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Basic issues

Are Authority-to-Intervene-Norms under Environmental Law Structural Police Law?

Fabian Iwanczik - Universität Bonn, Prof. W. Durner

Under the working title ’Are authority-to-intervene-norms under environmental law structural police law?’ shall be attempted to systematize the existing knowledge on authority-to-intervene-norms under environmental and police law governing the warding off of dangers. Similarities and differences between various authority-to- intervene-norms are to be identified, thus making it clear to what extent the roots of environmental law in police law are still effective today.
The doctoral project focuses on five provisions from core statues of German environmental law, namely the Federal Immission Control Act, the Federal Water Act, the Closed Substance Cycle Waste Management Act, the Federal Nature Conservation Act and the Federal Soil Protection Act. These five provisions are to be compared with a model of police law that draws primarily on general clauses in police law that authorize intervention toward off dangers. Key aspects of the model of police law will be, for example, the tasks of the respective authority, objects of protection, intervention thresholds and legal consequences.
Established in this manner, the German model of environmental law enforcement is then compared with the US model of environmental law enforcement. At the core of the latter is the Environmental Protection Agency as independent executive agency, which pursues a political, formative and developing approach setting and enforcing standards and regulations. There is no corresponding concept in German environmental law. Both legal systems face similar challenges in environmental law enforcement, so it will be interesting to see how the respective models deal with them.

Rights of Nature

Jula Zenetti - UFZ, Prof. W. Köck

In the 1970s, Christopher Stone surprised the world (of legal sciences) with a fundamentally new concept: the recognition of rights of nature. Today, rights of nature are recognized in 23 countries, either at the national or local level. The reason for this development is often the influence of indigenous communities, as in the case of Ecuador, which was the first country to recognize rights of nature in 2008. Rights of nature are implemented in different ways, as the following examples show: recognized are rights for ’Nature‘ as a hole or for parts of nature represented by everyone or by determined trustees via the law or courts.
The thesis will analyse two questions especially:
Is there an added value to the rights-of-nature approach compared to current European and German environmental law, and if so, what is the added value of that approach? Three areas will be examined with regard to the possible added value of rights of nature. Firstly, the connection between transformation and law, specifically rights, is analysed. Secondly, substantive law is examined. The scope and status of regulations aiming at the protection of nature is compared to the scope and status of the rights of nature. The effects of potential differences, for example, regarding a conflict of interests is further analysed. In addition, how both systems regulate environmental damages and the compensation for violations of environmental standards or rights of nature respectively is compared. Thirdly, procedural law is examined. The individuals and environmental organisations’ rights of action are compared with the rights of actions of nature.
How can rights of nature be implemented? The possibility of a recognition by European, national or local law as well as a by courts through the interpretation of existing law is illuminated.

The Preliminary Reference Procedure under Art. 267 TFEU in Environmental Law

Joschka Schlake - Universität Bremen, Prof. C. Franzius

The dissertation project addresses the European Court of Justice’s (ECJ) preliminary ruling procedure under Article 267 TFEU. In the past, European institutions have repeatedly referred to the preliminary ruling procedure as the main vehicle of the European legal protection system; it aims to ensure the uniform interpretation and effective application of EU environmental regulations in the legal systems of Member States. By means of reference procedures from the field of environmental law, it will be worked out how the reference mechanism mediates between the legal systems of the EU and its Member States, and why this type of procedure is of particular importance for environmental law. The core of this mechanism is the dialogue between the ECJ and the national courts. This dialogue requires a cooperative relationship between the interacting actors. Yet it also causes tensions, since the courts and the ECJ must reconcile the European and national interests and perspectives in the further development of Union law. The project therefore examines how the preliminary ruling procedure is used in practice, and how the actors are motivated when submitting a preliminary reference request, refraining from doing so or following up on received responses. The study of the functioning of the legal protection by dint of Art. 267 TFEU then leads to an enhanced understanding of the preliminary ruling procedure and its conceptualization.