Abstract
ABSTRACT Some climate lawsuits qualify as landmark cases, because they either mark an unexpected turning point in environmental jurisprudence, or they introduce a new conceptual analysis of the law vis-à-vis the global challenge of climate change. The decision of the German Federal Constitutional Court from March 2021 meets both criteria, it has already defined climate policy and law-making in Germany, and it revolutionised the traditional concept of ‘interference’ with fundamental rights under the German Basic Law. This article examines the order and its significance for climate litigation, legislation and constitutional doctrine, and it analyses how international law defines the state’s objective to protect the climate pursuant to Article 20a Basic Law, including for future generations. On that basis, the article argues that the Court's approach towards intergenerational equity remains limited due to the perception of the carbon budget as ‘freedom budget’.
Highlights
In a decision published on 29 April 2021, the First Senate of the German Federal Constitutional Court held that the four constitutional complaints against the Federal Climate Change Act of 12 December 2019 (CCA) concerning the national climate targets and the annual emission amounts allowed until 2030 were partially successful.[1]
The Court explained that the legal duty to protect fundamental rights (’Schutzpflichten’) under Articles 2(1) and 14(1) Basic Law could be violated because the CCA until 2030 allowed the country to produce a too generous amount of greenhouse gas (GHG) emissions until that point in time.[34]
3.2.1 Defining the constitutional yardstick The Court found that as a result of the dangers posed by climate change, duties to protect arise from Article 2(2) first sentence and Article 14(1) Basic Law in relation to the complainants who live in Germany, and that such duties could, in principle, apply vis-`a-vis the complainants living in Bangladesh and Nepal, albeit with a different content than within Germany.[46]
Summary
In a decision published on 29 April 2021, the First Senate of the German Federal Constitutional Court held that the four constitutional complaints against the Federal Climate Change Act of 12 December 2019 (CCA) concerning the national climate targets and the annual emission amounts allowed until 2030 were partially successful.[1].
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