Wilfried Erbguth

Zeitschrift für Europäisches Umwelt- und Planungsrecht, Volume 22 (2024), Issue 1, Page 3 - 14

Climate protection and climate adaptation primarily require planning control and management. In this respect, primary EU law, but also national constitutional law, requires an integrative and primarily spatial approach. This stands in the way of the creative introduction of ever new sectoral, i.e. technically oriented, planning instruments, especially since climate protection itself must simultaneously include health protection and species protection. In view of this, it is important to understand spatial planning at the supra-local level as master planning in the field of climate protection and adaptation and to design it accordingly. To this end, the article develops more detailed proposals for further legal development and incorporates earlier ideas.

Wilfried Erbguth

Zeitschrift für Europäisches Umwelt- und Planungsrecht, Volume 21 (2023), Issue 1, Page 23 - 31

In its decision of 30 June 2020, the Federal Constitutional Court granted protection of legitimate expectations for frustrated investments in the approval procedure for the erection of wind turbines in the exclusive economic zone, but only with consideration of the affected parties and not on the basis of fundamental rights under Article 14 (1) of the Basic Law or Article 12 (1) of the Basic Law, but rather under Article 2 (1) of the Basic Law in conjunction with Article 20 (3) of the Basic Law. Article 20 (3) GG on the basis of the standards of retroactivity under the rule of law. In contrast to the overwhelming acceptance of the decision in the literature, the article criticises the rejection of the use of the fundamental right to property, but also the derivation of the said duty of consideration.

Wilfried Erbguth

Zeitschrift für Europäisches Umwelt- und Planungsrecht, Volume 20 (2022), Issue 3, Page 257 - 266

The Federal Constitutional Court's KSG decision has rightly caused a stir, not only in the politically affected area, but also in legal sciences. On closer examination, however, doubts arise as to the persuasiveness of the intertemporal safeguarding of freedom pursued by the Court, especially the associated fixation on civil liberties. Since the issue in question was and is the distribution of a severely limited residual budget of greenhouse gas emissions in a limited period of time, it would have been more appropriate, because of the implied interrelatedness of the fundamental rights positions to be safeguarded under Article 2 (1) of the Basic Law („Grundgesetz“) inter alia, on the one hand, and Article 2 (2) sentence 1 of the Basic Law, on the other hand, to focus solely on the principle of equality under Article 3 (1) of the Basic Law - and within this framework to carry out an overall consideration of those fundamental rights positions and other related interests.