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Last changed: 08/10/2010
An Environmental Code should summarise, harmonise, simplify and modernise environmental law. The German Federal Environment Agency (Umweltbundesamt, UBA) advocates an ambitious Environmental Code (Umweltgesetzbuch, UGB) that will yield added value for environmental protection.
German environmental law has developed over many years and due to pressure exerted by various environmental problems. As a result, there are environmental laws governing different sectors and focusing on certain specific environmental issues such as air quality control, noise protection, waste management or soil protection. These laws sometimes use different definitions of terms and regulatory approaches, or they attach different weights to the various issues although there is not always good reason to do so. Moreover, it makes the application of the law more difficult if the provisions are scattered across many different individual laws. A comprehensive Environmental Code that seeks to unify as many provisions as possible can change this, thereby playing a key role in cutting red tape and promoting investment. An Environmental Code may also bring about harmonisation and further development of legal, economic and other indirect steering instruments, which currently operate in parallel in a very disjointed manner.
Furthermore, UGB could promote implementation and integration of European law since many of the EU environmental directives already differ in their approach from German law, a situation which had caused many implementation problems in the past.
One of the centrepieces of an Environmental Code should be the integrated project authorisation model (integrierte Vorhabengenehmigung, iVG) whose objective is to introduce nationwide uniform procedural rules for industrial facilities and other large-scale environmentally relevant projects such as landfills. The further development of what is known as integrated environmental protection is especially significant in this regard. Instead of protecting environmental media separately the legislator ensures their concurrent protection while taking into account their interplay. In addition the integrated project authorisation model bundles concurrent licensing procedures, puts in one hand the responsibility of decision making and gives citizens and businesses one contact partner to whom all enquiries are to be addressed. In this way environmental law, as it relates to the approval of large-scale environmentally relevant projects, is more efficiently and effectively enforceable.
The concept for an Environmental Code should be flexible and open in order to enable new developments to be taken into consideration.
Preliminary work on an Environmental Code was already done in the 1970s. In the Environmental Report of 1976, the Federal Government expressed its intention to assess whether and how environmental law could be simplified and made more uniform. UBA thereupon commissioned a research project on systemising environmental law (UBA BERICHTE (Reports) 8/78) and on the domestic harmonisation of environmental law (UBA BERICHTE 6/86).
As a result of another research project commissioned by the UBA, in 1990, Professors Michael Kloepfer, Eckard Rehbinder, Eberhard Schmidt-Aßmann and Philip Kunig submitted their proposal for an UGB (see UBA BERICHTE 7/90). The draft laid down general principles, rules and procedures applicable to the various areas affected by environmental law. This included issues of industrial plant licensing, environmental information, environmental liability, public participation and standardisation. In 1994, there was a follow-up proposal pertaining to the ”special part” of the UGB, containing chapters on nature conservation and landscape preservation, water protection and management, soil protection, immission protection, nuclear energy and radiation protection, hazardous substances as well as waste management and disposal (see UBA BERICHTE 4/94). In addition to the authors of the general part, Professors Hans D. Jarass, Hans-Jürgen Papier, Franz-Joseph Peine and Jürgen Salzwedel were also involved.
On 9 September 1997, after five years’ work, the Independent Expert Commission on the Environmental Code, set up by the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety (SK-UGB), submitted their draft UGB as a follow-up to the professors’ draft. It is known as the Commission draft UGB (UGB-KomE). The Commission was chaired by Prof. Dr. Horst Sendler (President of the Federal Administrative Court of Germany), and deputy chair was Prof. Dr. Michael Kloepfer. Commission members were lawyer Dr. Manfred Bulling (retired district president), chief justice at the Federal Administrative Court of Germany Dr. Günther Gaentzsch, Professor Hubert Peter Johann (Mannesmann AG.), lawyer Dr. Rüdiger Schweikl (retired environmental advisor to the city of Munich), lawyer Dr. Dieter Sellner and Professor Gerd Winter.
The commission’s draft document contains a General Part in eight chapters. It consists of general provisions applicable to all environmental protection issues: definitions of terms, fundamental principles of environmental protection, environmental protection instruments, and procedures, provisions on legal protection in environmental law, as well as transboundary environmental protection. A Special Section in nine chapters contains provisions for various fields of environmental protection as well as particular sources of danger. The Commission submitted a total of 775 provisions with detailed grounds.
