Green Constitutionalism

Preface

This book is the product of nearly six years of work. Published first in Fall 2023 in Turkish, you are reading the English version of the revised and updated second edition, which I translated myself. Most of this time was spent reading and thinking, and the last period was spent in intensive writing. As the title suggests, the book is a book of law (constitutionalism) written on a scientific subject (climate change). Moreover, the source of the problem it seeks to solve is economic (capitalism). While this is then necessarily a multidisciplinary study, climatology and economics are not my specialities. Although I have tried to overcome my deficiencies in these areas as much as possible, I may have made mistakes. If readers would like to correct me, contribute, or share any criticism, I would be happy to hear their thoughts. My email address is: <serkan.koybasi@bau.edu.tr>

Because of this multidisciplinary perspective, there are places where the book inevitably moves away from law. But I do not think this is wrong; on the contrary, I think it is the right thing to do. As you will read in the following pages of the book, the mechanistic approach, which is one of the main causes of the climate change problem, is quite common in the academic world. Today, academia is organised into relatively autonomous ‘disciplines’. The reason for this is the dominant view that scientific problems require scientific specialisations. However, this has led to disciplines losing contact with each other. Lawyers do not know much about biology; biologists do not know much about sociology; sociologists do not know much about climatology. However, suppose we accept science as ‘the endeavour to understand the functioning of the world’. In that case, we should take into account that the world is not a collection of independent parts and that everything is interconnected. Therefore, disciplines of science need to communicate and cooperate. Accordingly, I would like to point out that the multidisciplinary structure of this book is not only a necessity but also an aim to establish such cooperation.

The constitutionalism I refer to in the book is referred to by different words in different works. The more common terms are ‘ecological constitutionalism’ and ‘environmental constitutionalism’. I have avoided using the word ‘ecological’ because I find it too far removed from the social sciences. I also did not use the term ‘environmental’ unless it is necessary because I find it too anthropocentric. Instead, I have chosen to use the word ‘green’ to qualify the constitutionalism I propose in the book. I accept that this word has a political aspect, which is one of the reasons I chose it: the issue is very closely related to politics. Climate change is not just a climatological problem; it is also an economic and political problem. In the same way, law is not a field that can be understood only through legal science, but a system of rules that should be considered together with its economic and political roots and effects. Therefore, the reason why I chose this word is to emphasise that a new constitutionalist approach to tackling climate change will inevitably have a political dimension. Moreover, ‘green’ is neither the monopoly of a political party nor of any other group.

Finally, there are three people I would like to thank. Renin Yaykın is the first among them. Throughout our friendship, which started in high school and deepened at university, she has been influential not only in my thoughts but also in the formation of my character with her knowledge, political views and freedom. She read the book manuscript with incredible care, corrected my mistakes, gave me ideas and sometimes criticised and questioned me, helping my thoughts to mature. When I was tired or unsure of myself, her emails and messages were my biggest source of motivation. She has contributed a lot to making this book more accurate and more consistent. I am very lucky to have a friend like her.

Second, I would like to thank Prof Jennifer Curtin for inviting me to the University of Auckland as a visiting researcher at the beginning of 2024. Without the wonderful working environment, she offered me at the Public Policy Institute, this English version would not have been possible.

Finally, I would like to thank Colin Donovan, who has been by my side throughout this whole process and has always supported me. I look forward to being together in future adventures.

Serkan Koybasi
January 2025, Auckland

Abbreviations

ANC African National Congress

BP British/Beyond Petroleum

COP Conference of Parties

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

EPA Environmental Protection Agency

EU European Union

FIE Friends of the Irish Environment

FSC Federal Supreme Court

GDP Gross Domestic Product

GFCC German Federal Constitutional Court

IACtHR Inter-American Court of Human Rights

IEA International Energy Agency

IPCC Intergovernmental Panel on Climate Change

KSG KlimaSchutzGesetz (Climate Protection Act)

NAFTA North American Free Trade Agreement

NASA National Aeronautics and Space Administration

NDC Nationally Determined Contributions

ppm Parts per million

UK United Kingdom

UN United Nations

UN IPBES United Nations Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services

UNFCCC United Nations Framework Convention on Climate Change

USA United States of America

WHO World Health Organization

WTO World Trade Organization

Introduction

In Davos, where she was invited to give a speech, Greta Thunberg responded to the wealthy businesspeople who praised her for giving them hope:

I don’t want your hope. I don’t want you to be hopeful. I want you to panic. I want you to feel the fear I feel every day. And then I want you to act. I want you to act as you would in a crisis. I want you to act as if the house is on fire. Because it is.¹

