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’.

‘For You Will (Still) Be Here Tomorrow’: The Many Lives of Intergenerational Equity

“…Departing from the calculus of an outstanding carbon budget under the Paris Agreement, the Court forged the new doctrine of an 'advance interference-like effect' that an inequitable distribution of carbon costs and benefits may exercise on fundamental rights. 124 A similar logic is found in Duarte Agostinho, which alleges that the disproportionate impact of climate change on those living in the future discriminates against generations to come. 125 Despite its potential for extending legal time horizons, however, casting children as future citizens is an unsatisfactory strategy from the viewpoint of 'thick' intergenerational equity.…”

The Possible Impact of Urgenda and the Klimabeschluss on Climate Litigation on the Example of the Petition Pending Before the Hungarian Constitutional Court

“…As Saiger explains, 'according to the court, a climate target that allows for the depletion of the remaining GHG budget constitutes an 'advance interference-like effect (eingriffsähnliche Vorwirkung)' on individual freedoms'. 27 The Constitutional Court notes that the 'risk of future restrictions on freedom gives rise to fundamental rights being presently affected because this risk is built into the current legislation. (…) Since future impairments of fundamental rights could potentially be set into irreversible motion today, and given that lodging a constitutional complaint to address the ensuing restrictions on freedom might be futile by the time the impairments have arisen, the complainants already have standing to lodge a constitutional complaint at the present time ' (marginal note 130).…”

Causality and the fate of climate litigation: The role of the social superstructure narrative

“…In its latest cover decision of COP26 4 Parties highlight the fact that climate change is already affecting every region of the world, but by continuing to focus on mitigation and development, while not financing loss and damage, the already‐occurring impacts of climate change today are not addressed. In order to more adequately address equity in all dimensions in the development of decisions under the UNFCCC and the Paris Agreement climate justice must be framed as to encompass equity and justice in a transboundary perspective and in the long‐term, as equity between generations, where each generation owes duties of justice to the next generation as a class (Minnerop JEL, 2022). The present narrow narrative of climate change as a future problem must be extended in the discourse about climate change as a present problem.…”

“…Most recent examples are, in particular, the order of the German Constitutional Court (published on 29 April 2021 5 ) stating that the climate protection act postponed more drastic emission reductions into the future. This ‘off‐loading’ of emission reductions into the future interfered with the fundamental rights of the young claimants, the current targets therefore had an ‘advance interference‐like effect’ ( eingriffsähnliche Vorwirkung ) (see further Minnerop, 2022). The Norwegian Supreme Court confirmed the finding of the Borgarting Court of Appeal that extraterritorial emissions from combustion of exported petroleum can pose a threat to the right of a healthy environment that is protected under Article 112 of the Norwegian Constitution (Minnerop & Røstgaard, 2021).…”