Using the Commission’s draft as a basis, the German Federal Environment Ministry (Bundesumweltministerium, BMU) presented a draft for Part I of an Environmental Code (UGB I) in early 1999, which was intended to regulate the approval and monitoring law for industrial plants. The draft legislation could not be carried through owing to a lack of constitutional power of the Bund to enact laws for the management of water resources, nature and landscape.
Federal Reform has redefined the spheres of legislative power of the Federal government and the Laender: After long negotiations the German Bundestag resolved to change the Constitution of the Federal Republic of Germany, the Grundgesetz, on 30 June 2006. The Bundesrat (Federal Council) passed the law on 7 July 2006, enabling changes to enter into force on 1 September 2006.
This reform of the Constitution has brought about changes in environmental protection as compared to the previous division of competences. Water resources, nature and landscape are now in the realm of Federal legislation and the Federal legislator may regulate these areas even without justifying the need for regulation at Federal level. Furthermore, it gave the Federation its own spheres of competence for waste management, air quality control and noise abatement, putting it in a position to create an Environmental Code.
However, the Laender may draw up divergent legislation in the areas of nature conservation, landscape management, water management and procedure; this will apply to procedural law from 2009 and to the other areas from 2010.
The CDU/CSU/SPD coalition contract of November 11th 2005 describes the "reorganisation of environmental law" as a task for the 16th legislative period as follows:
”Our current environmental law has developed over time and is highly fragmented both with regard to subject matter and between the Federal Government and the Laender. This does not meet the requirements of an integrated environmental policy: we want to simplify German environmental legislation and compile it in an Environmental Code. We want to replace the different licensing procedures with an integrated project authorisation in the context of an Environmental Code.”
At the beginning of 2006 a project group from the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety (BMU) took on the job of fulfilling this task, thereby bringing in representatives of all affected groups. In November 2007 the BMU presented its draft for an Environmental Code and discussed it with the other federal ministries. In May 2008 the BMU presented a revised version of its draft for discussion with the Laender and other interested parties, such as industrial and environmental associations. The five presented books of the Environmental Code were intended to regulate at first the high-priority key areas of environmental law, because it would not be possible to create a comprehensive Environmental Code in the 16th legislative period.
UGB I contains the overall objectives and principles of environmental law, other interdisciplinary environmental issues like strategic environmental impact assessment, environmental liability in public law, access to justice in environmental matters and project-related environmental law. UGB I introduces integrated project authorisation into this law governing projects which affect the environment.
UGB II (Water Management) and UGB III (Nature Conservation) were intended firstly to concretise the UGB I. Secondly, the legislator would by this means have fulfilled the obligation derived from the constitutional reform to enact a law in these areas which is binding for the whole Federal Republic.
The idea behind UGB IV (Radiation Protection/Non-ionising Radiation) was to create the general legal framework which has hitherto been missing for the protection of the population from non-ionising radiation. The UGB IV (Emissions Trading) should have transferred parts of pre-existing energy law into the UGB without any notable alterations to the content; the only changes made were those necessary to adapt the wording to the terminology used in the first book of the UGB.
An Introductory Act to the UGB would have adapted all other affected legal regulations to the future UGB.
In spite of intensive attempts to find consensus with all important stakeholders, the Federal Government was ultimately unable to agree on a common draft. The 16th legislative period did not after all see the introduction of an UGB into the legislative process.
In place of one Environmental Code, in the 16th legislative period four so-called follow-up laws (in German) to the UGB were introduced into the parliamentary legislative process. These were the act on removal of obsolete sections in environmental law, the act on the reform of water law, the act on the replacement of the Federal Nature Conservation Act and the act on the regulation of protection from non-ionising radiation. Further information on these drafts can be found on the homepage of the BMU in German.
The UBA has been advocating an Environmental Code since the end of the 1970s. We contributed intensively to the creation of the BMU draft Environmental Code in the 16th legislative period.
With a series of publications entitled "Forum Umweltgesetzbuch” (Environmental Code Forum) the BMU and the UBA accompanied the development of the 2008 ministerial draft. The following titles are published: