Prof. Dr. Peter-Christoph Storm
Law and care of the environment
Development phases and trends in environmental law
Trend towards compaction and specification
Trends towards continued ecological development
Trends towards standardisation
Trends towards applying “indirect strategies”
Trends to promote or adopt supranational and international developments
Areas regulated by environmental law
Substance-related care of the environment
Site-related care of the environment
Environmental law: the perspective
The concepts of economic order and social order are well-known in Germany; the term environmental order is however largely unknown and is common neither as a set phrase nor as a concept. By giving the examples of economic order and social order, however, I am also giving some indication of the direction considerations surrounding environmental order are taking: economic order, comprising private ownership of the means of production and competition, and social order, marked by social justice and social security, must be expanded to include environmental order so that the economic system which prevails in Germany and in the European Union can, with justification, be called a social and environmentally sound market economy. Environmental order, understood as the whole gamut of regulations and institutions serving the protection, care and development of the natural foundations of human life, is geared towards the sustainability and standardisation of care of the environment. It is more than peripheral short-term environmental protection effected on a case-by-case basis to ward off risks; rather it means blanket, comprehensive and long-term protective care in line with the enduring responsibility we bear for the world around us, for the world we share with others and for the world of the generations to come.
The issue of whether and to what extent Germany is on the way to having environmental order can be resolved by attempting to answer the following questions: What is the role of legislation in protecting the environment and safeguarding man’s natural foundations of existence? How has environmental legislation progressed since 1970 and what trends can be observed in modern German environmental law? How, at the dawn of its fourth decade, can environmental law engender an environmental order which not only realises the national objective enshrined explicitly in the Basic Law, but also is the characteristic feature of a market economy modelled on sustainable development?
During and after the First World War, law was given an “economic nuance” and thus became economic law; today environmental law has, with the newly created concept of environment policy, been subsumed in giving an “ecological nuance” to legal norms in public law, criminal law, private law and international law, designed to protect and look after the natural foundations of human life, in other words care of the environment. I prefer here to speak of care of the environment as opposed to environmental protection since this term lays particular stress on structuring and preventative aspects rather than on the warding-off of dangers. Traditional legal areas such as water law and immission control law and more recent fields such as nature conservation law are, under environmental law, linked to new regulatory areas such as protection against hazardous substances and the environmental impacts of genetic engineering, the avoidance, recovery and disposal of waste, soil protection, energy saving, radiological protection and nuclear safety. On the whole, environmental law gears legal provisions with an “ecological nuance” to the new-found objective of protecting and caring for the environment, in other words the environmental media soil, water and air, and flora and fauna including climate, landscape and the eco-balance as well as the relationship between these sectors of the environment both among themselves and with man.
Environmental law gears human actions on the basis of the principle of prevention, the polluter-pays principle and the principle of cooperation. What do these principles, which determine environment policy and environmental law in Germany and the European Community, mean?
Firstly, let us look at the principle of prevention, the material leitmotiv for environment policy. The early application of measures founded on this principle is designed not only to ward off danger and remove damage, but also to prevent potential negative environmental impacts from arising at all – if possible at source and by means of risk-reduction – so as to achieve sustainable use of the environment, providing care for the assets at stake. The term use of the environment is, as I understand it, not only use for the health and economic concerns of mankind. Use of the environment rather extends very much to all benefits brought to mankind both now and in the future from the careful and sparing use of an environment, the quality and quantity of which is secured, protected and cared for. This understanding does not exclude the protection and care of environment assets for their own sake as intrinsic values, as former Federal President RICHARD VON WEIZSÄCKER noted in 1986: “Only when we protect nature on its own merits will nature allow us men and women to live.” This must not of course be understood to mean that environmental media are accorded intrinsic rights – in other words subjectivity under law. The capacity to enjoy rights and obligations should also in future be confined to men and women as natural and legal persons since care of the environment is not an end in itself: in the final analysis it is always carried out for the sake of the human person.
The second concept, the polluter-pays principle, must be understood as a fundamental allocation of costs but not automatically also as a principle of allocation of responsibility. Costs incurred to avoid, remove and compensate damage should be allocated to the party responsible. This also serves to avoid distortions in competition. Where no allocation of costs is possible because the individual polluter cannot be identified (for example in the new types of forest damage where there is no proximity between damage and polluter), the costs must, exceptionally, be borne by the community as a whole in line with the principle of common burden.
The third principle, that of cooperation, means that care of the environment is a common task of both the State and citizens and must, as far as possible, be effected in cooperation between the two. In the relationship between State and society, participation of those involved is designed to improve environmentally significant decision-making and facilitate acceptance without blurring the distinction in the areas of responsibility of the three powers of the legislative, executive and judiciary and also taking account of the principle of democracy and the rule of law. Early involvement of those concerned can also lead to voluntary change in behaviour so that the State need no longer adopt prohibitions or orders in the particular field at hand. This helps avoid proliferation of red-tape. Involvement in environmental decision-making means taking on responsibility for care of the environment.
