The Advance Interference-Like Effect of Climate Targets: Fundamental Rights, Intergenerational Equity and the German Federal Constitutional Court

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’.