She is right. That is no longer a metaphor. The average global temperature continues to rise, and forest fires are spreading across almost every continent, some of them on a gigantic scale. July 2023 was the hottest month on record. Temperatures exceeded 40°C in France, Italy and Greece, and thousands of people were forced to evacuate due to wildfires on the island of Rhodes.² In Phoenix, USA, temperatures did not drop below 43°C for weeks.³ According to the European Copernicus climate service, 2024 was the first year to pass the 1.5°C global warming limit.⁴ In early 2025, dozens of people and animals died, and many neighbourhoods were reduced to ashes in Los Angeles in wildfires fuelled by drought and Santa Ana winds. A total of 150,000 people were evacuated from their homes. This important city of the global film industry was like the star of a monster movie, and the monster was climate change.⁵ While some parts of the world are scorching hot, others are experiencing flash floods or more frequent and stronger hurricanes. The climate system that sustains life on Earth is in crisis. Understanding the causes of this crisis, preventing it, and strengthening social and ecological⁶ resilience is the responsibility of individuals, companies, institutions and states. However, in many parts of our planet, these continue to make decisions and practices that trigger crises and increase their impact instead of stopping their climate-damaging actions.⁷ They act as if climate change does not exist so the current order can continue.

Here is a huge contradiction: We live in a society where elites claim to rule in a ‘rational’ way, but humanity has never been confronted with such insane, such total irrationality, not even in the darkest periods of history.⁸ It is a mistake to believe that the threats of global warming are hypothetical and will materialise in the very distant future. Climatic upheaval means that in less than a century, the earth’s climate will change in a way that humanity has never experienced in the equivalent of the last 20,000 years. Some object to these scientific predictions that are not certain. Maybe not 100 per cent, but they are certain at least 90 per cent. Is it reasonable to drag our feet in the face of such a grave danger with a probability of occurrence ranging from 90 per cent to 100 per cent?⁹

The reason for this contradiction is actually understandable. Although climate change is now taken for granted by scientists and many people, it is difficult for managers and companies to accept that ‘uncomfortable information’ because it involves various obligations for them.¹⁰ If they fulfil these obligations, they will no longer be able to do what they have been doing: polluting the world and damaging the ecosystem without constraints. Therefore, they do not prefer this. At the point climate change is at today, it should no longer be up to their choice.

It is time to take drastic measures to prevent climate change. Because the ecological crisis we are in is worse than we usually think. We are not discussing a crisis that can be solved with partial measures while our lives go on as usual. What is happening is the simultaneous collapse of multiple interconnected systems on which human beings are fundamentally dependent.¹¹ If these partial measures have any function at all, they are cosmetics to conceal the depth of the ecological crisis. In so doing, they divert public attention and theoretical understanding away from an adequate understanding of the depth and scope of the necessary changes.¹² Climate change means global warming, loss of biodiversity, poisoning of the air, depletion of potable water, melting of glaciers and many other vital systems no longer functioning simultaneously.

Moreover, this problem does not occur slowly but rather rapidly. A common misconception about the climate crisis is that it is a future catastrophe. However, climate change is a disaster that is happening now, not in some imaginary future, and it will only get worse unless we do something about it. Therefore, the fight against the climate crisis is not for tomorrow but for the here and now.¹³

Recently, one of the most important symbols of global warming has been a polar bear on a melting piece of ice. This photo made it seem as if climate change was only happening in places ‘far away’ from us, such as the Arctic. However, climate change is happening everywhere simultaneously, and we know we do not have the technology to prevent it today,¹⁴ and we are not sure that we will have it any time soon. Therefore, we cannot rely on this uncertainty to go about our daily lives.

It is time to accept a simple but essential truth: We live in a dying world.¹⁵ Of course, death is not a foreign concept to us. History of bloodshed is indeed richer than it should be, with a record of horrific wars, unspeakable torture, massacres, and any conceivable violation of fundamental rights. Yet, climate change is different from everything seen before. It is the first time we are confronted with a threat to the disappearance of all organised human life in any recognisable or known form.¹⁶ For this reason, climate change is a common problem that requires collective action on a scale that humanity has failed to take.¹⁷ Unfortunately, the efforts made so far could not unite us around reason and logic.

Oxford University physics professor Raymond Pierrehumbert, lead author of the 2018 report of the United Nations (UN) Intergovernmental Panel on Climate Change (IPCC),¹⁸ one of the most important of these efforts, begins his assessment of current conditions and options as follows: Let’s put this on the table openly as soon as possible. Regarding climate change, yes, it is time to panic. We are in big trouble.¹⁹ This warning comes from a physics professor, bearing in mind that scientists are cautious; they do not usually say things that would cause us to panic.

