(No) freedom without emissions: How optimistic can politics be?

In 270 paragraphs, the judges of the First Senate of the Federal Constitutional Court attempt to reconcile the normative with the factual in their "Climate Protection Decision" published on 29 April 2021. The decision gives an idea of how the court intends to deal legally with technological progress in the future and states that

• we are already affected today when decisions can no longer be corrected later,
• adaptation measures may be sufficient to protect health - protection of health, life and property in Germany alone do not oblige us to protect the climate,
• the German constitution (Grundgesetz, GG) only allows us to emit a limited amount of CO2 and that after that, it is justiciable to stop (with all the consequences for our civil liberties),
• politicians must not merely hope that technology will save us, but that legislators must only rely on what is already recognisably possible today, and
• in the field of climate protection, the legislature must be held to its agreements concluded at the international level in accordance with Article 20a GG and must concretise them in constitutional law.

Every CO2 emission today means less freedom tomorrow. The judges in Karlsruhe based their argumentation on this logic. They thus put a stop to the appeal to the conceivable (saving) innovations of tomorrow.

Contrary to the first impression, this argumentation is not based on the image of a lower-emission future.

The logic of the compelling causal relationship between freedom and emissions is what makes it possible in the first place to see today's excessively low annual emissions as a threat to tomorrow's freedom: Those who instead no longer need a CO2 residual budget tomorrow, because freedom without emissions is possible, could still throw emissions around generously today.

The resolution is a warning shot and knocks down stakes: Do not assume that innovation will save us! Assume that tomorrow, too, freedom will be synonymous with harmful emissions and will continue to eat up our residual CO2 budget!

It is a threatening scenario that is supposed to promote innovation while ignoring the same (for good reasons?). The future will show where the Federal Constitutional Court will still let politicians get away with referring to future innovations: How optimistic can politics be? And how serious must future encroachments on fundamental rights be in order to regard today's inadequate prevention as unconstitutional?

From now on, this question will also be answered in Karlsruhe and will fill even more than the 110 pages of decision paper summarised in the attached briefing (German language only).

Co-Author: Jonathan Schramm