Resource conservation should be prescribed by law
The growing worldwide use of raw materials, land and environmental media damages the environment and poses a major environmental policy challenge. The factors that come into play in this regard include dwindling supplies of resources, and ecosystem hazards attributable to substance inputs, greenhouse gases, and massive amounts of solid waste. Hence reducing resource use and improving resource productivity are central aims of current sustainability policy in Germany, the EU and the international community at large.
Resource conservation law is still in its infancy owing to the extreme complexity of resource use and the traditionally medium oriented structure of environmental law. To remedy this situation, resource law needs to encompass the entire supply chain, just as resource protection itself does. The interlocking nature of resource conservation also means that laws in this domain need to address not only environmental regulations, but also a whole host of other legal domains.
Against this backdrop, resource conservation law should initially concern itself with specific sectors and needs that are associated with a high level of resource use, one example being product manufacturing and consumption, or the construction industry. One of the key resource conservation tasks is to set ecological product requirements in product law, through instruments such as standards.
Resource conservation law should also concern itself with specific substance streams such as renewable and non-renewable raw materials. By extension, substance-stream laws should be based on a life-cycle approach, with the goal of achieving uniform resource conservation laws. This in turn will require the adoption of specific regulations with a relatively narrow focus, as well as omnibus regulations that address general resource conservation requirements. All of the foregoing should be incorporated into a single piece of natural-resources conservation legislation.
Refinement of proposals for resource conservation instruments
A study commissioned by UBA titled “Rechtliche Instrumente des allgemeinen Ressourcenschutzes” (legal instruments for general resource conservation) is considering options for integrating resource conservation aspects into selected fields of law and working out specific regulatory proposals for these. The legal domains considered include the legislation on spatial planning, mining, installations, building and environmental impact assessment; however, the study also looks at economic instruments that might be applied to protect resources. The study is a follow-up to the project “Development of a federal legal framework for resource conservation” (see below), which proposed a concept for a federal resource conservation act and for integrating resource conservation into various sectoral laws. The current study aims to flesh out this concept and draft detailed benchmarks for possible national resource conservation regulations.
Mining law and subsurface spatial planning
Spatial planning and mining law offers considerable potential for greater integration of the resource conservation idea and in its implementation can help ensure that resources and raw materials are used more efficiently. A position paper titled “Umweltverträgliche Nutzung des Untergrundes und Ressourcenschonung” (environmentally sustainable use of the subsurface and resource conservation) describes how subsurface spatial planning could be implemented in concrete legal terms and better represented in the authorisation of underground uses under the Federal Mining Act. It also suggests ways to strengthen environmental protection, public participation and legal protection in procedures under mining law and makes first proposals for how resource conservation could be given greater weight, also in the interests of future generations.
A workshop hosted by UBA which took place on 25 November 2014 in Kassel discussed requirements for subsurface spatial planning and mining law to achieve an environmentally friendly and resource-efficient use of the subsurface.
A legal framework for resource conservation in Germany
A study commissioned by the UBA titled Entwicklung eines Regelungskonzeptes für ein Ressourcenschutzrecht des Bundes (“Development of a federal legal framework for resource conservation”) investigated the form that a uniform and complex legal framework for resource conservation might take in Germany. The study also sought to determine whether the laws currently on the books are sufficient, or whether a separate resource conservation law is needed. An analysis of German, EU and international resource conservation laws clearly showed that resource conservation potential has not been exhausted and that a unified legal framework is needed. The study focuses on the broad outlines and instrument design of the target legal framework. The authors advocate adoption of a uniform federal resource conservation statute that would (a) set forth general regulations such as the purpose of resource conservation laws; (b) define the application domains of such laws; (c) define the relevant legal terms; and (d) lay down the legal principles of resource conservation law. The study also recommends various regulations that should be incorporated into existing laws.
Legal instruments for resource conservation
In a study commissioned by the UBA titled Grundlagen der Weiterentwicklung von rechtlichen Instrumenten zur Ressourcenschonung (“Bases for the optimization of legal instruments for resource conservation”), experts sought to determine which legal instruments are needed in order to achieve sustainable resource use. Intended as a first step toward elaborating a uniform resource conservation law, the study showed that existing environmental laws can only be a stepping stone on the path to achieving sustainable environmental use. The study authors propose ways to optimize current legal instruments, and recommend adoption of new legal instruments that would enable the government to improve resource efficiency in many areas. According to the report, it is of supreme importance that German society become more aware of resource efficiency and that efforts be made to encourage Germans to take greater personal responsibility for resource conservation.
Studies concerning substance-stream law
The UBA commissioned an interdisciplinary study concerning the possible provisions entailed by a substance-stream law. The study authors adopted a substance stream approach based on consideration of a given substance’s overall environmental impact and the concurrent management of substance streams. The study (a) focused on construction product and car material streams, which are analyzed in terms of real-world factors; and (b) elaborated instruments tailored to these problems. The study then analyzed these problems in light of policy and legal criteria, and also discussed the overarching legal issues raised by constitutional law, European law and GATT. Owing to the specific properties of each substance stream, the report came to the conclusion that (a) detailed, point by point elaboration of individual priority substance streams would be preferable to a general substance stream law; and (b) it is essential that direct and indirect behaviour management instruments be linked to an intelligent mix of instruments that are tailored to the problem in question. According to the study, laws concerning some of the investigated instruments are already on the books, while others need to be expanded or created. The study report, titled Konzeption für ein Stoffstromrecht, was published as report 7/00 by Erich-Schmidt-Verlag and can be borrowed from the UBA library.
European and international level
In the past, UBA’s research activities on this topic have focused primarily on resource-related national law and devising recommendations for its further development. However, the framework set at international level is increasingly shaping European and national law. Furthermore, international trade relations, value creation chains and product lifecycles (raw material abstraction and processing, manufacture, use and disposal of products) have meant that national economies also use natural resources from outside their territories. An effective protection of resources therefore also requires European and international regulation.
A legal study analysed normative approaches to resource protection at European level and examined where untapped potential exists which could be utilised to improve resource protection.