Environmental law is not a clearly delineated area of law. The starting point of protection means protection against impairments. Various approaches are possible to achieve this protection:
- Minimizing the effects on the protected good: One starts with the protected good and its dangers and limits or minimizes the effects on the protected good. This approach is the basis of many environmental protection laws. Well-known examples of this are the nature conservation laws , the water balance law and the state water laws.
- Limiting the harmful effects of known environmental hazards: One starts from known sources of environmental hazards or damage and limits the harmful effects emanating from them. This can be done in two ways. On the one hand, a source-related approach can be used, i.e. the emissions emanating from a source of danger are regulated . On the other hand, it can be applied in relation to the environment, whereby a total immission load is determined, which is then to be undercut by regulations on the individual sources. The simple, source-related approach is based on German pollution control law, which regulates the emissions of certain emitters in a more or less “haphazard” manner, that is, without real overall pollution limits. The US-American immission control law, however, sets health-oriented upper immission limits (so-called National Ambient Air Quality Standards ), which can then be achieved through various regulatory approaches at the sources of pollution.
- Regulations on environmentally hazardous substances and objects: Certain environmentally hazardous substances or objects are subject to a regulatory regime in order to minimize the environmental dangers emanating from the substances or objects themselves or from handling them. Examples here are in particular waste and chemicals law, and to some extent nuclear law.
Some environmental protection regulations cannot be clearly assigned to one of the approaches mentioned, but rather follow a mixed method. This includes, for example, parts of the Federal Immission Control Act .
German environmental law
Since 1994, German constitutional law in Article 20a of the Basic Law has obliged the state to protect the natural foundations of life. This is not a basic right, but a so-called state objective , that is, a program mandate for public authority. Legislators and administrations are generally obliged by this, but certain legislative or administrative action is only legally enforceable in individual cases.
Marginal and overlapping areas of environmental law
Many planning regulations can be counted under environmental law because they - in addition to other objectives - serve environmental protection to a greater or lesser extent. Their starting point is shifted forward, so to speak, in that they are intended to ensure that certain environmental damage is avoided as early as the planning stage. Examples of this are above all the law on environmental impact assessment , but also the building code and the regional planning law .
There are also numerous criminal and administrative offenses that are intended to serve environmental protection. Serious environmental offenses are regulated in Section 29 of the Special Part of the Criminal Code (Sections 324–330d); Most environmental protection laws contain additional criminal and administrative offense provisions related to the respective special matter. Many of these regulations are criticized because the criminality of certain behavior often depends on official guidelines.
Experience has shown that the protection of the environment by criminal law is in itself ineffective. Reasons for this include a. Problems with clearly demonstrating the cause of environmental damage. As in other areas of criminal law, the deterrent effect of the threat of punishment is also small here.
Finally, there is an area of overlap with general health protection and specific health protection at work. Many regulations with these objectives also provide protection against environmental damage, so to speak; however, some are formulated in parallel with both objectives.
Demand for standardization through an environmental code
Environmental law is scattered across many laws. If, for example, a European legal requirement is to be implemented in national law that affects the legislative competences of the states (e.g. water law, nature conservation law), a total of 17 different legal acts come into effect in Germany, first by the federal government and then by the federal states. Penalties for late implementation of EU directives by individual federal states (example: the obligation to designate fauna-flora-habitat areas in Lower Saxony) then had to be paid or submitted by the Federal Environment Ministry due to the federal government's external responsibility. For this reason, environmental scientists and environmental lawyers have been calling for many years to encode environmental law in an environmental code (UGB) and to better coordinate the individual provisions in the interests of better law enforcement. Although elaborated and partially commented drafts (UGB-ProfE, SK-UGB; the last draft is from 1997) are available, the German federal states have so far lacked the political will to support this project and put it into practice. After the failure of the so-called Federalism Commission, the subject of the environmental code came back on the political agenda as part of the coalition agreement of the grand coalition. Since March 2006 there has been a first draft of the Federal Council to change the legislative competences in the environmental area; such a law would create a prerequisite for the introduction of an environmental code.
The previous laws followed an administrative approach, i. H. Certain branches of the administration are obliged to carry out environmental protection tasks or only to take into account environmental protection issues when carrying out their own tasks. Experience has shown that the control effort is very great. For this reason, for some years now, new strategies have been applied that go far beyond the traditional area of environmental protection law and carry aspects of environmental protection into other specialist laws and other policy areas. This is consistent because environmental protection is an interdisciplinary and interdisciplinary topic. The strategy that is often followed is that economic benefits are granted if someone uses environmentally friendly technology that goes beyond legal obligations. However, terms such as “economic strategies” should not obscure the fact that compliance with these economically oriented “rules of the game” also requires control.
Three examples of such "economic instruments" in environmental protection that go beyond the conventional regulatory area of environmental law:
Motor vehicle taxation
Like all taxes , this primarily serves to generate government revenue. In recent years, the Motor Vehicle Tax Act has been redesigned in such a way that it also offers incentives for using the latest technologies to reduce pollutants. These regulations are related to those on vehicle registration. The approval regulations always lag behind the respective technical standards by a few years. However, the KfzSt is designed in such a way that noticeable tax breaks are granted for vehicles with the most modern standard . This creates an incentive for consumers to choose vehicles that are as low-emission as possible when purchasing new products. See also eco tax , environmental tax .