The standards to be met either now or in the future by the environment or a part of a certain environment both as regards quality and quantity may be subsumed in the term environmental quality. Under the principle of immissions (from the Latin immittere = to send in), these standards can be expressly termed environmental quality standards and anchored in law, especially by determining certain limits on human interventions which may not be exceeded – for example in laying down immission levels for air quality control. The standards may also emerge along the lines of the principle of emissions (from the Latin emittere = to send out) as a result of the application of geared legal measures to avoid or reduce human impacts on the environment at source, for example by determining, in line with the state-of-the-art, emission levels for hazardous substances to be emitted into water bodies. Standards of immissions and emissions are regularly linked.
In taking on the task of caring for the environment, law has a threefold function, the most significant being its existential function in care of the environment. Law is designed to secure mankind’s life, survival and health and give men and women an existence worthy of human dignity. On the other hand, the existential function is complemented by the social function whereby environment law helps provide facilities for people to relax in and enjoy the natural environment and the landscape. Thirdly, law also has an aesthetic function when it allows us to experience the diversity, uniqueness and beauty of the environment.
If we look at environmental law as it stands at the moment in Germany, with 30 individual Federal laws alone, and the way it desires to fulfil these functions, it may well appear as a framework of provisions which seem more rough-edged, non-uniform and badly constructed than properly thought-out. Both its internal and external plans of construction appear unclear, difficult to understand and flawed. Moreover, each crisis situation deemed to be able to be resolved by means of environmental law reopens the discussion on the effectiveness and further expansion of environmental law regulations and leads to a renewed evaluation of the application of the “correct” legal instruments and the role of law in care of the environment. This applies not only to events such as the nuclear accident in Chernobyl and the fire devastation of the Schweizerhalle near Basel in 1986 where the source of damage to the environment was known, as was the point in time when it occurred; rather it also applies to environmental damage where the time and source cannot be determined, such as the new types of forest damage, large-scale detrimental impacts on the soil, damage to buildings and monuments and global climate change.
The first ten years of environment policy from 1970 to 1980 were initially marked by the warding-off of risks to deal with individual situations, followed by centre stage being given to preventing damage to the environment occurring in the first place. These were to become the first two objectives of the threefold goals of environment policy within the framework of the Federal Government’s 1971 environment programme, which were in future to be achieved by effective administrative law in this field. The goal was to safeguard the environment man needs to remain healthy and to live a life in human dignity and to protect the soil, water and air, and flora and fauna, from negative human impacts. The third objective – the removal of damage and detriment caused to the environment by human intervention – came more forcefully to the fore only in the 1980s as a result of specific cases of damage, and became known as the clean-up problem, gaining particular importance in the wake of the reestablishment of German Unity.
The first legislative phase saw the Basic Law (constitution) of the Federal Republic of Germany amended where a number of spheres of “concurring” competence (i.e. between the Federal and Länder governments) were altered in certain environmental areas in favour of the Federation, with the result that environmental legislation has now principally been switched to the Federal Government while the Länder remain fundamentally responsible for enforcement. Moreover, a whole range of new laws were made in individual environmental areas and existing laws were expanded or re-worked and which were almost in their entirety further improved from a legislative point of view in the next legislative phase. Thus was created an admittedly legislatively splintered framework of environment law which to date still has no proper plan of construction under the terms of law.
The strong proliferation of legislative environmental law engenders a need for subjudicial specification: the rough legislative objectives must be implemented in specific administrative goals. In the ongoing administrative phase of environmental law, it is in particular the executive in the Federation and in the Länder who must meet this need by promulgating administrative environmental law in the form of legal ordinances and also in the internal administrative provisions required to enforce laws and ordinances. In addition there is the drawing-up of environmental plans – such as landscape plans, waste management plans or air pollution abatement plans; in addition to this there are also individual case decisions by means of licences or approvals for the establishment and operation of facilities or the bringing onto the market of substances.
Environmental law is a dynamic law. New scientific findings, experience from existing environmental law and provisions under European and international law lead, in the administrative phase, to subsequent legislative improvements. The trend towards compaction and specification shows, together with four other development tendencies, that the second legislative phase of environmental law has begun. This phase is characterised by the trend towards the continued ecological development of environmental law, combined with the trend toward standardising environmental law. Both of these are complemented by the trend towards using “indirect strategies” to exert an indirect influence on conduct which touches on care of the environment. There is also the trend towards promoting or emulating supranational and international developments. These five trends are the moulding factor of the state of environmental law in the Federal Republic of Germany, and are also similar for the development of environmental law in the European Union too.
