National law governing soil protection is enshrined in many different laws and regulations. The Federal Soil Protection Act and the Federal Soil Protection and Contaminated Sites Ordinance are of particular importance in this context. The following list of laws and subordinate legislation which, in addition to the Federal Soil Protection Act and Federal Soil Protection and Contaminated Sites Ordinance, also include other relevant provisions, is not exhaustive.
Federal Soil Protection Act and Federal Soil Protection and Contaminated Sites Ordinance
The purpose of the Act is to sustainable secure or restore soil functions. Negative effects on soil must be avoided, and such negative effects on soils must be rehabilitated. In addition, precautionary measures must also be taken.
The Federal Soil Protection Act of 17 March 1998 (BBodSchG) is only applicable when other legislation – like the Fertilizer Act or urban planning and building law – does not regulate effects on soil conditions. The provisions concerned are listed in Article 3 BBodSchG. However, the case law requires that the substantive requirements of soil protection law contained in the Federal Soil Protection and Contaminated Sites Ordinance of 12 July 1999 (BBodSchV), are taken into consideration in the enforcement of these other laws.
The focus of BBodSchG is on the rehabilitation of contaminated sites. Both pieces of legislation, the act and the ordiance, establish precise standards for the evaluarion of contaminated sites and decision-making process. BBodSchG and BBodSchV also outline the requirements to be met in precautionary soil protection. The establishment of precautionary values and of requirements for the introduction of materials into soil is important in this context. Article 17 BBodSchG requires compliance with specified standards, called good agricultural practices when using the soil for agricultural purpose. Germany's Länder have enacted their own laws to more specifically define and implement BBodSchG and BBodSchV.
Building law/regional planning law
Building law and regional planning law also contain provisions relevant to soil. Section 1a Paragraph 2 of the Federal Building Code states that 'land shall be used sparingly and with due consideration'. This principle must be taken into account in urban planning in particular. Regional planning law contains regulations regarding overall area planning and thus the use of land and soil. The relevant provisions at federal level are contained in the Federal Regional Planning Act (Raumordnungsgesetz). The Länder have corresponding Land legislation.
Closed Cycle Management Act, Sewage Sludge Ordinance and the Ordinance on Biowaste
Waste management regulations such as those in the Closed Cycle Management Act of 24 February 2012, which entered into force on 1 June 2012, are also important for soil protection. The Sewage Sludge Ordinance and the Ordinance on Biowaste are also relevant in this context. The legal regulations regarding waste contain guidelines for the environmentally sound recycling and disposal of waste.
Nature conservation law
The Federal Nature Conservation Act (BNatSchG) states that interventions in nature and landscape are to avoided or offset. Article 15 (7) BNatSchG states that a statutory ordinance can regulate the details of offsetting interventions. This could in effect introduce standards as concerns interventions with soil and corresponding offsetting measures. The statutory ordinance is in preparation.
The Directive on Industrial Emissions, the Waste Framework Directive and the REACH Regulation in particular contain the provisions pertinent to soil protection.
The EU Commission submitted an official proposal for a Soil Framework Directive on 22 September 2006. The aim of the Soil Framework Directive is firstly to prevent the further deterioration of soil quality and to preserve soil functions. Secondly, damaged soils must be treated with a view to restoring functionality and to cost containment. Although the EU Parliament has approved the draft proposal, a blocking minority of five Member States – including Germany – has prevented adoption of the directive. 2014 the EU Commission has withdrawn the proposal.
There are three main international treaties which contain relevant provisions on soil protection: the UN Convention to Combat Desertification of 1994, the Convention on Biological Diversity of 1992 and the Climate Framework Convention of 1992. The main aims of the Desertification Convention are to combat desertification and to mitigate the effects of drought. The Convention on Biological Diversity focuses on the preservation and sustainable use of biological diversity, including that in terrestrial ecosystems. The Climate Framework Convention contains agreements on mitigation and adaptation measures, which include greenhouse gases sinks and reservoirs. Finally, there is regional international law: the Protocol in the field of soil conservation to implement the Alpine Convention of 1991.