An Environmental Code – Unifying German environmental law
Attempts to create a unified Environmental Code for Germany have a long history. Preliminary work on consolidating the various specific laws and transposing them into a single Environmental Code (Umweltgesetzbuch, UGB) began in the late 1970s. The most recent attempt was made in the 16th legislative period (2005-2009) by the Grand Coalition, which included a corresponding reform of environmental law in its coalition agreement of 2005.
In November 2007 the German government published inter-departmentally agreed draft legislation in five books covering different areas of the law: Book I dealt with general provisions and project-related environmental law, Book II with water resources management, Book III with nature conservation and landscape management, Book IV with non-ionising radiation and Book V with emissions trading. In addition, the government submitted drafts of statutory ordinances on the projects covered by the Environmental Code (the Project Ordinance) and on environmental officers (the Environmental Officer Ordinance). There was also an introductory act addressing transitional provisions and the adaptation of other laws. The hearing of the Länder and associations took place in the summer of 2008 on the basis of revised drafts of 20 May 2008.
For a progressive Environmental Code setting high environmental standards
Early in 2007 the Oeko-Institut, the environmental organisation Deutsche Umwelthilfe (DUH) and the Independent Institute for Environmental Issues (UfU) starting working together to provide critical and constructive support to “Project UGB” in the form of events, background papers and the formulation of expert opinions.
In February 2007 experts from the three institutions presented a joint position paper entitled “Ambitious environmental standards, modern environmental law – for a progressive Environmental Code”. The Oeko-Instutut and its partners stressed that an Environmental Code is not an end in itself: the extensive reform involved makes sense only if the result is added value – in qualitative terms – for climate and environmental protection, nature conservation, and the quality of life in Germany. It must not simply comprise a bundling of existing environmental law, nor focus solely on an integrated project approval procedure. An Environmental Code must in particular include effective measures on climate change mitigation and biodiversity conservation. With this paper the authors were also responding to voices in business and politics which saw the simplified presentation of Germany’s fragmented environmental legislation as an opportunity to lower the environmental standards that had already been achieved.
The project partners put forward their detailed position on the draft legislation and ordinances during the hearing of the Länder and associations in June 2008. While agreeing that the drafts contained some well-thought-out elements, they criticised the proposed legislation on the grounds that much of it merely summed up the existing law or even fell short of the existing provisions. Furthermore, since some areas were excluded from the draft Code, it had from the outset abandoned the goal of regulating all significant environmentally-relevant activities. The draft, the partners said, was inadequate on key points, even when measured against the national and international environmental objectives agreed by the German government itself.
A missed opportunity for an integrated Environmental Code
In running from 2005 until the end of 2008, the legislative project progressed further than any of the previous attempts, but it foundered on disagreement within the coalition and the opposition of the Bavarian state government. The ultimate reasons remained unclear. An aspect that was repeatedly attacked was the integrated project approval procedure in the first book of the Environmental Code, the purpose of which was to speed up and simplify the process of project approval (for industrial facilities). On 1 February 2009 the Federal Environment Minister Sigmar Gabriel announced the final collapse of the Code.
Shortly thereafter the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety commenced the process of coordinating the views of different departments on individual laws – namely amendments to the Federal Nature Conservation Act and an act revising the water law. These and other parts of the regulations that would have been included in an Environmental Code were then passed as single laws. While this cannot replace the missed opportunity to create a unified German Environmental Code, the Oeko-Institut welcomed the adoption of these laws, since they at least minimised the risks of fragmentation of the law and legal uncertainty as a result of differing laws in the Länder.
According to the Environment Ministry, the creation of an Environmental Code is no longer on the political agenda. In the view of the Oeko-Institut it is highly regrettable that the failure in 2009 of the attempt to produce an Environmental Code meant the loss of an opportunity that would not recur in the foreseeable future – the opportunity to reform Germany’s fragmented environmental legislation and respond to pressing environmental problems, especially climate change, land take and biodiversity loss. There is still a need for extensive action in these areas of environmental policy. The issues need to be addressed through regulations that take account of impacts in all environmental media – i.e. air, water, soil, etc. – and that avoid the cumulation of pollutants or the transfer of pollutants from one medium to another.
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