The trend towards compaction and specification strengthens the legislator’s environmental law and puts it into more specific terms. Environmental law is continually compacted and specified by subjudicial legislation by the government and by the application of law by the administration, with legal pronouncements on decisions affecting individual points of dispute also playing a role. The increased compaction and specification of environmental law at subjudicial level leads to greater security of law. The growing density of provisions, however, can also affect environmental matters, when, for example, the lengthening of licensing provisions may delay the application of environmentally sound provisions. This risk can be countered by the trend towards standardisation and the use of indirect strategies.
In contrast to the first legislative phase, which concentrates primarily on certain environmental sectors, since the 1980s centre stage has increasingly been given to the overall ecological context covering all environmental media and taking account of the various interactions involved – subsumed in the term “ecological nuancing of environmental law” (internal integration of environmental care), and to the environmentally sound structuring of the entire legal order (external integration of environmental care). Considerably more stress is also laid on the principle of prevention which aims at caring, sustainable environmental use and the corresponding emissions approach that must be complemented by the development of environmental quality objectives. Thus ever growing importance is given to measures geared towards preventative, structured and caring planning and measures to manage, allocate or distribute environmental assets as opposed to those which concentrate on the warding-off of risks occurring in individual cases. Environmental measures are also increasingly substance-related. The polluter-pays principle is being strengthened by enhancing the responsibility manufacturers bear for the duration of the entire life cycle of their substances and products as intended by the Closed Substance Cycle and Waste Management Act (Kreislaufwirtschafts- und Abfallgesetz) that entered into force in 1996. The Enquête Commission on the Protection of Man and the Environment set up by the twelfth German Bundestag (parliament) in 1992 has drawn attention to the quantitative handling of substance flows so that these can be dealt with in such a way that damage to the environment is reduced and the strain on resources mitigated.
Of particular importance for the continued ecological development of environmental law is the Chapter VII entitled “Environment” added to the Treaty establishing of the European Communities on the basis of the 1986 Single European Act; this chapter provides the legal foundation for comprehensive, supra-medial environment policy and for its integration into other policy areas – now given special focus in Article 6 of the EC Treaty as the environmental integration clause. Further impetus is given by Article 34 of the 1990 Unification Treaty, which elevates the protection of the natural basis for life to an objective of State of the newly unified Germany. Article 20a of the Basic Law of the Federal Republic of Germany, in force since 15 November 1994, made continued ecological development a constitutionally defined principle: “The state, aware of its responsibility for present and future generations, shall protect the natural sources of life within the framework of the constitutional order through the legislature and, in accordance with the law and the principles of justice, the executive and the judiciary.” This formula proved capable of majority approval, protecting the natural basis for life in a multi-medial approach and also for future generations, not as a subjective basic right but as an objective state goal. In any case, this is a task the state is justified to carry out even without express mention in the Basic Law and to which, to a certain degree, it feels obliged to undertake in order to protect basic protection obligations, to secure the prerequisites for the basic right of the protection of human dignity, life and physical integrity and to secure property.
The trend towards the continued ecological development of environmental law is also found in the Federal Government 1985 soil protection plan and in the 1998 Soil Protection Act, which make the soil an object of legal protection in the same way as water and air and are s also designed to help solve the problem of contaminated sites. The continued economic development of environmental law however is most clearly seen in the 1980 Chemicals Act (Chemikaliengesetz), with its substance-related, multi-medial provisions which facilitate the comprehensive assessment of a substance in respect of its environmental impacts before it is first brought onto the market. This approach can also be seen in the Radiological Protection Act (Strahlenschutzvorsorgegesetz) which picks up on the experiences gained in the nuclear accident at Chernobyl, and in the amended Waste Avoidance and Waste Management Act (Abfallgesetz) of 1986 and especially of 1994 which stresses the concept of closed cycle economy and the responsibility manufacturers bear for their products. One particularly helpful instrument to promote both the continued ecological development and for the standardisation of environmental law is the environmental impact assessment introduced in 1990 for certain public and private projects which allows a multi-medial examination of the effects on the environment of a particular undertaking. The Federal Government is currently preparing legislation in order to transpose the EC Directive on integrated pollution prevention and control (96/61/EC), which aims at achieving an overall high level of environmental protection in the licensing of industrial projects, as well as the IPPC amendment Directive.
Continued ecological development applies not only to administrative environmental law, but also to the accompanying private environmental law and criminal environmental law.
A particularly good example of this is the 1990 Environmental Liability Act (Umwelthaftungsgesetz) which introduced multi-medial risk liability for the party responsible for damage caused by the environmental impacts of certain high-risk installations. Worthy of mention here is also the 1980 Act to Combat Environmental Crime (Gesetz zur Bekämpfung der Umweltkriminalität) as amended in 1994, which removed the main environmental offences from individual pieces of legislation, harmonised them and included them in a new section of the Criminal Code entitled “Offences against the Environment.”
