Woodpecker et al. v. South Korea

This is a constitutional claim against the South Korean Government for failing to provide constitutionally required protection of the fundamental rights of the plaintiffs from the threat of climate change by setting the NDC at 40% reduction from 2018 levels in the Art. 3 para. 1 of the Enforcement Decree of the Carbon Neutrality Act. The claimed rights include right to life, right to pursue happiness, right to general freedom, right to property, right to healthy environment, State’s obligation to provide its people from disasters, and State’s obligation to protect the fundamental rights of the people. The 62 plaintiffs are children under age of five, including one fetus (named “Woodpecker”, who was later born after the filing of the case). The plaintiffs argue the current NDC (i) depletes South Korea’s per-capita-based carbon budget for 1.5 degrees and 1.7 degrees before 2030, (ii) falls short of the global reduction pathway presented in the IPCC 1.5 Special Report, and (iii) contributes to the Emission Gap pointed out by the UNEP. The plaintiffs argue that the current NDC will result in disastrous level of climate change leading to violation of their fundamental rights. On February 19, 2024, the Court merged the case with two other constitutional cases challenging the same NDC, and one case challenging the implementation plan of the NDC, the 1st Carbon Neutrality Basic Plan. The Court also set a public hearing for the case on April 23, 2024. On August 29, 2024, in a unanimous decision, the Constitutional Court found that Article 8 Paragraph 1 of the Framework Act on Carbon Neutrality and Green Growth violates the right to healthy environment under Article 35 of the Constitution, and ordered the National Assembly to amend the law by February 28, 2026. The Constitutional Court first acknowledged that the right to healthy environment under Art. 35 of the Constitution addresses the harm and risks related to climate change and that the State has an obligation to protect such rights by mitigating the cause of climate change and reducing the harm by adapting to climate change. The Court then ruled that in order to appropriately address such issue, the State's measures on climate change (i) must be based on South Korea's share of efforts in light of the global efforts based on scientific facts and international standards, (ii) should not impose excessive burden to the future, and (iii) must be based on legal framework that ensures continuous reduction of greenhouse gas. In light of these standards, the Court ruled that Art. 8 Paragraph 1 of the Act has failed to meet these standards by not prescribing any targets or plans between the period 2031 - 2049, which inevitably results in postponing of reduction efforts. The Court also ruled that the provision violated the "principle of legislative reservation" stating that the the framework of the reduction pathway up to 2050 must be set by law, by the Legislature, considering its implications on various fundamental rights, and the fact that the future generation has limited opportunity to present its interest in the process. On the 2030 reduction target set by the Enforcement Decree, the Court ruled that it is unable to identify a single standard or criteria to determine the appropriate share of South Korea in the global efforts and therefore cannot conclude that the target is in violation of the State's obligation. However, the Court also stated that it does not mean the State is doing its best on climate mitigation. On the Carbon Neutrality Plan, the Court was divided. The majority, 5 justices, opined the Carbon Neutrality Plan is unconstitutional because the 40% reduction is based on "gross emission" of the base year 2018, and "net emission" of the target year 2030. Because the base year excludes carbon removal by LULUCF and the target year includes carbon removal by LULUCF, the majority opinion ruled that the actual reduction efforts of the plan does not meet the stated 40% and has violated the mandate of the Enforcement Decree. On the other hand, 4 justices dismissed the claim stating that because the language of the provision of the Act did not distinguish gross emission and net emission, such discrepancy would not amount to unconstitutionality. As the Constitutional Court Act requires super-majority (2/3) for decision of unconstitutionality, the claim on Carbon Neutrality Plan was dismissed.