Environmental management and environmental auditing
experience in the industrial sector has shown that the administration of environmental protection always lags behind technological developments and can provide little more than that, for after the identification of new environmental problems. B. retention or filter technologies are developed and implemented - slowly and at high cost. It is much more efficient if new industrial processes are developed with an eye to the environmental impact and the company organization integrates the requirements of environmental protection into its day-to-day operations. This idea is based on the EC regulation "on the voluntary participation of organizations in a community system for environmental management and environmental auditing", usually named after the English abbreviation EMAS for Eco Management and Audit Scheme in German-speaking countries . It is intended to create incentives for companies to set environmental protection goals beyond the mere compliance with legal obligations, to optimize their operational processes under environmental aspects and to publish this in an effective manner. However, it is doubtful whether these are sufficient approaches, because environmental management is already understood when a company establishes an organizational system that is supposed to ensure compliance with all environmentally relevant regulations; whether this actually occurs remains out of consideration.
This instrument comes from the environmental protection law of the USA and consists in the fact thata total emission amount is created for all participating emitters within a certain area byway of the so-called bubbling, a large bubble is graphically formed over all emitters and their total emission is fixed. In the amount of this issue amount, the state creates emission rights and distributes them to all emitters under the bubble according to a specific key. It is now up to the issuers whether they maintain this distribution or change them by transferring the rights (for a fee) to one another; in any case, no more than the total number of emission rights may be emitted. This system can be combined with a degressive component, that is, the total amount of emission rights, and thus emissions, is reduced over time, so that the emitters involved are forced to emit less than before. As market-oriented as the outlined system may seem, it also requires intensive administrative controls. The system can only be successful if it is ensured that each emitter only emits as much as it is authorized to do according to the emission rights it holds. The precise control is made more difficult here because the emission rights fluctuate due to the trade that is carried out with them between the issuers, making it more difficult to determine the inventory of emission rights for individual emitters.
The development described has the effect that environmental law in the narrower sense does not lose its importance, but can hardly be clearly defined. Environmental concerns "seep" into other areas of law. This makes the overview more difficult overall.
Austrian environmental law
In Austria, too, the legal basis is split up into numerous legal norms, so that some speak of a flood of norms . In terms of its legal nature, environmental law is largely shaped by public law and is therefore part of constitutional and administrative law, and in some cases also part of criminal law. There is also private environmental law.
Public environmental law
From a constitutional point of view, it is a cross-sectional matter, so legislative and enforcement powers fall to the federal, state and local governments. Accordingly, there is an environmental administration organization at the federal, state and municipal levels, with many and important competencies, particularly those relating to investment law, being concentrated in the district administration authorities.
In addition to classic regulatory instruments for direct behavior control such as licensing obligations, requirements or official monitoring measures, in particular in plant law according to the trade regulations and in the law of waste management , environmental law also has instruments of target-oriented behavior control in environmental planning law, environmental audits according to the EIA Act as well as instruments for indirect behavior control such as environmental taxes, developed the eco-audit or environmental information system ( UIG ).
Individual items of regulation
- Genetic engineering
- Water, soil and climate protection
- noise protection
- Air pollution control
- Nature and landscape protection
Nuclear and radiation protection
According to the Federal Constitutional Law for a Nuclear-Free Austria of 1999, plants serving the purpose of generating energy through nuclear fission may neither be built nor put into operation in Austria. The Radiation Protection Act (StrSchG) regulates the protection of people and the environment from damage caused by ionizing radiation, for example in medical applications or at the workplace.
Austria has not acceded to either the Vienna or the Paris nuclear liability conventions. These agreements contain provisions on upper limits of liability and determine the place of jurisdiction for the injured party. The Austrian Atomic Liability Act (AtomHG) defines the place of the damaging event as the place of jurisdiction; there is no upper limit of liability. It is therefore cheaper for injured parties than the international nuclear liability regime.
The 2012 amendment to administrative jurisdiction has also profoundly redesigned the legal protection system in Austrian environmental administrative law, such as the introduction of a two-tier administrative jurisdiction and the extensive abolition of administrative bodies and corresponding appellate authorities, including the independent administrative senates and the environmental senate.
Environmental criminal law
The “publicly dangerous offenses and offenses against the environment” can be found in Section 7 of the Criminal Code (Sections 169–187 StGB). The Species Trade Act (ArtHG) punishes the illegal trade in certain wild animal and plant species.
Environmental private law
The private environmental law shows a direct and typical relation to the environmental media soil, air, water and noise. It includes those civil law norms (in particular §§ 364 ff. ABGB ) that are used in environmental disputes between persons under private law. This particularly affects pollution control law ( neighboring law ), environmental agreements (including environmental mediation), environmental management ( EMAS ), national and international environmental liability law, as well as the interfaces, border areas between private and public environmental law. Civil law issues of energy and traffic law are also increasingly coming into focus.