There is also a political transformation due to climate change. The green politics of how to save the world as we know it is now ubiquitous. No longer just environmental movements disconnected from other struggles, but all political actors have to take a position on climate change. However, the issue has become part of a series of competing foci and is constantly being twisted and bent according to the different commitments attached to it. The result is a divergence of opinion bubbling beneath a superficial consensus. On the one hand, more and more people see climate change as a life-threatening development, but on the other, there is no consensus on the social forces driving this process – or the social changes needed to stop it. While there is broad consensus on the scientific side of the issue, politicians and voters are fragmented.²⁰ That makes it impossible to act together and make firm decisions. In the meantime, precious time is being lost.

Some political innovations have started to emerge. For example, some businesses have entered the carbon market.²¹ Action groups have mobilised against aviation expansion and coal power plants. Millions of people have signed up to voluntary emission reductions. However, the Earth’s temperature, sea level, and greenhouse gas²² emissions are still rising²³ because these measures do not approach the problem from a holistic perspective and do not focus on the root of the problem. Climate change is not a problem that can be solved with one or two independent fixes to the current system. The problem lies within the system itself. In other words, the entire capitalist economic infrastructure and the legal superstructure that protects it need to be questioned.

Nevertheless, we all, especially lawyers, have been taught to avoid a systematic and historical analysis of capitalism. Moreover, we were taught to separate almost every crisis created by the system – economic inequalities, violence against women, white supremacy, endless wars, ecological destruction – with sharp walls and not to look at the whole. Therefore, one of the most urgent tasks today is to use every means possible to show how inextricably linked the crises we are experiencing are and how they can only be overcome through an inclusive vision of social and economic transformation.²⁴ Taking this approach to climate change shows that neither scientists, politicians, nor lawyers alone can solve this problem. It is a problem that occurs everywhere and, in every system, and can only be solved through a multidisciplinary perspective and coordinated cooperation.

Climate change has usually been seen as an ecological crisis. Still, it is also an economic, societal, political, and public health crisis – a generalised crisis whose effects spill over into all areas, shaking confidence in established worldviews and ruling elites.²⁵ Everyone must seek solutions to this problem in their own sphere, but at the same time, these efforts must be managed harmoniously. That means – from a legal perspective – that the solution must be at the constitutional level. That is because a constitutional approach in line with scientific facts offers the only binding and fastest way to achieve a harmonised transformation of the entire legal system and, by extension, the political, economic and social structures. I call this approach to tackle climate change green constitutionalism.

According to available scientific data, human actions regarding climate are causing the biosphere to be transformed by humans. Therefore, in order to avert catastrophe, these human actions need to be channelled through political and legal institutions. Climate politics, therefore, constitutes the nexus of the Anthropocene²⁶ narrative and global constitutionalism – a growing field of research.²⁷ At this junction, green constitutionalism emerges as a legal approach that identifies the real problems at the root of climate change and provides permanent solutions to these problems by using data and information from other fields of science.

The problem we are facing today is vital and huge. We can only overcome it through a transformation as great as it is. What we have learned from both the Great Depression and the post-World War II period is that transformative victories cannot be won simply by opposing the violation of our own rights. To win in a real crisis, we need an approach that is as forward-looking as it is bold, a plan for how to respond to the underlying causes of the crisis and what we can do to repair them. Moreover, this plan needs to be convincing, credible, and, above all, inclusive.²⁸ Green constitutionalism is, therefore, not only about examining the legal causes of climate change (Part I) but also about how to build a new constitutional order in harmony with nature (Part II).

The choice before us is between the continuation and eventual crush of the current unsustainable system, which is heading towards the self-destruction of humanity, or the development of a sustainable relationship with the Earth, which requires the creation of a new ecological civilisation. Humanity is facing the greatest challenge in its long history. It can only be overcome if we bring about a worldwide revolutionary transformation of social and ecological relations.²⁹ There is no time to waste. The struggle must and can be fought on all fronts.³⁰ This book aims to contribute on the constitutional law front to the efforts for the transformation we urgently need.

