Cautious scrutiny: The Federal Climate Change Act case in the German Constitutional Court

Abstract

In a unanimous decision of 24 March 2021, the German Federal Constitutional Court declared certain provisions of the Federal Climate Change Act (FCCA) unconstitutional. The Court upheld the greenhouse gas emission targets for the period until 2030 but found the outlined review procedure for the following years lacking: it failed to adequately specify targets, thereby violating the fundamental rights of the applicants. Despite the at times exuberant reception, this case note argues that the decision stopped well short of a legal revolution. Ultimately, the Court embraces an orthodox doctrine on positive obligations that emphasises deference to the legislature on climate change policy. Nonetheless, there are some genuine, albeit subtle legal innovations:(1) extending legal standing to applicants resident outside of Germany;(2) specifying general constitutional commitments to tackling climate change through the Paris Agreement, and (3) relying on a concept of intergenerational equity in the distribution of emission reduction burdens.

Facing the Future: Conceiving Legal Obligations Towards Future Generations

“…However, the reasoning of the court does not offer a sound doctrinal explanation (e.g., Calliess, 2021;Grosche, 2022;Kersten, 2022;Lenz, 2022;Theil, 2023). Its reasoning can be read in several ways but none of them are viable conceptually.…”

“…However, even though the decision is a remarkable step forward (U. Becker, 2023;Jahn, 2023;Kersten, 2022;Kotzé, 2021;Krämer-Hoppe, 2021;Lawrence, 2023;Theil, 2023), the doctrinal approach is not altogether convincing-inter alia because it was not fully developed and glosses over questions that it cannot leave unanswered.…”