Germany
From SEA.unu.edu/wiki
SEA system of Germany
Information collected and posted here by Sumit Chakraborty (07075713@brookes.ac.uk), July 2008
Contents |
Introduction
The SEA (Directive 2001/42/EC) formally came into force in German law on 25th June 20051. The EIA Act was amended by the German parliament on 12th May 2005 and by the Bundesrat Chamber of the Länder) on 27th May 2005 to comply with the SEA directive requirements(Fischer, 2007: 112). Germany has had a long tradition of enacting state regulation to protect humans and their environment against hazardous industrial activities (Borzel, 2003: 62).
Landscape plans and programmes have traditionally, served as environmental reports in Germany, with embedded objectives for environmentally sustainable land use. These are prepared with a view to protect and develop the natural environment and landscapes, and include an extensive baseline description and the development of environmental aims and objectives (Fischer, 2007). As such, Fischer suggests that they probably meet the requirements of the EU SEA Directive to a larger extent than statutory and formally applied assessment types in vogue in other European countries.
Legal Context for Strategic Environmental Assessment (SEA) in Germany
German environmental legislation is a historically developed compilation of medium-specific, often highly detailed regulations at the federal and regional (Länder) level and constitutes one of the most complex and densely regulated legal systems of environmental protection in the world (Janicke and Weidner 1997: 138 in Borzel, 2003). However, there have been constant attempts since 1986 to reduce the complexity and increase the consistency of environment legislation (Appendix 3). While Germany still lacks a general framework for environmental legislation (Borzel, 2003), there is a clear statement of three major policy principles, in which German environmental protection is firmly anchored: precaution (Vorsorgeprinzip), the polluter pays (Verursacherprinzip) and cooperation (Kooperationsprinzip).
The EIA directive was ‘transposed’ into German law with the Umweltverträglichkeitsprüfung Gesetz (UVPG) in 1990 at federal level and similar laws for each state. In Germany, the obligation to carry out environmental assessments is regulated by the:
• The Environmental Impact Assessment Act (UVPG): • The Federal Mining Act (BBergG) and • The relevant ordinance on EIA (UVP-V Bergbau), • The Building Code (BauGB), the Federal Regional Planning Act (ROG), and • The law of the German Länder. As in many other fields of environmental policy, the implementation of the SEA Directive in Germany is faced with a special situation: the country’s federal structure (Bunge, 2005).
The Legal transposition of SEA Directive is secured by:
• Amended Federal Building Code from 24 June 20042 • Amended EIA act from 25 June 2005
Currently, SEA-type assessment is most widely applied in spatial/land use and transport planning. Over the past few years, there have been a number of SEA-related research projects,undertaken mainly by the Federal Environment Agency, particularly in the areas of federal transport planning and regional planning.
a. Spatial/land use planning:
The German spatial/land use planning system is modelled on the ‘counter-current principle’ wherein decisions of all administrative levels need to take into account the policy, plan or programme prepared by other levels (Fischer, 2007). The four main levels of spatial/land use planning hierarchy are the Federal, State (Länder), Regional and local levels (Appendix 1).
The environmental aspects of land use planning are mainly assessed through the landscape planning system based on the Federal Environmental Protection Act of 1976 (last amended 2002). The National Nature Conservation Law (Bundesnaturschutzgesetz) was first introduced in 1976, and laid down provisions for ‘landscape planning’ (Landschaftsplanung). Landscape programmes are prepared at the state level, landscape framework plans are prepared at the regional levels, landscape plans at the city level, and open space master plans are prepared at the neighbourhood levels. It is based on the precautionary principle, (first enunciated by the German Government in 1976), which stresses the advantage of prevention over remedial action in environment policy. The purpose of German landscape planning is to assess the existing and anticipated status of nature and landscape, including any resulting conflicts Scholles et al in Schmidt et al 2005).
