Mining law

The extraction of lignite from opencast mines is also subject to mining lawClick to enlarge
The extraction of lignite from opencast mines is also subject to mining law
Source: bibi /

Every industrialised economy is dependent on a secure supply of raw materials. Manufacturing industry and the energy sector in particular require immense amounts of such materials. It is for this reason that Germany extracts its own deposits and also imports significant amounts of those raw materials which are not available domestically.

In 1982 the German federal legislative body replaced the confusing mass of state mining regulations with a single unified, albeit not definitive, regulatory regime in the form of the Federal Mining Act (BBergG). This serves mainly to underpin the secure supply of raw materials with more efficient licensing and approval procedures and prioritises the extraction of raw materials over other overriding interests of the common good. This is particularly evident in what is known as the raw material safeguarding clause. According to this clause, regulations under public law that stand opposed to the exploration for and extraction of raw materials should be applied only to the extent that any deleterious impact on exploration and extraction can be kept to an absolute minimum.

From the environmental perspective, the BBergG still has deficiencies. The inevitable disruption to nature and landscapes caused by mining activities and the associated burden on the people living in the mining regions (caused, for example, by particulate pollution from mines, the formation of cracks in houses, ruptures and resettlement measures) have still not been satisfactorily resolved. Managing the consequences is also a major challenge: examples include the long-term depletion of aquifers, the permanent loss of natural soil fertility even after completed renaturation, impacts on the usability of water bodies due to acidification or of tracts of land caused by the lack of stability of the soils used to fill in the old mining works. Also unanswered is the question of who will ultimately pay for the permanent legacies of the mining industry, which, in the light of the foreseeable end of hard coal mining in 2018, the debate on the apportionment of costs for the final disposal of nuclear waste and also in respect of the impending phasing out of lignite-fired power generation for climate protection reasons, is currently the subject of heated debate.

The mining authorisation regime works on a first come, first served basis. The mining companies stake their claims and, after the granting of exploration permits, can in principle access the deposits safe in the knowledge of the irrevocability of the consent. In other words, with the granting of the exploration licence a temporary preliminary decision in favour of a certain use has already been made. Public participation is not envisaged by the BBergG in this respect. In this way, the conflict between the interests of local residents and the profit-making interests of the companies is in most cases resolved in favour of the latter at this early stage of the project.

The protection afforded by the Mining Act to those affected by resettlement measures is commensurately weak. This comes into effect in the context of the land cession procedure provided for by the Mining Act only at the end of a long chain of grants of planning permission by policy makers and approvals by the mining supervision authorities. This is considered by those seeking legal protection to be completely inadequate. This practice was contradicted by a ruling of the Federal Administrative Court (ref: 7 C-11.05) in 2006, subsequently confirmed by the Federal Constitutional Court in its Garzweiler decision of 2013 (ref: 1 BvR 3139/08; ref: 1 BvR 3386/08). According to the Senates, protected ownership interests can be infringed by the mere preparation of a general operating plan. The fact that the decision on whether to allow the extraction to go ahead has already been taken at a previous juncture and that appeals, for instance against the resettlement of affected parties, regularly fail makes no difference.

From the perspective of the affected property owners, the law governing damage caused by mining is incomplete. It privileges those residents whose properties lie within an area affected by deep mining insofar as, in the event of damage to property on the surface, the legal presumption is that the damage has been caused by the extracting companies. Opencast mining still lacks a system to reverse the burden of proof. Legally speaking, whether the presumption also applies to borehole mining is also a matter of dispute. In practice, the corresponding regulation is in any case not currently applied to these cases. The affected parties therefore bear the burden of proof that damage has been caused to their property by opencast or borehole mining activities. Such evidence is however likely to result in success only in rare cases and often leads to costly and protracted legal disputes.

With the increasing use of the substrate (for example, as a storage medium, a natural sink, for deep geothermal energy, CCS) or the use of unconventional - as yet untested or insufficiently tested - mining technologies (e.g. fracking, tertiary oil extraction) new conflicts with protected neighbourly interests and further risks to the environment can be expected, for which the BBergG in its current version is not sufficiently prepared. With regard to the use of fracking in the exploration and extraction of shale and coal seam gas, the federal legislature has responded and will selectively adapt the Federal Water Act (Wasserhaushaltsgesetz), the BBergG and other sub-legal regulations. The opportunity for a comprehensive reform of the BBergG as called for by representatives from science, the Länder, associations, and also by the German Environment Agency (see UBA position paper), is however yet to be exploited. The German Environment Agency also maintains that further action is needed to protect resources. For instance, research is needed into the establishment of a legal framework to manage the extraction and use of raw materials in Germany in such a way as to ensure that the needs of both present and future generations can be met, high environmental standards can be observed and, at the same time, the consumption of raw materials and environmental pollution do not simply shift abroad.

Legal research projects on this topic have already been carried out in the environmental field and have revealed potential for action, especially in mining law (development of a regulatory concept for a German Federal law to protect resources). Further projects to improve the implementation of resource protection in Federal law are still being carried out (e.g. legal instruments of general resource protection - FKZ 3711 18 102) or are planned (instruments for the environmentally sound management of raw materials/INSTRO - FKZ: 3715 17 1050).