PART I The relationship between the current constitutional order and climate change

In the current era of climate change, constitutionalism should be taken out of the classical legal approach, where it is stuck between the modern concepts of nation and state, and be given a broader perspective. Thus, constitutionalism should be conceived in the context of protecting the fundamental values of the global community. This idea of a material constitution is closely related to its use by the courts as legal norms used to limit and control power. Accordingly, we should consider how certain legal norms can create material limits for climate change policies and how the consequences of decision-making processes in a global context can be taken under control by the courts.³¹ Moreover, it should be possible that not only the norms written in constitutions but also some principles that are not written in constitutions could be recognised by the high courts on a constitutional or even supra-constitutional level against climate change.

From this perspective, the constitution moves out of its narrow meaning as a public law text emanating from state authority and at the top of the usual hierarchy and constitutes the essence of a changing social consensus that emerges in different texts and aims to build a legal framework for global governance.³² Nevertheless, constitutional law is, of course, not just about the text of constitutions. It covers a broader field, encompassing all the regulations and principles necessary to limit power for a dignified and healthy life. In the context of climate change, constitutionalism is taking on a new look that serves the purpose of identifying, limiting and sometimes preventing the root causes of the problem in order to sustain life on Earth.

The movement called constitutionalism emerged in the Age of Enlightenment. Its primary function was to replace the old traditions that had provided ample scope for arbitrary action by the powers that be. Written constitutions were used to limit absolutism and sometimes the despotism of monarchical powers. Constitutionalism is, therefore, historically about the limitation of power.³³ From this perspective, what is constitutional and what is not has always been a political issue. Moreover, what constitutes power and what constitutes the limits of that power have constantly changed throughout history. As an example of how old constitutionalism played a role against the rulers, in 1768, the Massachusetts House of Colonies declared the law passed by the London Parliament on the payment of taxes by the colonies in the Americas as ‘unconstitutional’ because it violated the ‘natural constitutional right’ to property.³⁴

In this book, the term constitutionalism is used in this historical framework to limit power. But with one crucial difference. The power that the colonies tried to limit was the Kingdom of England. Similarly, the absolutism that the French bourgeois tried to limit in 1789 was their king’s. In general, rights and freedoms are still used today as concepts that enable the limitation of state power. Today, however, another power is even above the state and has state organs and rulers in its employ: the capitalist economic order. This order has no clear ruler; the heads of many giant corporations rule it. It is such a power that is everywhere and in everything. There is nowhere else we can escape to. We cannot even imagine getting out of its order. In history, it has destroyed the alternatives it faced, and it is doing the same today. Capitalism has established both a physical hegemony in our lives and an intellectual hegemony in our minds.

Constitutionalism requires the limitation of such power for its very raison d’être. In addition, today, there is an even more important reason to limit the capitalist economic order: climate change. What I call ‘green constitutionalism’ in this book refers to the movement to limit this hegemonic system that confronts us with a global and vital threat. Just as the bourgeoisie used constitutionalism against the absolute power of the time, the king, in order to create its own survival space, we must today use constitutionalism against the hegemonic order established by the bourgeoisie in order to save humanity and the planet.

At the time of the formation of the modern state, kings saw themselves as the source of the law, with direct or indirect reference to Roman law, but they did not embrace the idea that they themselves were subject to the law. One of the meanings of the concept of ‘absolutism’ when it first emerged was that the king was legibus solutus: since the law was a product of the king’s sovereign power, it could not subordinate or limit that power.³⁵ Today, we have moved beyond this idea. In fact, it is generally accepted that there cannot be a limitless constitutional body. Accordingly, all organs exercising sovereignty are constitutionally regulated and, therefore, limited.

However, there is one economic class that has not been limited and even constitutionally liberated in modern times. Its traces can be found at the deepest roots of the climate change problem: the bourgeoisie. The links between the emergence of this class, the founder of today’s economic infrastructure, the architect of the modern constitutional and political structure, and the onset of climate change are today more visible than ever. The bourgeoisie, which limited the absolutism of kings by using constitutionalism in its favour, created the current constitutional order. Today, the constitutional state and the bourgeois state are identical.³⁶ However, the bourgeoisie, which argued that absolutism must be limited for rights and freedoms to emerge and survive and succeeded in putting this idea into practice, has turned itself into an absolute sovereign today. Just like the Roman kings, it thinks it cannot be limited. Indeed, in the current constitutional order, while all organs can be limited, those related to the economy can operate independently and autonomously, free from all restrictions. Even attempts to regulate them are met with great reaction. However, if we sincerely want to stop climate change, we must urgently consider and even succeed in using constitutionalism to limit today’s absolute power, the bourgeoisie, and the capitalist infrastructure it has created. To do this, we must first get to the root of the problem and examine the emergence of the current constitutional order from a green perspective.