Intertemporal Freedom in the Historic Climate Protection Ruling of the German Federal Constitutional Court

1. The climate protection ruling of the German Federal Constitutional Court in Karlsruhe of 2021 is a historic decision (excerpts in English: here). It is on a par with the Court’s major landmark decisions such as Lüth, Elfes, or Brokdorf. It updates the fundamental value of equal freedom: Freedom includes future freedom and, as a right to intertemporal freedom, can demand a proportional distribution of freedom opportunities over time.

The decision shows once again that fundamental rights courts can “invent” and “find” rights at the same time: In the context of discovery, it created the right to intertemporal freedom as an innovation. But, in the context of justification, it also found that right in the constitution, as a convincing interpretation of existing law.  Perhaps the European Court of Human Rights in Strasbourg (ECtHR) will find some inspiration in it for its own upcoming climate decisions?

Strong scientific foundation and consistent constitutional conclusions

2. The decision is convincing not least because of its unusually strong scientific basis: the prediction of a devastating climate catastrophe if relatively clearly defined targets are not met. Based mainly on the findings of the Intergovernmental Panel on Climate Change (IPCC), the Court refers, for example, to extreme weather events (such as heat waves, heavy rainfall, hurricanes and forest fires), the risk of flooding along the North Sea and Baltic coasts, the drying out of soils and the flight and migration caused by climate change (23–28).

The power of this diagnosis is unlikely to diminish in the future. On the contrary, it will become more apparent with every summer heatwave. Germany has already reached 2.3°C of warming; global warming of three degrees would mean about six degrees in Germany.

3. The Climate Decision draws the legal consequences from this threat assessment. According to the decision, the goal of the Paris Climate Accords (to reduce the global temperature increase to well below 2°C, if possible to 1.5°C) and the goal of climate-neutral emissions result from two constitutional imperatives: firstly, the climate protection requirement of Article 20a of the Basic Law (hereafter: GG) and, secondly, the duty to protect derived from the fundamental rights to life, physical integrity and property. Although these two imperatives are not yet being violated, in the foreseeable future they will require massive restrictions on freedom, which will be all the more drastic the more hesitantly we reduce greenhouse gas emissions, because our remaining budget for such emissions (231-238) will soon be exhausted.

In this respect, the decision echoes the complainant’s figurative talk of the need for “full braking” (72, 12 and 192): We are driving towards a cliff. The longer we continue to drive at the current speed instead of slowing down towards climate neutrality, the harder we will have to hit the brakes later, when the constitutional climate protection imperative will (normatively inevitably) force us to stop all non-climate neutral activities. Because the “generosity” of today’s emissions regulations (120 and 117) will trigger such constitutionally mandated restrictions on freedom, today’s regulations have an “advance interference-like effect” (eingriffsähnliche Vorwirkung) (183) on virtually all freedoms (117).

The right to intertemporal freedom is the right directed against these advance effects of current state inaction on future exercises of freedom. The decision speaks of (all) “fundamental rights” as “intertemporal guarantees of freedom” (182–183). When I speak of “the” right to intertemporal freedom (in the singular), I mean the bundle of all the intertemporal rights flowing from different freedoms.

Three-tiered fundamental rights climate protection

4. The climate decision establishes a three-tiered climate protection through fundamental rights. It is as important to distinguish these three levels as it is to see their interrelation (cf. for other case notes in English: Aust with n. 5, 12 and 20).

The first level is the right to intertemporal freedom, which has been violated here. It prohibits the unilateral shifting of the burden of greenhouse gas mitigation to the future and demands that the opportunities of freedom be “proportionately distributed across generations” (183). The requirement of proportionality could “oblige the legislator to act in a forward-looking manner by taking precautionary measures” (194) – to ensure that the burdens of restrictions are distributed proportionately “from today’s perspective – while it is still possible to change course” (192).

The second level of climate protection through fundamental rights is the right to intertemporal freedom in connection with the climate protection requirement, which is part of the environmental protection command of Article 20a GG (189 et seq.). Like all encroachments on fundamental rights, interference-like prior effects are only justified if their legal basis (in this case: the Climate Protection Act) complies with all constitutional requirements, i.e. also observes the climate protection requirement of Article 20a of the Basic Law (189). According to the Elfes doctrine, any restriction of a fundamental right must be based on a law that is fully constitutional. This doctrine partially turns Article 20a GG into an actionable right.

The third level is the well-known duty to protect life, health and property of the people living here, following from Article 2 (2) sentence 1 and Article 14 (1) GG (143 et seq.). It reinforces Article 20a GG “by similar protection obligations arising from fundamental rights” (117 and 246).

Even if the rights of the second and third level are not (yet) considered to be violated, the statements of the decision on these rights are also essential for its holding.

This is because the climate protection requirement and the duties to protect are decisive reasons for the assumption of an advance interference-like effect on the liberties from which the fundamental right to intertemporal freedom is derived. It is precisely the climate protection requirement of Article 20a and the duties to protect that give “rise to the risk” (192) that excessively generous current emission allowances lead to restrictions on freedom, because these restrictions then become “legally inevitable” (1 BvR 1565/21, § 10) for constitutional reasons.

