Successful public participation can result in better solutions – especially as concerns environmental protection. It can counteract shortcomings in the enforcement of administrative decisions. Participation can involve both individuals and associations. A broad level of public participation makes it easier to understand decisions and thus helps in finding acceptable solutions. Another plus of participation is that it can shorten the time needed for public planning or authorisation and implementation of projects.
The general procedural law in the Administrative Procedure Act (VwVfG) contains requirements concerning the involvement of third parties and the public in administrative decisions (e.g. Section 28 VwVfG concerning administrative procedure and Section 73 VwVfG for planning approval). Since 2013 Section 25 Para 3 of VwVfG has contained a regulation on the early involvement of the public by the authorities who are seeking authorisation of a project. The aim is to initiate public participation even before the authority proposes a project and to publicize the results of the procedure.
The requirements of public participation have been greatly expanded in the area of environment. Several international agreements and European directives have provided the impetus for this development. Specifically, these include the Århus and Espoo Conventions, European law anchored in the Directive on public access to environmental information (2003/4/EC), the Directive providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment (2003/35/EC), directives on environmental assessment of projects and certain plans and programmes on the environment (Environmental Impact Assessment (EIA) Directive 2011/92/EU, SEA Directive 2001/42/EC) and the Integrated Pollution Prevention and Control Directive (IPPC Directive 2008/1/EC, now: Directive on Industrial Emissions 2010/75/EU).
As a rule, the relevant specific legislation prescribes which role the public plays in the procedure. According to the Federal Immission Control Act (BImSchG) for example, the competent authority must make a public announcement of projects with relevance to the environment during the authorisation procedure and grant access to the pertinent documentation. Furthermore, the right to public participation is in effect in this case, which means that not only does everyone have a right to information about the project, they may also raise objections and possibly be invited to a hearing. In contrast, the simplified authorisation procedure which immissions legislation prescribes for projects of less environmental relevance does not require any specific form of public participation.
General environmental legislation may contain applicable provisions where the specialist legislation has no regulations governing public participation. This means that the environmental information requirements grant anyone the right to freely access information about projects of environmental relevance (Section 3 Environmental Information Act - UIG). If an environmental impact assessment is necessary or projects and programmes otherwise require a strategic environmental assessment, public participation is imperative and persons impacted by a project must be granted the right to present their views. In the absence of specific regulations, these are derived from the Act on the Assessment of Environmental Impacts (UVPG, Article 9) and must be complied with in the subsequent procedure.
Environmental and nature conservation associations may participate in many environmental administrative procedures as members of the public. If everyone can participate, the rights of public participation do not require the fulfilment of any special preconditions for associations. Furthermore, an environmental or nature conservation association may also exercise its right to participation when a project affects the areas of responsibility governed in its statutes. Environmental and nature conservation associations which are recognised pursuant to the Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz) are also entitled to special rights of participation, in particular pursuant to the Federal Nature Conservation Act (Section 63 BNatSchG).
The legislative procedure does not regulate the right of public participation formally. However, the responsible ministries often involve the public in the drafting of legislation, for example in consultations with associations which represent certain interests. In secondary legislation, ordinances are often enacted after hearings with stakeholders. These parties may be representatives of environmental and consumer protection organisations (for example with the fleshing out of immissions law requirements in ordinances pursuant to Article 51 Federal Immission Control Act - BImSchG).
One reflection of the greater acknowledgement of the role of public participation rights are the revisions in the Energiewende concerning the procedure for the accelerated expansion of the power grid, which is regulated by the Energy Industry Act (EnWG) and the Grid Expansion Acceleration Act (NABEG). The public has the right of participation in planning and authorisation decisions concerning transmission systems and the public must also be involved early on and during all stages of the procedure. This is to ensure that all environmental concerns are recognised and taken into full account in the procedure. The public is given the possibility of exerting influence on the decision precisely because of its early-stage participation, which ultimately makes the outcome of the grid expansion planning more understandable. A transparent and participative planning and authorisation procedure can raise acceptance of the grid expansion and thereby promote the development of renewable energy and achievement of climate protection goals.
Position paper by former UBA President Jochen Flasbarth, co-authored by Prof. Johann-Dietrich Wörner (DLR) and Michael Sailer (Öko-Institut): Öffentlichkeitsbeteiligung in Planungs- und Genehmigungsverfahren neu denken
The acceptance of state projects depends on how soon the public is involved in the discussions concerning planning and authorisation procedures. A project meets with less scepticism when participation is community-based, objective, broadly understood, transparent and not driven by special interests. Strict standards of environmental and health protection as well as appropriate compensation in unavoidable cases are the prerequisites for fast and better results, says Mr Jochen Flasbarth.
Workshop on "environmental protection in sectoral and physical planning"
The Institute for Climate Protection, Energy and Mobility (IKEM) organised a workshop on behalf of UBA on environmental protection in sectoral and spatial planning (Anspruchsvoller Umweltschutz in der Fach- und Raumplanung – Planungskaskaden bei Großvorhaben), which was held on 4 November 2012 in Berlin. The way the planning and authorisation procedure is designed, including environmental impact assessment and public participation rights and the right to legal redress for individuals and associations can be key factors in integrating conservation issues into the planning stage of projects, implementation of environmental law, and in promoting acceptance. The workshop examined the pros and cons of regulations governing the planning and authorisation procedure for environmental projects and developed recommendations for the further development of planning law in the interests of environmental protection. The workshop results have been published in a conference report (in German).