The trend towards continued ecological development in general has brought with it an increased demand for environmental information and environmental data, which in turn requires the development of environmental indicators. This hunger for data is set to intensify the procurement and processing of information, and in particular to strengthen the documentation of environmentally relevant technical procedures and promote continuous, automatic measurements of emissions. Public involvement will continue to be developed along the lines of that common under immission control or atomic energy law where everyone, irrespective of whether he or she has a subjective interest in the matter at hand, can object to a planned project. Access to environmental data will also be made more widespread, subject to the justified concerns of the maintenance of secrecy as is prescribed by the 1994 Environmental Information Act (Umweltinformationsgesetz).
While the trend towards the continued ecological development of environmental law is linked to its material expansion, the trend towards standardisation of environmental law puts this into more formal terms. The aim of this trend is, at all levels – Federation, Länder and European Union -, to combat the fragmentation of environmental law by means of an inner harmonisation of objectives, principles, measures, organisation, procedures and sanctions without losing sight of the intrinsic differences within the three environmental media and the multifarious functions of the environment. Centre stage here is given in particular to aspects aimed at cutting red-tape and standardising and speeding up licensing procedures.
In the longer term, this trend leads to an external harmonisation of the central elements of environmental law by collating around thirty pieces of Federal environmental legislation into an Environmental Code (Umweltgesetzbuch) with an overall Environment Act (Umweltgesetz) which has hitherto been lacking, in the general section and specific sections dealing with various individual issues. Initial scientific preparatory work has been done on the initiative of the Federal Environmental Agency. The Federal Environment Ministry set up an independent committee of experts, which submitted a draft Environmental Code in 1997, and the Federal Government announced the creation of an Environmental Code in 1998. As a Basic Law of environmental care, a Federal Environmental Code would also have a positive effect on the subjudicial setting of norms and on both procedures and organisational arrangements by improving enforcement. The administrative framework of environmental law would be reconstructed on a unitary basis by operation of law and be set out more clearly for those who have to apply it, thus promoting the ecological trend. Of course, a codification of environmental law should not lead to a relaxation of the legislative status already achieved by individual laws, nor should legislative improvements in future codification be excluded.
From the outset, environmental law has been dominated by administrative law. The steering effect is engendered in particular by the application of orders and both repressive and preventative prohibitions; this effect applies directly to the conduct geared towards care of the environment, not least in order to fulfil the constitutional requirements to protect the natural foundations of life and to protect life itself, physical inviolability and property. In future, too, centre stage in environmental law will be in constitutional and administrative law which, geared towards the common good, clearly shows the limits within which the protection profile of the environment moves in relation to the residual risk the individual may be expected to bear. Fundamentally, these principles cannot be left up to criminal law alone; neither, however, can they be left up solely to private law.
The past few years, however, have seen increasing attention being given to environmental measures which use “indirect strategies” via economic self-interest and the market’s innovative strength which complement direct orders and prohibitions with economic or other incentives to achieve an indirect steering effect on people’s behaviour. They also help promote the technical development of care of the environment, specifically help realise the polluter-pays principle in its allocation of costs and balance out weaknesses in enforcement within the administration of direct steering control.
Experience has already been gained in so-called economic instruments such as the environmental charge in the form of the 1976 waste water charge, environmental subsidies to promote state-of-the-art development and environment-related tax relief to promote low-consumption and low-emission motor vehicles; these are deserving of further development within the framework of the projected ecological finance reform. The 1999 Electricity Tax Act intends to make environmental consumption more expensive and relieve employment costs as an entry into the ecological tax reform. Worthy of note are also options whereby emissions can be set off against the clean-up of contaminated sites, voluntary limits entered into by trade and industry to reduce activities detrimental to the environment, the granting of user-benefits for environmentally sound products and public education and advice on environmental issues.
Other “indirect strategies” can, moreover, also reduce state participation in monitoring environmentally-damaging activities by strengthening self-monitoring within companies, for example by providing internal environment officers who do not and indeed should not have any powers under public law. Mention should also be made of the efforts at organising self-monitoring by several firms. Companies’ adherence to environmental provisions is also being improved by the voluntary participation in the pan-European environmental audit and management system provided for under the terms of the Eco-Audit Directive. Instruments of indirect strategies also include sanctions under private and criminal law with liability for damage caused by environmental impacts and the possibility of punishment if obligations under environmental law are violated.
The administrative framework of environmental law is not only moulded by the legal and administrative provisions of the Federal Government and the Länder. The transboundary structure of most environmental problems and the increasing globalisation of economic activities mean that even greater importance will be attached in future to solutions found regionally within the European Union and at global level.
