Article Index

1.6.2 Legal Aspects of Enivironmental Pollution Control Practises

On the basis of the reform of federalism, in 2006 the German government put the project of compiling a comprehensive Environmental Code originally launched three decades ago back on the agenda. The reorganisation of legislative competencies makes it basically possible to achieve an enforceable nationwide "all-round codification" of all important matters covered by environmental law. Now the Federal Government had retained the competence to enact framework legislation in important environmental matters: legislation is subject to so-called „concurrent legislation“.

The reform of federalism intends to improve and strengthen the implementation of European law in Germany. Whether the reorganization of competencies between the Federal Government and the States will ultimately lead to better and quicker implementation of European law remains to be seen. In any case, the reform has paved the way for establishing a unified Environmental Code (UGB), comprising the following sections:

  • General objectives and principles of environmental law,
  • cross-sectorial environmental subject matters,
  • project-related environmental law (integrated project licensing, intervention measures and monitoring, environmental protection in enterprises, environmental management systems),
  • water management,
  • nature conservation.

Irrespective of the cross-sector orientated Environmental Code a lot of sector legal regulations for the different environmental matters in Germany is in force. In the following, we will point out as an example the existing regulations for controlling soil pollution respective soil quality. A major problem in assessing soil quality is that the available data are gathered at different administrative levels. These data have to be made compatible and processed, fed into soil information systems and interpreted. Soil protection is a complex, interdisciplinary field, and national soil protection law needs to be better dovetailed with other relevant areas of law so that visible progress can be made by integrating soil protection aspects into other sector legislation.

The precedential areas of sector legislation include:

  • Certain provisions of the Closed Substance Cycle and Waste Management Act (Kreislaufwirtschafts und Abfallgesetz).
  • Provisions on the carriage of hazardous goods
  • Fertilizer and plant protection law
  • The Genetic Engineering Act (Gentechnikgesetz)
  • The Federal Forest Act (Bundeswaldgesetz) and Länder forest law
  • Land consolidation law
  • Construction, modification, maintenance and operation of transport routes and provisions governing traffic and transport
  • Construction planning law and building regulations
  • Federal mining law
  • Federal pollution law

The Federal Soil Protection and Contaminated Sites Ordinance (Bundes-Bodenschutz- und Altlastverordnung or BBodSchV) is the main statutory instrument for enforcement of soil protection law in Germany. The Federal Soil Protection and Contaminated Sites Ordinance make use of several powers conferred under the Federal Soil Protection Act: The Federal Soil Protection and Contaminated Sites Ordinance (Bundes-Bodenschutz- und Altlastverordnung or BBodSchV) is the main statutory instrument for enforcement of soil protection law in Germany. The Federal Soil Protection and Contaminated Sites Ordinance make use of several powers conferred under the Federal Soil Protection Act:

  • The Ordinance covers the investigation and evaluation of suspect sites, contaminated sites and soil degradation, and lays down requirements for sampling, analysis and quality assurance.
  • It lays down requirements for hazard prevention by means of decontamination, containment, protection and restriction measures, and supplementary requirements on remediation investigations and remediation plans for certain sites.
  • It contains requirements for the prevention of soil degradation.
  • It contains requirements for the prevention of soil degradation.
  • Finally, it specifies trigger values, action values, precautionary values and permissible aditional pollution loads.

A standstill or even weakening of existing framework legislation should be prevented at all circumstances. Rather, the core preconditions for effective nature conservation must be guaranteed by law. These include in particular

  • Regulation of interventions including changes in land use that are relevant for greenhouse gas emissions, with consistent preference given to compensation in real terms rather than monetary compensation
  • Landscape planning by retaining compulsory planning procedures at all levels of political decision-making
  • Ensuring the development and further extension of the system of protected areas
  • Improving the interfaces between nature conservation, soil protection and water law by making it compulsory to develop multifunctional measures and to coordinate the use of instruments in sector legislation
  • Further developing the regulation of good practices to reduce the environmental damage caused by agriculture, which is to a great extent relevant for climateprotection
  • Monitoring environmental status by establishing an effective database to provideinformation on the status of the ecological balance and biodiversity, and the effectiveness with which they operate.

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