The advance interference-like effect, as the decision emphasizes, is legally mediated: “It is constitutional law itself” that will make it “all the more urgent to prohibit any further exercise of freedom” that is not climate-neutral – as “the finite” budget of remaining greenhouse gas emissions “is increasingly consumed” (187).

The first level: intertemporal freedom for all – but with limited enforceability before the Constitutional Court

5. The right to intertemporal freedom is aimed at intergenerational sustainability: It primarily prohibits older generations from imposing a “radical burden of reduction” on (already living) “subsequent generations”, so that these generations can only preserve their posterity at the cost of “radical abstinence” of their own (192–193).

It is true that the right protects all people (still) alive in the future – but it does not protect them all equally. Rather, out of statistical necessity, it will benefit younger people more often and for longer. Moreover, it will primarily oblige older people, who are more likely to be in positions of political power, not to cause disproportionate restrictions on freedom by their current omissions.

6. The Court rightly did not consider it an obstacle that countless people were violated in their right to intertemporal freedom by the inadequate climate protection law. The protection of fundamental rights requires individual concern, not particular individual concern.

If a bomb kills everyone in a town, that’s restricting everyone’s right to life, not nobody’s. Anything else would be cynical. If everyone is individually and massively affected at the same time, it is not that no one is affected, but that everyone is individually affected.

On the other hand, the decision has also made clear that the enforceability of intertemporal freedom at the Federal Constitutional Court has its limits. In two subsequent decisions, the Court did not take up complaints calling for more protective regulations at the level of the states (Länder) and a speed limit on highways. According to these decisions, state regulations do not have an advance interference-like effect because there is no obligation to reduce emmissions directed against certain states (1 BvR 1565/21, §§ 14–17). And constitutional complaints must “in principle be directed against the totality of permitted emissions” and not against specific individual measures (1 BvR 2146/22, § 5).

The decision also denies environmental associations a right of action before the Federal Constitutional Court as “advocates of nature” under the current legal situation, although it also points out that the environmental protection mandate in Article 20a GG “would obviously have greater impact if its enforcement were strengthened” by the legislator through the creation of such a right of action before the Federal Constitutional Court (136–137).

Rapid and “sustainable” implementation of the decision

7. The decision declared the provisions on the reduction targets for greenhouse gas emissions up to 2030 unconstitutional to the extent that they lacked update provisions for updating them for the periods from 2031 onwards in a manner “that satisf[ies] the constitutional requirements”, and ordered the legislature to provide such an update (operative part, and 4.).

However, this also cast a strong shadow of unconstitutionality over the reduction targets for the period up to 2030: Could an update that met the constitutional requirements really be a mere update that left the old targets unchanged? Would an implementation of the decision that was “sustainable in the truest sense of the word” not have to go beyond that (Aust)?

The decision was published at the end of April 2021, about five months before the federal election in September. The reaction to it was unusually swift and decisive. Notably, it was also unanimously welcomed by the governing parties. The Implementation Act was introduced in the Bundestag just a few weeks later and passed before the election.

By no means did it merely update the reduction targets for the period from 2031 onwards. In § 3 (1 and 2) of the Federal Climate Change Act, it also increased the reduction target for 2030 from at least 55% (compared to 1990) to at least 65%. For the period from 2031 to 2040, the reduction target is now at least 88%. The law also sets “net greenhouse gas neutrality” as a binding target by 2045 (instead of just calling the “commitment” to neutrality by 2050 a “basis” of the law, as it did before).

Rarely has a call for legislative action by the Federal Constitutional Court been so successful in such a short time.

The second level: intertemporal freedom in connection with the climate protection mandate of Article 20a GG

8. With the second level of climate protection, the right to intertemporal protection of freedom in connection with Article 20a GG, the decision “unfolds the state goal of environmental protection like a hitherto closed bud to blossom” (Schlacke, 915).

The Paris Agreement’s goal of limiting the rise in global temperature to 2 °C, preferably 1,5 °C, is now “the relevant standard under constitutional law” for concretising the climate protection imperative of Article 20a GG’s environmental protection command (197, 208–213). “Any reorientation towards weaker climate goals would have to be justified in the light of Art. 20a GG” (212).

Accordingly, Art. 20a GG also contains the goal of “achieving climate neutrality” of emissions in order to be able to stop warming before this temperature threshold (198). The more the climate changes, the more the constitution will, therefore, demand prohibitions of non-climate-neutral exercises of freedom (120 and 198).

The need for climate protection and the goal of climate neutrality gain “further relative weight in all weighing decisions of the state as climate change progresses,” for example, also in “administrative decisions on projects relevant to climate protection, planning et cetera” (1 BvR 2146/22, § 3).

9. The court rightly rejects the objection that “Germany would not be capable of preventing climate change on its own” (201–202).

If a drowning person is so heavy that three people on the shore can only save him together, then none of the three can excuse herself by saying that she cannot do it alone. On the contrary, each of them is obliged to jump into the water immediately to save the drowning person, even if the others do not jump in immediately (H. Paetzold).

