Constitutional Court’s First Decision on National Greenhouse Gas Reduction Targets

Case Overview of the Constitutional Complaint on the Government’s Response to the Climate Crisis

Since March 2020, over 200 petitioners (including members of a youth environmental group and children aged five or younger) had filed various complaints with the Constitutional Court in connection with Article 42, Paragraph 2, Item 1 of the Framework Act on Carbon Neutrality and Green Growth for Coping with the Climate Crisis (the “Framework Act on Carbon Neutrality”) and related provisions, questioning the adequacy of the government’s greenhouse gas (“GHG”) reduction targets and associated administrative plans, and requesting the court to determine whether these measures ultimately violate constitutional rights to clean environment and the pursuit of happiness.

Following two public hearings and an extensive review process spanning four years and five months, the Constitutional Court rendered a decision on August 29, 2024, holding that certain provisions of the Framework Act on Carbon Neutrality are indeed in violation of the Constitution (Constitutional Court Decision 2020HeonMa389, August 29, 2024).

Highlights of the Constitutional Court’s Decision

In its examination of the legislative history of laws and administrative plans for GHG reduction targets, the Constitutional Court first identified the fundamental rights that are potentially at risk of infringement. It then looked into whether such rights had been infringed upon to the extent that the laws and administrative plans contravened the principle of minimum protection (a principle ensuring that the government has at least taken appropriate and efficient minimum protective measures to safeguard the fundamental rights of its citizens, hereinafter referred to as the “Minimum Protection Principle”) and the principle of statutory reservation (a principle stipulating that every government action must be based on statutes). The fact that the Constitutional Court rendered a comprehensive judgment on the merits of the case makes this decision particularly consequential and significant.

The key takeaways from the Constitutional Court’s decision are as follows:

Article 8, Paragraph 1 of the Framework Act on Carbon Neutrality: Unconstitutional (unanimous)

Subject of Review and Key Issues: Article 8, Paragraph 1 of the Framework Act on Carbon Neutrality mandates the government to establish a national mid to long-term target for reducing GHG emissions in consistent with the ratio prescribed by Presidential Decree of not less than 35 percent from 2018 levels by 2030. However, it does not specify any emissions reduction targets beyond 2031. The Constitutional Court examined whether this provision contradicts the Minimum Protection Principle or the principle of statutory reservation, thereby infringing upon the right to clean environment.
Decision: The GHG reduction targets established until 2030 cannot be deemed to lack the minimum attributes needed to serve as an effective safeguard in addressing the urgent climate crisis. However, the absence of specific quantitative targets for the next 19-year period from 2031 to 2049 amounts to a deficiency in mechanisms for ensuring a gradual and continuous reduction leading to the net-zero goal by 2050. This suggests that the current reduction targets are structured in a way that will likely result in significant burdens being placed on future generations. Such an approach undermines the Minimum Protection Principle and the principle of statutory reservation, thereby infringing upon the petitioners’ right to clean environment. Nevertheless, if the entire normative framework of the provision were to be abruptly invalidated, the existing quantitative interim goal would also be eliminated, leading to an even more unconstitutional scenario. In addition, considering that the legislators have an extensive right to craft legislation for reduction targets during the period from 2031 to 2049, the Constitutional Court has ruled that the provision remain in effect until a legislative amendment comes into effect (with a deadline of February 28, 2026) – although the Constitutional Court has found the provision to be in violation of the Constitution.

Article 3, Paragraph 1 of the Enforcement Decree of the Framework Act on Carbon Neutrality: Constitutional (unanimous)

Subject of Review and Key Issues: The Constitutional Court reviewed whether setting the GHG reduction target at 40 percent based on the Enforcement Decree of the Framework Act on Carbon Neutrality (in accordance with Article 8, Paragraph 1 of the Framework Act on Carbon Neutrality, which specifies that the rate must be “the rate prescribed by Presidential Decree of not less than 35 percent compared to 2018 levels”) violates the government’s duty to protect the fundamental rights and infringes upon the rights of the petitioners, who represent future generations, thus resulting in discriminatory treatment.
Decision: The 40 percent emission reduction target compared to 2018 emission levels is a mid to long-term goal that is set to be achieved by 2030. This is an interim target that is premised on a gradual and continuous reduction from the peak emissions in 2018, leading eventually to the net-zero goal by 2050. Establishing this specific reduction target level requires consideration of various factors and variables; therefore, it cannot be viewed as placing an excessive burden on future generations.

