributional issue, and distributional issues tend to be heavily politicised. Just think about issues like pension insurance or inheritance taxes. Policy decisions that target such issues require immense social backing. And it is a valid question if counter-majoritarian courts are the right institutions to create such backing and bring about lasting social change - especially if the distributional issue in question is so much more complex because of its long timescale and global collective nature.
This empirical question should not, however, be conflated with the normative question of whether courts have the authority to decide strategic climate cases in the first place. It is quite a common claim in the debate about climate litigation that courts should stay out of the realm of politics because of the separation-of-powers doctrine. Politics for parliaments, law for courts—that is the underlying assumption. What the case law reveals is that courts from different jurisdictions come to very different conclusions in this regard. If we look at the U.S., for example, even progressive courts have, so far, mostly refrained from hearing strategic climate cases. In Europe, on the other hand, courts have been more activist, setting out binding mitigation targets by injunction. Finally, in Colombia and Pakistan, courts have taken it even further, striking down climate-damaging statutes and establishing new legal bodies. But which judges are right in how they view their institutional role?
What my comparative research has shown is that climate litigation has become a highly diverse phenomenon that requires a more nuanced separation-of-powers analysis than typically performed by its critics. First of all, climate litigation today relies on very different types of action. To give an example: after a first wave of so-called "ambition cases" that sought to get more ambitious legislation enacted, there is now a second wave of enforcement cases that tries to get already-enacted legislation enforced. Here, the different types of action - first directed against the legislature, then directed against the executive - naturally warrant different separation-of-powers analyses. Second, climate cases are decided in fundamentally different constitutional contexts. Judges from the U.S. might, for example, view themselves as bound by an established political question doctrine, while judges in Pakistan or Colombia might perceive themselves as agents of transformative constitutionalism.
Sven Siebrecht is a Ph.D. candidate at Leuphana University Lüneburg and an associated member of the DFG Research Training Group DynamInt at Humboldt University of Berlin. He holds law degrees from Georg August University of Göttingen (2021) and Harvard Law School (2024). Currently, he is a visiting student at the EUI Department of Law.