The German Environmental constitutional law

The Basic Law bookClick to enlarge
The Basic Law book
Source: Silke Seider / Umweltbundesamt

Since 15 November 1994, environmental protection has been enshrined as an objective of the state in Article 20a of the German Basic Law. Constitutional status has thus been afforded to environmental protection and its objectives. All state bodies - in particular the legislature - are required to be “mindful also of [their] responsibility toward future generations” and to protect the environment.

Environmental protection as an objective of the state

This law is legally binding but not enforceable for the individual. Because of its constitutional status, closer attention must be paid to environmental protection when weighing it up against other societal interests.

The division of constitutional legislative powers between the Federal and State Governments in accordance with the first stage of reform of the federal system.

On 1 September 2006, the results of the first stage of reform of the federal system entered into force in the form of the “Act for the Amendment of the Basic Law” (Federal Law Gazette I 41 p. 2034). With this comprehensive amendment of the Basic Law, the German constitutional legislature redefined the powers of the Federal Government and the Länder in Germany, especially in the area of legislation.

Of particular interest for environmental law was the redistribution of legislative powers for the protection of the environment. Prior to the reform, the Basic Law shared the legislative powers of the Federal Government in respect of environmental protection across various, mostly non-environment-specific jurisdictions. They came under either the concurrent or the framework legislative competence of the Federal Government. The Federal Government was therefore often not able to enact comprehensive and uniform regulations. In the context of concurrent legislative competences (for example, waste management), it was able to enact regulations only if it could prove, in accordance with what was known as the “necessity clause”, that a regulation at Federal level was necessary. Its framework legislative competence (for example for water resources) limited it to the enactment of frameworks regulations, leaving the detail up to the Länder.

The first stage of reform of the federal system improved the position of the Federal Government in the exercise of powers in the field of environmental policy:

  • The transfer of some environmental law matters from the now abolished framework legislative competence to concurrent legislative competence has enabled the Federal Government to enact complete legislation in these areas.
  • For certain matters of concurrent legislation, the reformers of the constitution abolished the necessity criterion in Article 72 (2) of the Basic Law. This necessity clause had in the past made it more difficult for the Federal Government to enact uniform regulations. This mandatory justification requirement has now been dropped for important environmental areas (air pollution, combating noise, waste management, matters from the former framework legislation).
  • It is the case that some of the environmental law matters which may be regulated by the Federal Government come within the scope of the “alternative legislative powers” of the Länder (Article 72 (3) of the Basic Law, for example water management, nature conservation and landscape management, and spatial planning). Important areas are however not included (for example specific substance- or plant-related regulations in the water regime).
  • The central environmental areas of waste and air pollution control are subject to neither alternative legislative powers nor the necessity clause, meaning that the Federal Government may regulate freely in this area.

The legislator has not added “environment” as a specific power to the Basic Law. For many environmental and energy issues (for example climate protection, soil protection, chemical safety, renewable energy) there are as before no special powers, meaning that the Federal lawmakers will in future have to continue to rely for large swathes of environmental protection legislation on a combination of various powers or on other powers (for example, business law).

The first stage of reform of the federal system made it possible for the Federal Government to create an environmental code. The federal legislature can legislate fully in all matters environmental law, although the Länder can retrospectively choose to deviate from the legislation in particular areas.

The draft environmental code worked out in the 16th legislative period was not however introduced into the legislative process. Despite intensive consultation on the drafts with all the relevant actors, the Federal Government was unable to agree on a joint text.
Instead, the Bundestag and Bundesrat (lower and upper houses of the German parliament) adopted parts of the legislation originally provided for in the environmental code as individual laws. In this way, the legal requirements in the area of water and nature conservation law have been harmonised nationwide. A law for protection from non-ionising radiation (NiSG) and a Consolidation of Laws Act (Rechtsbereinigungsgesetz Umwelt- RGU) were also created.