Carbon emission reduction targets set for each sector and year in the government’s plan: Constitutional (four for “constitutional” and five for “unconstitutional”)^[1]

Subject of Review and Key Issues: The Constitutional Court assessed whether the sector-specific reduction targets^[2] and the annual reduction targets^[3] – both components of the government’s “First National Basic Plan for Carbon Neutrality and Green Growth,” established on April 11, 2023 – are insufficient goals that infringe upon the petitioners’ right to clean environment. The Constitutional Court indicated that because it makes a determination on whether the right to a clean environment – the right most closely connected to the constitutional complaint – is infringed upon, it will not rule on whether the rights to life and the pursuit of happiness, as well as other rights claimed by the petitioners, have been infringed upon.
Decision: Regarding whether the government is in breach of the Minimum Protection Principle in connection with the selection and adjustment of reduction pathways and methods, the government may decide the specific form of these pathways based on its authority and responsibilities by taking into account the specific characteristics of the available reduction methods as well as various technical and economic factors. Consequently, it cannot be concluded that the government’s plan is in violation of the Minimum Protection Principle (unanimous consent). In addition, regarding whether the government’s method of determining emissions targets by referring to different emission standards – specifically, “total emissions” for 2018 (the base year) and “net emissions” for 2030 (the target year) – constitutes a violation of the Minimum Protection Principle or the principle of the supremacy of law (which stipulates that laws take precedence over other norms or standards), five Justices voted for the violation, while four Justices voted for dismissal on the merits.

Implications of the Constitutional Court’s Decision

The Constitutional Court’s decision is significant for several reasons. First, regarding the laws and administrative plans that establish reduction targets, the Constitutional Court confirmed that the primary fundamental right at issue is “the right to clean environment.” Second, the Constitutional Court thoroughly reviewed whether this fundamental right has been infringed upon under the Minimum Protection Principle and the principle of statutory reservation, in connection with the government’s duty to protect fundamental rights. Third, the Constitutional Court rendered a judgment on the merits of whether the act of setting reduction targets, which has historically been regarded as falling within the realm of broad legislative discretion, is unconstitutional.

Because of the Constitutional Court’s ruling on the unconstitutionality of Article 8, Paragraph 1 of the Framework Act on Carbon Neutrality, the government is now obligated to establish specific GHG reduction targets for the period after 2031. However, since the Enforcement Decree of the Framework Act on Carbon Neutrality and the mid to long-term reduction targets that have already been determined for the period until 2030 were held to be constitutional, this ruling is not anticipated to materially alter the government’s policies or the regulatory authorities’ enforcement practices. Additionally, the Constitutional Court concluded that the Nationally Determined Contribution (“NDC”) target for 2030, which aims for a 40% reduction in emissions compared to 2018 levels, does not impose an excessive burden on future generations. Consequently, the direct impact of this decision on the already established 2030 NDC target or the 11^th Basic Plan for Electricity Supply and Demand is expected to be minimal.

However, regarding the NDC for 2035, which must be submitted to the United Nations Framework Convention on Climate Change by 2025, the Constitutional Court’s decision – which mandates the establishment of reduction targets beyond 2031 and stresses the importance of not placing excessively heavy burdens on future generations – may have significant implications. Therefore, it will be essential to closely monitor future developments.

Following this decision of the Constitutional Court, it is anticipated that active discussions will take place in Korea regarding the government’s policies for responding to the climate crisis and emissions regulations in Korea and further, the government will likely be more proactive in taking part in such discussions. As a result, it will be crucial to stay updated and respond to emerging trends related to (i) amendments of laws and regulations introduced by the government and the National Assembly, (ii) the framework and allocation plans for the fourth commitment period concerning the Korea Emissions Trading Scheme, and (iii) the government’s policies related to GHG reduction. Lastly, as it is possible that more constitutional complaints would be filed by environmental organizations or concerned citizens in the future, and that the Constitutional Court may proactively make decisions on environmental issues, it is necessary to pay close attention to how the situation unfolds.

[1] For the Constitutional Court to recognize the unconstitutionality, there must be the quorum of six Justices.
[2] Established based on net emissions calculated by deducting the absorption amount from the total emissions derived after a 40% reduction from 2018 levels.
[3] Determined according to the overall annual net emissions targets, along with emissions and absorption targets by sector.

[Korean Version]

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