Immission control law
The authorisation procedure for industrial plants under the terms of immission control law is the historical starting point for individual-case-related, environmental-media-specific environmental protection. It is no coincidence that the Federal Immission Control Act (BImSchG) is a key environmental law that has been at the very heart of the draft proposals for an environmental code.
As long ago as the 19th century, industrialisation resulted in a drastic increase in pollution by hazardous substances and noise. This is why a law to control immissions of hazardous substances and noise – at that time still based on general police and public order laws – came into being at an early stage. The aim of present-day immission control is to reduce potentially harmful impacts on human beings and their environment (immissions) by means of risk prevention and precautionary measures. The precautionary measures addresses the industrial activities themselves and the emissions to which they give rise to prevent the input of pollutants into environmental media right at the source.
Although the key task of immission control law is air pollution control and noise abatement, it also protects other environmental media such as soil and water.
The aim of immission control legislation is to reduce the potentially harmful impacts of immissions on human beings and their environment. Its key task is air pollution control and noise abatement, but it also extends to the protection of other environmental media such as soil and water. It creates the legal basis upon which hazard control measures can be taken. Moreover, it considers the precautionary principle by countering the emergence of harmful environmental impacts. The precautionary measures addresses the industrial activities themselves and the emissions to which they give rise. The intention is to prevent the immission of pollutants into environmental media right at the source.
At the national level, the Act on the Prevention of Harmful Effects on the Environment Caused by Air Pollution, Noise, Vibration and Similar Phenomena (Federal Immission Control Act - BImSchG) is at the core of the body of statutory instruments that makes up immission control legislation. German immission control legislation has undergone a dynamic development since BImSchG entered into force in 1974. It has in the meantime received significant reinforcement in the form of numerous statutory instruments and two significant administrative provisions – Technical Instructions on Air Quality Control (TA Luft) and Technical Instructions on Noise Abatement (TA Lärm). The BImSchG also adopted some important legal innovations from European law, such as the integrative, cross-media regulatory approach of the EC directive on the Integrated Avoidance and Reduction of Environmental Pollution, the IPPC directive, subsequently renamed the Industrial Emissions Directive (IED), EU air quality legislation and EU directives for noise pollution control. There are in addition various international conventions, which have influenced the development of immission control legislation. Noteworthy in this context are the following:
Activities of UBA
Bringing more justice into immission control legislation
A study commissioned by the German Environment Agency (UBA) has broadened the discourse on environmental justice in Germany with the addition of a jurisprudential perspective.
The study combines the concepts of justice presented in the philosophy of law with existing environmental legislation and shows how these concepts are already reflected in air pollution control legislation. For instance, international, European and national environmental legislation already features numerous recognisable normative starting points for both the procedural justice concepts of inter-generational justice, environmental justice, equal opportunities and the Capability Approach and the weighting requirement, the weighting procedure and the proportional equality which specify and operationalise the substantive concepts of justice.
However, research into immission control legislation revealed some starting points for improving the practical realisation of the concepts of justice. For instance, the researchers suggest improvements in procedural law to improve the implementation of the Capability Approach. A more consistent application of the precautionary principle to all environment users, including agriculture, would, among other things, serve the cause of proportional equality and support the idea of inter-generational justice.
The systematisation approach developed within the context of this study, which binds together concepts of justice in the philosophy of law and the justice requirements in international, European and national law, can be used in the investigation of other areas of special environmental law.
You can find an English summary of the study, which was the work of Andreas Hermann and Silvia Schütte (Öko-Institut e.V., Darmstadt) and Prof. Martin Schulte and Kathleen Michalk (Technische Universität Dresden, Institut für Technik- und Umweltrecht), here.
Experience of environmental regulatory approval procedures on the basis of three sample locations
Plant operators in particular often come up with the criticism that the approvals procedures are too cumbersome and too long-winded. The “Erfahrungen mit umweltrechtlichen Genehmigungsverfahren anhand von drei exemplarischen Standorten” study shows that it is possible to shorten the approvals process without undermining the environmental protection requirements.
The authorities can grant approval more swiftly to industrial plants faster if they work together with the plant operators in the context of a joint approval strategy. Legally speaking this is possible because the environmental instruments are by and large appropriate for the effective and efficient approval of plants. This is the conclusion reached by the researchers in their empirical study commissioned by the German Environment Agency. They examined 24 approvals procedures for various plants at three different-sized companies from different industries. Conclusion: There is no typical approval process. The course of each individual procedure depends in practice on many factors, such as, for example, good preparation and coordination of the individual process steps. The authors see opportunities for improvement above all in practice, less so with the legal instruments.
The authors did not restrict their work to the analysis of the relevant documents and the correspondence between the operators and the authorities. The researchers also visited the selected sites several times, not infrequently over the course of several days at a time, in order to gain an impression of events on the ground. They carried out interviews with relevant stakeholders from the companies and the administration.
From their extensive analyses and observations the study's authors came up with a series of proposals and recommendations, including some for the legal instruments. The proposals range from the early clarification of the exact documents to be submitted and the improvement of the mailing service through to the consistent use of application conferences. The proposals and recommendations of the authors are aimed equally at the plant operators and regulatory authorities.
The study commissioned by the German Environment Agency entitled “Erfahrungen mit umweltrechtlichen Genehmigungsverfahren anhand von drei exemplarischen Standorten” [Experience of environmental regulatory approvals procedures on the basis of three sample locations] was published in German by Erich Schmidt Verlag Berlin.
Plant monitoring in environmental law
On the relationship between state and self-monitoring
This study, which was compiled on behalf of UBA by Prof. Hans-Joachim Koch in collaboration with Dr. Ulrike Borchardt, Prof. Fritz Haag and Dr. Silke Ruth Laskowski, is concerned with the quality of the monitoring of compliance with environmental requirements and the possible improvement thereof by increasing the role of self-monitoring. Environmental law already relies at many points to a considerable extent on self-monitoring activities carried out by the plant operators. The background to this is that, notwithstanding considerable efforts, also at the conceptual level, on the part of the state administrations, the regular monitoring carried out by the authorities has failed to reach the level of intensity that is desired and, quite possibly, required by law. After an empirical survey of the actual monitoring situation, the authors go on to discuss models whereby state monitoring is replaced by participation in the eco-audit. They come up with a monitoring model for the future which takes the middle path between the individual responsibility of the operators and the state’s responsibility to guarantee compliance.
The study commissioned by the German Environment Agency entitled “Anlagenüberwachung im Umweltrecht – Zum Verhältnis von staatlicher Überwachung und Eigenkontrolle″ [Plant monitoring in environmental law – on the relationship between state and self-monitoring] was published in German by Erich Schmidt Verlag Berlin. It is available from the library of the German Environment Agency.