The firm attachment of Germany to the environment policy of the European Union has opened up a new European dimension to domestic environmental law which is reflected in increased European legislation in the field of environmental care and which, since 1986, has been embodied on a fundamental primary basis within the Treaty establishing the European Communities. The environmental law of the European Community has developed, forcing domestic environmental law to harmonise or ousting it altogether. Legal harmonisation in the completion of the European Single Market at the end of 1992 in particular accelerated the harmonisation of environmental law. The danger here is that if legal pronouncements are transferred to European level, standards of environmental care will be reduced to the lowest common denominator. Contractual law, however, makes provision for a high level of environmental protection. Moreover, the principle of subsidiarity also applies, whereby the European Union can only become active in the field of the environment where environmental objectives would better be reached at Community level than at the level of the individual Member States. The obligation incumbent on the Member States to notify planned environmental provisions makes it possible to exert an influence on pan-European provisions.
The development of more far-reaching regional and global international law in the field of the environment also should be promoted, not least to reduce distortions in competition as a result of harmonised environmental norms and to reinforce the integration of environmental concerns into the international economic order. This, however, requires an openness to adopt legal solutions to problems within German environmental law. The United Nations environmental law programme, formulated in Montevideo in 1981 and planned to continue into the 1990s, set out areas in which national, regional and global environmental law are to be developed. The Montevideo environmental law programme has also brought to light a worldwide consensus on the core areas of environmental law and facilitated its recognition as a legal area throughout the world. The primary topics mentioned include land-based marine pollution, the protection of the stratospheric ozone layer and the transport, treatment and disposal of toxic and hazardous waste; secondary topics include international cooperation in the case of environmental emergencies, the management of coastal zones, soil protection, transboundary air pollution, international trade in potentially hazardous chemicals, the protection against pollution of rivers and other water bodies, the prevention and restoration of environmental damage and the overall development of environmental law. Almost all of these fields are now the subject of either international conventions on the one hand or directives on conduct on the other, developed along the lines of “soft law.” The Federal Republic of Germany has been involved in the formation of these provisions. Mention should also be made of the environmental law of outer space which makes provision for the protection of the terrestrial and extraterrestrial environment against detrimental human impacts both into and out of outer space. Further issues are those of protecting the earth’s atmosphere, in particular the stemming of climate change, safeguarding species diversity (biodiversity) and conserving forests. The continued development of national environmental law is made necessary by the United Nations Conference on Environment and Development, held in Rio de Janeiro in 1992 under the motto of sustainable development, which drew attention to the importance of globally effective international environmental law.
Having looked briefly at international law, which generally must be translated into national environmental law before it can take effect, let us now return to the individual areas regulated by environmental law which have emerged in Germany along with supranational and international developments and in line with the trends described above. Until an Environmental Code is promulgated, the areas regulated by environmental law can only be determined on the basis of individual laws. If we recognise the history of the development of individual legislation in environmental law and if we consider the normative works with ecological nuances, which form the backbone of environmental law, as guideline legislation, the relevant legal norms can be divided under the heading General Environmental Care on the one hand and Particular Environmental Care on the other, with provisions geared towards particular installations, particular substances and particular sites.
In contrast to the area of particular environmental care, the lack of a general Environmental Code means that no guideline legislation is available for general environmental care. A central aspect of this field is the Act on the Assessment of Environmental Impacts of 12 February 1990 (Gesetz über die Umweltverträglichkeitsprüfung, UVPG, Federal Law Gazette I, BGBl. I, page 205). The environment impact assessment (EIA) is an instrument of preventative environmental care and is, with the promulgation of the above-mentioned Act, now legally binding in law. It has also been introduced in existing public procedures for the licensing of or considerable amendment to certain projects of relevance to the environment. These include large-scale projects subject to initial planning approval, such as the expansion of waterways, highways and airports and to certain installations which require licensing under the Federal Immission Control Act (Bundes-Immissionsschutzgesetz) such as rolling mills, chemical facilities or large-scale livestock farming. The EIA is based on cooperation between the environment authorities and the parties intending to carry out the project. Since the latter must first submit the data required to determine the possible environmental impacts of their project, these parties are in a position to speed up the procedural process. By means of the systematic and formalised determination, description and evaluation of the environmental impacts of the planned project, by the participation required of authorities and the public and the consideration given to the EIA in the decision on whether to approve the project or not, environmental concerns have greater weight in their relation to other interests.
General environmental care is also covered by the environmental provisions of the Regional Planning Act (Raumordnungsgesetz, ROG, Federal Law Gazette, BGBl I, page 2081) of 18 August 1997 and other specific and planning law designed to ensure environmental soundness.
The Environmental Information Act (Umweltinformationsgesetz, UIG, Federal Law Gazette, BGBl. I, page 1490) of 8 July 1994 expands everyone’s access to official environmental information. In a similar vein, the Environmental Statistics Act (Umweltstatistikgesetz, UStatG, Federal Law Gazette BGBl. I, page 2530) of 21 September 1994 provides the data needed on the environment. Recent legislative activity at European level has also made an important contribution to expanding general environmental care; this includes, for example, the Directives on the EIA, on integrated project approval and on access to information and also the Regulation concerning the “eco-audit” and the Environmental Audit Act (Umweltauditgestz – UAG, Federal Law Gazette, BGBl I, page 1591) promulgated on 7 December 1995, which promote internal company environmental management.
General environmental care is also covered by the Environmental Liability Act (Umwelthaftungsgesetz, UmweltHG, Federal Law Gazette, BGBl. I, page 2634) of 10 December 1990 which provides for liability in the case of environmental risks. Where human life or health is disturbed and where emissions have entered the soil, water and the air, the owner of a facility is liable even if he or she is not at fault and irrespective of whether the damage was caused as a result of a hazardous incident or during normal operations. Damage resulting from force majeure is, however, excluded from liability. More flexibility in the taking of evidence and rights to receive information from the party allegedly causing the damage make it easier for the damaged party to gain access from the party responsible for the damage. The right to the restoration of the previous state also extends to nature and the landscape. Installations which pose a particular risk to the environment must have provisions for sufficient cover, an obligation which may be met by arranging liability insurance. As a last resort, this area also includes environmental criminal law. The Acts to Combat Environmental Crime (Gesetz zur Bekämpfung der Umweltkriminalität UKG) of 28 March 1980 (Federal Law Gazette, BGBl I, page 373) and 27 June 1994 (Federal Law Gazette, BGBl. I, page 1994), which supplement and amend the Criminal Code, make provision for the punishment of water, soil and air pollution, noise-making, environmentally damaging waste disposal, the unlicensed operation of installations and the unlicensed handling of hazardous substances and goods, as well as particularly serious environmental offences.
Centre stage in installation-related provisions is given to immission control, radiological protection, nuclear safety and energy-saving.
The guideline legislation to protect man and the environment from dangerous environmental impacts – in particular air pollution and noise pollution – is the Federal Immission Control Act (Bundes-Immissionsschutzgesetz, BlmSchG, Federal Law Gazette, BGBl. I, page 880) in the amended version of 14 May 1990. This Act, with its 28 ordinances and numerous administrative provisions – in particular the Technical Instructions on Air Pollution Control (TA Luft) and the Technical Instructions on Noise Protection (TA Lärm) – is the central piece of legislation for technical environmental protection and the technical safety of installations. It provides for licensing for installations which are particularly susceptible to causing harmful environmental impacts, such as power stations, rolling mills, mineral oil refineries or large-scale livestock farming. Where the prerequisites are given, there is a legal obligation to grant the licence. The Federal Immission Control Act is complemented in particular by the Act on Lead Levels in Petrol (Benzinbleigesetz, BzBlG. Federal Law Gazette, BGBl. I, page 1234) of 5 August 1971, which reduces the lead content of petrol fuel, and by the Act on Aircraft Noise (Gesetz zum Schutz gegen Fluglärm, Federal Law Gazette, BGBl. I, page 282) of 30 March 1971. Further immission control provisions are contained in regulations governing road and rail transport, shipping and air traffic.
Given the particularly high level of potential risk, radiological protection and nuclear safety form a separate regulatory area outside immission control law. Protection is provided against the risks of nuclear energy and the harmful effects of ionising rays by the Atomic Energy Act (Atomgesetz, Federal Law Gazette, BGBl. I, page 1565), as amended in the version of 15 July 1985 supplemented by the Radiological Protection Act (Strahlenschutzvorsorgegesetz, StrVG, Federal Law Gazette, BGBl. I, page 2610) of 19 December 1986.
The guideline legislation for the area of energy-saving is the Energy Saving Act (Energieeinsparungsgesetz, EnEG, Federal Law Gazette, BGBl. I, page 1873) of 22 July 1976 which sets standards for heating, insulation, heating and air conditioning facilities and for industrial water in buildings. This Act is supplemented by the Renewable Energies Act (Erneuerbare-Energien-Gesetz – EEG, Federal Law Gazette, BGBl I, page 305) of 29 March 2000 that aims at increasing the proportion of renewable energies in energy consumption and that supplements the Electricity Tax Act (Stromsteuergesetz – StromStG, Federal Law Gazette, BGBl I, page 378) of 24 March 1999, which is designed to provide incentives for a reduction of electricity consumption as the core of an ecological tax reform. In the interests of energy-saving and climate protection, the Heat and Power Co-Generation Act (Kraft-Wärme-Kopplungsgesetz. Federal law Gazette I, p. 703) of 12 May 2000 provides temporary promotion (initially until 2004) in the form of acceptance and remuneration obligations for the generation of electricity from installations that simultaneously convert input energy into mechanical and electrical energy and into effective heat. The Energy Consumption Labelling Act (Energieverbrauchskennzeichnungsgesetz – EnVKG, Federal Law Gazette, BGBl I, page 1632) of 1 July 1997 allows consumers to buy energy-saving appliances thanks to appropriate information.
Substance-related care of the environment includes protection against hazardous substances and the avoidance, recovery and disposal of waste.
The protection of man and the environment against the harmful effects of hazardous substances and preparations is provided for along the lines of environmental conservation, health care and safety-at-work provisions in the Chemicals Act (Chemikaliengesetz, ChemG, Federal Law Gazette, BGBl. I, page 1703) in its amended form of 25 July 1994 and in particular the related Ordinances on the Prohibition of Certain Chemicals (Chemikalien-Verbotsverordnung, ChemVerbotsV, Federal Law Gazette, BGBl. I, page 1151) in the version of 19 July 1996 and the Hazardous Incidents Ordinance (Gefahrstoffverordnung, GefStoffV, Federal Law Gazette, BGBl. I, page 2233) in the version of 15 November 1999. New substances are subject, as laid down in European law, to a registration and notification obligation before they can be brought onto the market. Old substances – that is substances on the market before 1981 – are assessed on the basis of a relevant European regulation. Hazardous substances and preparations must be classified, labelled and packed in line with their hazardous properties; their manufacture, bringing onto the market and use may be prohibited or limited. The Chemicals Act is complemented by the Plant Protection Act (Pflanzenschutzgesetz -PflSchG, Federal Law Gazette, BGBl. I, page 971, 1527, 3512) in the version of 14 May 1998 and the Fertilisers Act (Düngemittelgesetz, Federal Law Gazette, BGBl. I, page 2134) of 15 November 1977, as well as by legislation on animal feedstuffs and human foodstuffs and by substance-related provisions in other areas of care of the environment. This also includes the legal provisions concerning the environmental impacts of genetic technology under the terms of the Genetic Technology Act (Gentechnikgesetz, GenTG, Federal Law Gazette, BGBl. I, page 2066) in the amended version of 16 December 1993.
Avoidance, recovery and disposal of waste is regulated by the Closed Substance Cycle and Waste Management Act (Kreislaufwirtschafts- und Abfallgesetz, KrW-/AbfG, Federal Law Gazette, BGBl. I, page 2705) which, on 27 September 1994. The aim of the Act is to promote an economy based on closed-substance cycles, thus conserving resources, and to guarantee the environmentally sound disposal of waste. Wherever waste cannot be avoided, recovered or used to produce energy, it must be removed from the cycle and, as a matter of principle, be disposed of within Germany in such a way that there is no detriment to the common good. Under law, waste is defined as a tangible item which falls under one of the legally determined categories of waste and which the owner is getting rid of, desires to get rid of or must get rid of. The Act includes provisions for product stewardship throughout a product’s entire life cycle, for the structure and planning of waste disposal, for the licensing of waste disposal facilities, for licensing obligations for the collection and transportation of waste and for waste monitoring. It is complemented by the Waste Transportation Act (Abfallverbringungsgesetz, AbfVerbrG, Federal Law Gazette, BGBl. I, page 2771) of 30 September 1994 which implements the 1989 Basle Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal and regulates the transport of waste into, out of or through the area of application of the Act and creates the basis for the establishment of a solidarity fund to finance the return of waste exported illegally. Waste legislation adopted by the Länder complement Federal provisions. Regulations governing waste disposal are also found in other legislation such as the Act on the Disposal of Animal Carcasses (Tierkörperbeseitigungsgesetz) or the Atomic Energy Act.
Prominence in site-related care of the environment is given to water protection and nature conservation.
The guideline legislation in the field of water protection is the Federal Water Act (Wasserhaushaltsgesetz, WHG, Federal Law Gazette, BGBl. I, page 1695) as amended on 12 November 1996. In order to regulate water quality and water levels, water bodies are considered an integral part of the water balance and should be managed in such a way that they serve both the common good and, in harmony with this, the use to which individuals put them and that no avoidable damage to its ecological functions takes place. Everyone is obliged, taking account of particular circumstances, to exercise adequate care when carrying out measures which may have an impact on a water body so that water pollution or any other negative effect on the water is prevented; moreover, everyone is obliged to use water sparingly in line with the needs of the water household as a whole. Surface waters and groundwater are, as public utilities, subject to an extraordinary public management and utilisation code which leaves the allocation of users’ rights at official discretion. The Water Management Act is complemented by the Waste Water Charges Act (Abwasserabgabengesetz, AbwAG, Federal Law Gazette, BGBl. I, page 3370) as amended in the version of 3 November 1994. An annually rising waste water charge linked to the toxicity of the input waste water is an effective financial incentive to dispose of waste water properly. In addition, there is the Water Boards Act (Wasserverbandsgesetz, WVG, Federal Law Gazette, BGBl. I, page 405) of 12 February 1991 which regulated water and soil boards which, as public corporations, implement measures designed to improve water and soil quality. Water legislation promulgated by the Länder goes beyond merely the enforcement of the framework of Federal Law to determine administrative procedures and regulate issues of private water law. In order to protect the marine environment, the High Seas Dumping Act (Hohe-See-Einbringungsgesetz, Federal Law Gazette, BGBl I, page 2455) of 25 August 1998 prohibits the incineration of wastes and other substances on the high seas and their being dumped in the sea. Water quality is also affected by the Washing and Cleansing Agents Act (Wasch- und Reinigungsmittelgesetz, WRMG, Federal Law Gazette, BGBl. I, page 875) as amended in the version of 5 March 1987. Under the terms of this Act, washing and cleansing agents may only be brought onto the market if, in use, no avoidable negative effect on water quality can occur. Water protection is also served directly or indirectly by substance-related provisions in other areas. These include the Chemicals Act, the Fertilisers Act and the Waste Avoidance and Waste Management Act. They also comprise provisions whereby water is indirectly protected via the soil and the air. Indirect water protection is also afforded by the Drinking Water Ordinance (Trinkwasserverordnung) based on the Foodstuffs and Commodities Act (Lebensmittel- und Bedarfsgegenständegesetz).
Of particular importance for site-related care of the environment is the framework legislation promulgated at federal level in the form of the Federal Nature Conservation Act (Bundesnaturschutzgesetz, BNatSchG, Federal Law Gazette, BGBl. I, page 2994) in the version as amended on 21 September 1998. The objective of this Act is to protect, care for and develop the natural environment and the landscape in built-up and non-built-up areas in such a way that the efficiency of the natural household, the usefulness of natural assets, the world of flora and fauna and the diversity, uniqueness and beauty of the natural environment and the landscape are sustainably preserved as man’s natural foundation of existence and as a prerequisite for human recreation. The Act thus contains provisions on landscape planning protection, care and development measures in general and for certain categories requiring particular protection, species conservation, recreation in the natural environment and landscape and the involvement of citizens’ action groups. The framework Act requires expansion by Länder nature conservation legislation. The Federal Nature Conservation Act is complemented by the Federal Forestry Act (Bundeswaldgesetz, Federal Law Gazette, BGBl. I, page 1037) of 2 May 1975 which also contains environmental law provisions as they relate to forests.
The protection and care of soil as an environmental medium and part of the natural household is also promoted – either directly or indirectly – by a whole range of other environmental provisions based on the Federal Government’s 1985 soil protection programme which have now been developed further in this direction and culminated in the Federal Soil Protection Act (Bundesbodenschutzgesetz – BBodSchG, Federal Law Gazette, BGBl I, page 502) of 17 March 1998. Soil protection measures – either preventative or remedial – are aimed at avoiding or reducing substance inputs into the soil or removing already existing soil damage, and at combatting the extensive land consumption caused by soil sealing.
In its widest sense, the Animal Protection Act (Tierschutzgesetz, Federal Law Gazette, BGBl. I, page 1105, 1818) in its amended version of 25 May 1998 also belongs here since it puts animals, as living creatures alongside man, under man’s particular responsibility. The Civil Code no longer therefore considers animals as inanimate objects, but determines that the law pertaining to inanimate objects should apply mutatis mutandis to animals if no other provision is made.
With its provisions for general and particular care of the environment, environmental law will continue to stress the absolute need for a regulatory framework within which its existential, social and aesthetic functions can be fulfilled. The five development trends of environmental law that have been identified since the 1980s are now grouped together in three focuses of development:
- Integrated environmental strategies for the internal and external integration of environmental care by means of the further ecological development and harmonisation of environmental law,
- Indirect environmental strategies for the indirect guidance of environmental care conduct by means of corresponding economic and other incentives and instruments and
- International environmental strategies to link national, supranational and international environmental law by means of the promotion or adoption of supranational and international developments.
In order to be able to master these development focuses appropriately, environmental law needs a fundamental reform that builds upon the solid basis of the intervening measures of direct conduct guidance and the planning measures that have been somewhat underestimated in recent decades. At a national level the Environmental Code offers an appropriate legislative type of action for this reform of environmental reform and, at the same time, forms the constitution of environmental order. This environmental order is designed not only to realise the State’s constitutional objective of care of the environment. Linked to an economic order which guarantees the autonomy of the individual and competition, and a strongly structured social order, an environment order also helps the social market economy to gear itself to the needs of the environment in such a way that it can do ecological, economic and social justice to the model of sustainable development.
Wangen im Allgäu, July 2000
The above article was first published by Inter Nationes as part of: Environmental Laws, ed. by Sigrid Born and produced by Ilona Orthen. Reproduced with kind permission. © 2001 Inter Nationes. This HTML edition by Lawrence Schäfer and © 2001 Gerhard Dannemann. The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.