Environmental Constitutionalism

While civil society and social movements claim for more effective measures to cope with anthropogenic climate change, legal scholars are witnessing the “aurora“ of climate change law and, to some extent, the idea of a climate constitutionalism is gaining its own space in academic debates. Within this double-process of recognition/establishment, the legal—and constitutional—dimension plays the tough role of securing compliance and making the main active subjects accountable for their actions. The argumentative pattern of the presentation assumes that each major means to combat anthropogenic climate change (namely science, politics and law) requires imaginative efforts and avant-garde approaches, in order to expose the transdisciplinary nature of climate change policies and legislation (that cannot be exhausted within canonical legal patterns), questioning the existence of the supposed—and ongoing—process of constitutionalisation of climate.

Financing measures counteracting climate change seems to be a clear constitutional imperative. The global annual investment gap for climate change mitigation is estimated at the level of $380-680 trillion with further $60-100 trillion investments into climate change adaptation. The scale of the investment challenge seems to be clearly beyond the capacity of the public sector alone. But even this part of financing that the public sector will have to carry will pose vast amounts. Further fiscal rules might be breached if one looks into current debt levels and the new amounts needed to counteract climate change. This opens discussions with constitutional dilemmas regarding accruing that much new public debt, e.g., is there a limit in burdening future generations? Or is our toolbox appropriate in this regard? The paper intends to identify some of those dilemmas, continue dialogue on financing climate action, and enrich it with constitutional perspectives.

The paper deals with the emerging concept of “sustainability“, that, according to the empirical research presented here, is mentioned in the text of 55 constitutions, very often in relation with the environment or with the rights of future generations. As the vast majority of those references consists of very general substantive provisions, needing a legislative or judicial implementation, the paper deals with the challenges raised by the “aspirational constitutions“ and with the role of the courts in their enforcement. Finally, it maintains that, in order to achieve effectivity, constitutions should include procedural provisions, aimed at integrating sustainability instances (throughout specialized bodies) into the legislative process.

In recent years, constitutional law has been forced to confront the increasing urgency of environmental crises. A range of proposals and practices have emerged in relation to constitutional design and interpretation. From the Chilean constitutional convention to the German Constitutional Court, constitutional actors are grappling with the environment‘s implications for the future of constitutional law. This paper analyzes this emerging concept of “environmental constitutionalism“. I argue that within particular proposals and practices of environmental constitutionalism are embedded a range of different ideas or “imaginaries“ about the role of constitutions, and the environment. There is no single imaginary, but rather at least three: technocratic, liberal-conservative, and transformative. As environmental constitutionalism gathers momentum, it will be increasingly important to pay attention to these imaginaries and the implications that they have for constitutional design.

Switzerland has engaged to take action to reduce its CO2 emissions. However, the Federal Parliament has so far not adopted convincing measures. As a result, citizens are losing confidence in the authorities and feel forced to take action of civil disobedience. The purpose of this paper is to examine creatively what legal measures are likely to address this legislative inaction. In this respect, it is important to underline that this is a particularly sensitive issue in Switzerland since acts of Parliament, including laws, cannot be brought before the Federal Court. Switzerland, on the other hand, is a country where the constitutional initiative is known. This raises the question of whether this tool is likely to compel the authorities to act. In this respect, it will be useful to draw inspiration from previous constitutional initiatives launched in the field of migration which have developed tools likely to ensure the rapid implementation of legislative instruments.