Martin Kment, Sophie Borchert

Intertemporalität in der Energiewende

Neukonstruktion des Umweltrechts unter verfassungsrechtlichem Einfluss

Jahrgang 147 () / Heft 4, S. 582-647 (66)
Publiziert 17.03.2023

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In German constitutional law a quantum leap has taken place lately. The Federal Constitutional Court established in its so-called »Climate Protection Resolution« dated 24 March 2021 that the German Basic Law »obliges to safeguard the freedom ensured by the basic rights throughout time and to distribute the prospect of that freedom between generations appropriately under certain conditions«. The idea of »intertemporal safeguarding of freedom« spreaded and has preoccupied jurisprudential experts since then. That is attributable to the multi-dimensional expansion of law. The court decision enables law, whose radius of action was formerly limited on the existing space, to enter a new dimension of time and stretch out along that axis. The court revealed the existence of something beyond perception which is nonetheless present and has to be considered in reality. Specifically, it referred to future scenarios which had not arisen yet and thus been a legal nothing so far. That restrictive view has become invalid due to the concept of intertemporality. The impact of the concept of intertemporality can be demonstrated with regards to energy and environmental law. In this area of law, legislation regarding the energy transition has been intensified at national level. In the course of two packages of measures, for the dates of their decisions familiarly known as »Easter Package« and »Summer Package«, numerous bills have been transposed in order to support the development of renewable energy. This process is not directly related to the climate protection resolution per se, as the latter discusses the issue of the reduction of climate-damaging greenhouse gas emissions in a way that burdens the concerned generations equally, whereas it does not affect the extension of climate-friendly generation of energy. However, with the intertemporal safeguarding of freedom the March-judgement of the Constitutional Court has created a legal institution that might support the new legal situation – with the proviso of transpositive capacity. Therefore, this article puts forward the thesis that the idea of intertemporal safeguarding of freedom can be applied to Environmental Law, exemplified on the basis of onshore wind power. It assists to confirm the constitutionality of the current legislative events regarding the energy transition. The verification begins with an analysis of the climate protection resolution. In this context, its essential elements, in particular the relationship between Basic Rights and ecology (B. I.), the contextual significance of Article 20a Basic Law (B. II.) and eventually the intertemporal dimension of Basic Rights (B. III.). The first part is followed by the explanatory introduction of selected aspects of wind power project planning (C. I.), the transposition of intertemporality into Environmental Law (C. II.) and the examination of its dogmatic reasonableness (C. III.). Subsequently, the findings are consulted to support the recent legislation in the area of energy transition (D. I.), with focus on section 2 of the Renewable Energies Law (D. II.). The article closes with a summary of the study (E.).

Martin Kment ist Inhaber des Lehrstuhls für Öffentliches Recht und Europarecht, Umweltrecht und Planungsrecht der Universität Augsburg und Geschäftsführender Direktor des Instituts für Umweltrecht.

Sophie Borchert Keine aktuellen Daten verfügbar.