Swiss environmental law
The basis of Swiss environmental protection legislation is Article 74 of the Federal Constitution . Paragraph 1 of this article reads: The Confederation shall issue regulations on the protection of humans and their natural environment from harmful or nuisance effects.
Based on this, the Federal Act of October 7, 1983 on Environmental Protection ( Environmental Protection Act , USG) was passed. Water protection is regulated in a separate law: Federal Act on the Protection of Waters of January 24, 1991 (Water Protection Act, GSchG).
Based on these laws, there is a whole series of ordinances (selection):
- Water Protection Ordinance of October 28, 1998 (GSchV)
- Ordinance of October 19, 1988 on Environmental Impact Assessment (UVPV)
- Ordinance of 27 February 1991 on the protection against major accidents ( Major Accidents Ordinance , StFV)
- Ordinance of December 15, 2006 on the Register of the Release of Pollutants and the Transfer of Waste and Pollutants in Wastewater (PRTR-V)
- Ordinance of July 1, 1998 on pollution of the soil (VBBo)
- Clean Air Ordinance of December 16, 1985 (LRV)
- Noise Abatement Ordinance of December 15, 1986 (LSV)
- Technical Ordinance of December 10, 1990 on Waste (TVA)
- Ordinance of June 22, 2005 on the Movement of Waste (VeVA)
- Contaminated Sites Ordinance
- Ordinance of May 18, 2005 on the reduction of risks when handling certain particularly dangerous substances, preparations and objects ( Chemical Risk Reduction Ordinance , ORRChem)
- Containment Ordinance and Release Ordinance (for biotechnological and genetic engineering organisms)
(all ordinances can be found as full text in the systematic collection of federal law)
The nuclear - and radiation protection legislation is a special legislation outside the environmental law.
History of origin
The creation of the USG was a lengthy process that shows an initial political reluctance. In 1965 a proposal on the subject was submitted to the federal parliament. It was not until five years later that the latter endorsed the creation of the above-mentioned constitutional article, which was subsequently adopted by popular vote with over 90% yes. Then it took a full 10 years before the draft law was ready for discussion in the National Council . Due to a negative consultation process, a fundamentally new draft was drawn up by the administration during this time. The deliberations in parliament lasted for almost three years until 1983. The law then came into force in 1985.
EU environmental law
Originally, environmental protection was not one of the tasks of the European Community. The Treaty of Rome did not contain any provisions on this. Since the 1970s, there has been increasing criticism that European trade and economic policy is “blind” with regard to environmental protection issues, not least after the Club of Rome's report on The Limits to Growth of 1972 The Maastricht Treaty of 1992 expanded the tasks of the community to include environmental protection and an improvement in environmental quality.
Since the Treaty of Lisbon and the Treaty on the Functioning of the European Union (TFEU), European primary law has contained various environmental provisions in the EU Treaty . The aim is the sustainable development of Europe on the basis of balanced economic growth (Art. 3 TFEU). Art. 11 TFEU contains the principle of integration and the principle of sustainability , Art. 191 TFEU the precautionary principle , the polluter pays principle and the principle of origin. In 2007, the goals were expanded to include combating climate change . Independent goals of energy policy are the promotion of energy efficiency, energy savings and the development of new and renewable energy sources (Art. 194 TFEU).
Originally, European environmental law was strongly influenced by German environmental law. In this initial phase, European environmental law still followed a sectoral approach, i.e. environmental protection measures were regulated in delimited areas (e.g. only soil protection).
Current European environmental law pursues a so-called integrative approach, which means that the environment is understood as a system whose protection requires cross-sectoral regulations (i.e. for water, soil and air together). The IVU guideline is an example of this integrative approach. There is also an increased integration of environmental protection regulations into numerous other regulations, which are mostly motivated by economic policy.
Secondary sources of law in environmental law are mainly directives and ordinances . There is also a large number of subsidies that are awarded by the Commission according to certain criteria, regulated in the environmental aid guidelines. The guidelines, which were renewed in 2014, serve in particular to achieve the 2020 climate targets and are intended to counteract market distortions that may arise as a result of promoting renewable energies.
Relationship to the legislation of the member states
European environmental law has a major influence on the environmental law of the member states and its further development.
The EU Commission and the EFTA supervisory authority check the implementation of and compliance with EU legal requirements in the member states.
International environmental law
As in other areas of international law, international environmental law is primarily concerned with contractual relationships between states in which these states enter into certain obligations, such as: B. in the Aarhus Convention . Germany is a party to numerous international environmental protection agreements . The best known are the United Nations Framework Convention on Climate Change of 1992 and the associated Kyoto Protocol . Situated on the 2015 United Nations Climate Change Conference reached agreement applies unless the industrialized countries and the emerging and developing countries a.
The bilateral and multilateral environmental agreements in force to which the Federal Republic of Germany is a party are published in Part II of the Federal Law Gazette. The so-called reference B of the Federal Law Gazette Part II, which is updated annually by the Federal Ministry of Justice, provides an overview of all contracts that are valid and published for the Federal Republic of Germany, including the environmental conventions.
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