Or, to use the image of “emergency braking”: If a group of people can only work together to slow down a car that is hurtling towards the abyss, each person must step on the brake immediately, regardless of whether the others join in at the same time.

In such situations of joint performance, there is an obligation to act unilaterally as long as there is a joint chance of success, even if that chance is small. The duty to act internationally in climate protection (201) therefore also includes the duty to strengthen mutual trust in compliance, if necessary by unilateral action (203).

The (objective) intergenerational duty to protect – and three other possible fundamental rights protections

10. In addition to the three fundamental rights levels of climate protection, the Court also recognised an (objective) “duty to afford intergenerational protection” to the life and health of future generations (not yet born) under Article 2 (2) sentence 1 GG (146, 148), even if they “do not yet carry any fundamental rights” at present (146).

In addition, the decision identified three further possible effects of fundamental rights, which it left open for the time being. First, it considered an extraterritorial effect of obligations to protect fundamental rights to be “conceivable in principle,” but as in any case not violated here “vis-à-vis the complainants living in Bangladesh and Nepal” (174). Second, there could be a fundamental right to an ecological minimum standard of living or to a minimum standard of living compatible with human dignity (114). And third, intertemporal freedom could also subjectivise the intergenerational duty to protect within its scope of application (191).

Dynamic interpretation and the distinction between the context of discovery and the context of justification

11. Did the Court “invent” intertemporal freedom only because the established duties to protect did not lead to the desired result of a violation of fundamental rights?

In fact, the contexts described suggest the opposite thought process: The right of defence against otherwise irreversible and clearly foreseeable restrictions of freedom, which will be imposed in the future by duties to protect, is not a duty to protect in a roundabout way, but something qualitatively different from the familiar duties to protect: intertemporal freedom.

12. Of course, the right to intertemporal freedom and the advance interference-like effect (of current emission regulations via restrictions of freedom that will be constitutionally mandated in the future) are certainly groundbreaking innovations, if one considers their emergence in the psychological context of discovery.

All textbooks and commentaries on fundamental rights have to take on a new, hitherto unknown fundamental rights function. For this reason alone, in terms of the sociology of scholarship, the climate protection decision has already secured a certain immortality.

This new fundamental rights function lies between a duty to protect and a defensive right against interference by state action: Like a duty to protect, it requires active legislative action. At the same time, however, it requires the state to refrain from future constitutionally required interventions.

It thus updates the fundamental value of freedom in a convincing way: freedom can also be the intertemporal freedom to be spared from future state intervention, which would otherwise be constitutionally required, by taking precautions to avoid this intervention as long as this is still possible.

In addition to this unusual combination of protection and defence against state intervention, the right to intertemporal freedom also rejuvenates the close link between freedom and equality in a novel way. Like all freedom, it requires equal freedom. But its egalitarian dimension is new, because it requires a proportionaly equal distribution of freedom opportunities over time: intertemporal equal freedom.

The long view of fundamental rights courts

13. Finally, a freely invented, speculative scene: It is summer or autumn of 2020. A Justice of the Federal Constitutional Court is sitting in her office on the Schlossplatz in Karlsruhe, looking out of her window into the distance. She is thinking about the constitutional complaint filed by Luisa Neubauer and her fellow campaigners from Fridays For Future. She has just experienced what seemed unthinkable before Corona: in a very short time, almost the whole of social life can be shut down by the state.

She has read the reports of the Intergovernmental Panel on Climate Change and notes how obvious the facts are: As the complainants rightly warn, unless more far-sighted planning and action is taken now, a Corona-like societal “full braking” will be necessary in the near future.

The Justice also reflects on the fact that the legislature has fewer opportunities and incentives than she does to look as calmly into the future as she is currently able to. She thinks that the very purpose of constitutions and constitutional jurisdiction is to impose long-term perspectives on a political process organised around short-term electoral periods (192). And she ponders whether fundamental rights, if they are to remain effective rights, must not ensure the sustainability of freedom beyond Article 20a GG.

14. Does the novelty of the right to intertemporal freedom already preclude that it can be a convincing interpretation of existing constitutional law? I think not.

Reichenbach rightly distinguishes between the context of psychological discovery and the context of justification. Even if a newly discovered fundamental right function does not fit into the old doctrinal pigeonholes, it can at the same time prove to be a convincing interpretation of positive law in the context of justification.

The fundamental rights of the German Constitution, the Basic Law, like those at the European level, were originally meant to develop dynamically (see here, p. 408–409). The task of the courts in such fundamental rights systems, which are deliberately designed as living instruments, is to apply those rights consistently to new circumstances and threats and to develop their interpretations accordingly. With its decision on climate protection, the Federal Constitutional Court has, in my view, done justice to this task.

This blog post is based on the German version (translated with the help of DeepL), which in turn is based on the written version of a conference speech held in Innsbruck in 2022: “Grundrecht auf Nachhaltigkeit – Das Recht auf intertemporale Freiheit nach dem Klimaschutzbeschluss des Bundesverfassungsgerichts”, in: Malte Kramme et al. (eds.), Nachhaltigkeit im Spiegel des Rechts, Verlag Österreich (forthcoming).