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Fundamentals of Environmental Law

Steering Constitutional Law? - An Analysis of the Capabilities of Multipolar Constitutional Law Relations using the Example of Legislation to Accelerate Approval-Procedures for Climate-Neutral Infrastructure

Niklas Täuber - Freie Universität Berlin, Prof. C. Calliess

In order to achieve the targets agreed upon in the Paris-Agreement to combat the climate crisis and thus prevent the potentially catastrophic effects of climate change, each of the signatory states, including Germany, must significantly reduce their greenhouse-gas emissions. The expansion of renewable energies is crucial to achieving the targets set. However, the expansion has been stagnating for years. The realization of a single wind-turbine often takes five to seven years. For this reason, the newly formed government launched a series of legislative amendments with acceleration measures to speed up the lengthy procedures for project implementation after the 2021 federal elections. The efficiency and legality of the measures introduced have been examined thoroughly in legal literature. 

However, an analysis through the lens of constitutional law is lacking. This dissertation’s objective is to close this gap. The aim is to examine the extent to which the German constitution prescribes and/or hinders said acceleration. The core of the analysis is the carving out of the multipolar constitutional relation that arises specifically in the situation of the expansion of renewable energy infrastructure. While classic environmental law usually fits into a constitutional-law-"triangle" (beneficiary – burdened party – environment), a more complex situation arises here. Article 20a Grundgesetz will take centerstage as it stipulates the objective of climate protection, while at the same time demanding the protection of environment and biodiversity; thus calling for an acceleration and, at the same time, a more cautious approach to the approval-procedure in order to protect the environment from developmental action. The analysis will further incorporate other norms of constitutional law, in particular the GFCC’s creation of the intertemporal safeguarding of freedoms. In its further course, the work will analyze the extent to which constitutional law is able to steer legislative attempts to speed up procedures by setting targets and limits.

The Non-Compliance Mechanism of the Aarhus Convention. An Analysis of the Non-Compliance Mechanism Contributing to the Implementation and Enforcement of Environmental Procedural Rights

Kristina Dierkes - Osnabrück University, Prof. P. Cancik

In 1998, 38 states and the European Union signed the Aarhus Convention. It is the first binding international treaty to grant environmental access rights: access to information, public participation in decision-making and access to justice in environmental matters. In the light of major implementation gaps in national climate and environmental laws, these fundamental rights aim to “further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment”.

If the ‘Aarhus rights’ are not adequately guaranteed at the national level, a non-compliance mechanism can be triggered by a submission from the party concerned or another party, a referral from the Secretariat or a communication from the public. The Aarhus Convention Compliance Committee (ACCC) then examines whether the party concerned is in non-compliance with the Convention. If appropriate, the ACCC agrees on interim measures or recommendations. The MoP then takes a binding decision on the measures to be taken. In what is known as the follow-up procedure, the ACCC monitors and assists the parties in implementing these measures.

This PhD project examines whether and to what extent the non-compliance mechanism of the Aarhus Convention promotes the implementation and enforcement of the rights guaranteed by the Convention. The first part describes the non-compliance mechanism in detail. It will be explained how the mechanism operates de jure. In order to determine how it works de facto, data on the non-compliance mechanism will be collected from publicly available documents, systematised and prepared for a detailed description. In a second analytical part, the research question on the effectiveness of the mechanism will be answered. For this purpose, documents from the follow-up procedure will be analysed to determine whether, how and to what extent the Parties comply with the recommendations adopted by the MoP. Finally, the results will be analysed and discussed in relation to the research question.

Nature Conservation as an Instrument of Compensation - A Comparative Study of selected Compensation Systems

Jan Markgraf - Osnabrück University, Prof. P. Cancik

Nature conservation law in Germany has long provided for the compensation of interventions. Compensation measures are intended to offset or at least reduce the negative environmental consequences of interventions. Nature conservation is also intended to be used as a compensation instrument in other areas, e.g. in climate protection law as a compensation for CO2 emissions. Despite legal requirements and practised compensation, the ecological balance is still significantly affected. The accumulation of interventions leads to a further increase in extinction of species and climate catastrophes. Against this background, the question arises whether the practice and concept of compensation can sufficiently achieve its targets.

My doctoral project first investigates which damage can be neutralised by nature conservation measures as well as the limits of those compensations. Then, the systems for "obligatory compensation" will be examined and existing deficits identified. Furthermore, the systems for "voluntary compensation" will be analysed. Especially in the area of climate protection, there are voluntary compensation systems in which so-called compensation certificates are issued for nature conservation measures. The aim is to achieve a "neutral life cycle assessment" in order to be able to label services or goods as "environmentally friendly". Such voluntary compensation mechanisms are currently connected with high expectations of improving nature conservation and climate protection. The associated promise of compensability, i.e. the real compensation of environmentally damaging activities, is to be questioned.

The doctoral project aims to demonstrate both the inadequate implementation and the insufficiency of existing compensation systems. In a further step, improvements to the compensation approach will be analysed. With regard to the effectiveness of compensation, it is necessary to clarify whether nature conservation measures as a means of compensating different types of environmental interventions can be established in a spatially networked manner within the framework of bundled compensation areas and measures. In this way, a superordinate compensation system could be created for the purpose of a synergy effect. As a result, an ecologically sensible land organisation including multifunctional land use could be realised. This could contribute to the preservation of biodiversity.

Policy planning law as an instrument of sustainability transformation – An analysis using the example of the legal policy planning of climate protection, climate adaptation and biodiversity conservation

Marvin Neubauer - UFZ, Dr. Moritz Reese

The sustainability transformation is a complex matter. It involves numerous state and non-state actors and extends over a long period of time. The process is in constant interaction with other megatrends, such as digitalization or power shifts at the international level, as well as acute political or economic crises, such as gas shortages. If policymakers want to drive forward the sustainability transformation, they require an overarching plan for coherent action in such a complicated situation and over a period of 10, 20 or 30 years. The legal framework that produces such plans and regulates their implementation is known as policy planning law. The Federal Climate Change Act (KSG) is the most prominent example of a policy planning law. It includes greenhouse gas reduction pathways, climate protection and immediate action programs, an expert council responsible for monitoring planning, and a consideration requirement. In addition, the Federal Climate Adaptation Law (KAnG) is a policy planning law in the field of climate change adaptation. It will soon be followed by climate change adaptation laws and strategies at the state level. The Kunming-Montreal Global Biodiversity Framework (GBF) and the EU's Nature Restoration Law are also examples of policy planning efforts in biodiversity conservation. In the light of recent developments in climate protection, climate adaptation and biodiversity conservation, the PhD project examines the legal instrument of policy planning law. What are its mandatory and optional features? What specific functions does this instrument fulfill for the sustainability transformation? Through which mechanisms does it produce its effects? And what conflicts of interest and legal issues arise in its design? Based on the reference areas of policy planning legislation on climate protection, climate adaptation and biodiversity conservation, as well as related case law and dogmatics, the paper discusses the fundamental structures and problems of legal policy planning from a governance perspective. Additionally, it identifies and discusses overarching legal issues of policy planning law to contribute to a general dogmatics of policy planning law.