The key aspects of the German landscape plan based SEA system (Fischer, 2007) are:
• Formal and enforceable EIA-based landscape plan/programme SEA requirements • Area wide SEA, parallel to land use planning • SEA identifies impacts, and is also supposed to enhance and develop the biophysical environment • Clear sequence in terms of avoiding, minimizing, mitigating and compensating impacts • Guidance through state ministries • Professional support through state environment agencies • High technical standard of surveys, preparation of maps and impact prediction techniques
The different kinds of landscape plans specify the aims and measures of nature preservation for the different levels and thus provide information on different environmental issues that have also to be considered in SEA (like flora, fauna, soil, water, air, climatic factors and landscape).
Conclusions:
• Landscape plans have performed the role of ‘state of the environment’ reports in a successful manner. In certain states Länder), local land use plans have also incorporated the potential impacts of developments through landscape plans in a detailed manner (Dalal et. al. 2005). However, the problem with local land use plans is that insufficient consideration is given to different possible alternatives. • Socioeconomic impacts of local land use plans remain largely unassessed Fischer (2005) due to the negligible influence of sustainable development strategies on spatial/land use planning. • At the regional level, current shortcomings include insufficient consideration to different possible alternatives and lack of public participation.
b. Transport Planning:
In Germany, a full SEA is not required for any of the relevant decision-making processes in the transport sector, but SEA-type assessments (or certain elements of an SEA) are applied at all administrative levels of decision-making in transport planning (Fischer et al) as can be seen from the figure in Appendix 2.
At the Federal level, Germany has a requirement for environmental risk evaluation of the Federal Traffic Infrastructure Plan, which has some objectives in common with those of an SEA, but cannot be equated fully to an SEA. The aim is to provide decision makers with broad information on the environmental risks of proposed projects (with a length of more than 10 km) to be taken into account alongside economic and other information. Elements of SEA are present within the actual practice.
Conclusions:
• Whilst assessment practice is rather widespread at the programme level, little is currently undertaken at policy and plan levels. Decision-making processes at present lack adequate opportunities for public participation
1 http://www.bmu.de/umweltvertraeglichkeitspruefung/neue_rechtsvorschriften/doc/5921.php 2 The Federal Building Code was again amended in 2006 (coming into force in January 2007). The main aim was to release these kinds of land-use plans (Bebauungspläne) from an SEA for which an SEA was not mandatory according to the SEA Directive.
Regulations and Guidance
A range of documents were available prior to the SEA Directive coming into force (Fisher 83: 2005 in Jones et al 2005) in the form of formal and informal guidance. The German guidance provisions are mainly based on:
• European law (in particular EIA Directive 337/85/EEC • SEA Directive 42/2001/EG and on • International law (in particular, Espoo Convention, SEA Protocol)
The following are the examples of guidance produced post implementation of SEA directive at various levels:
• Federal Level:
I. SEA and Landscape Planning (Strategische Umweltprüfung und Landschaftsplanung3) by Haaren, C. V.., Scholles, F., Ott, S., Myrzik, A. and Wulfert, K. (2005) developed for the Federal Agency for Nature Conservation (BfN) II. Chapter 2 of the Template Guidance to the amended Federal Building Code of 24 June 2004 deals with SEA in land use planning (Mustereinführungserlass zum Gesetz zur Anpassung des Baugesetzbuchs an EU-Richtlinien4). The guidance was developed by the “Building minister committee” (Bauministerkonferenz5) in 2004 and adopted by several Länder as guidance on the Länder level.
• Länder Level:
I. Berlin: Environmental Assessments – Berlin’s Guide for Urban and Landscape Planning (2006) (Umweltprüfungen – Berliner Leitfaden für die Stadt- und Landschaftsplanung6) deals with SEA and EIA.
II. Brandenburg: SEA for urban land use plans produced in accordance with the amended Federal Building Code 2004, Guidance for the procedure, methodology and decision making in land use planning (Umweltprüfung im Bauleitplanverfahren nach dem BauGB 2004, Handlungshinweise für das Verfahren, die Methodik und die Entscheidungsfindung in der Bauleitplanung )7.
III. Bremen: Guide for SEA in urban land use planning according to the Federal Building Code 2007 (2007) (Arbeitshilfe Umweltprüfung in der Bauleitplanung der Freien Hansestadt Bremen nach dem BauGB 2007)8
The Federal Ministry for the Environment (BMU) and the Federal Environment Agency (UBA) are presently in the process of developing an Umweltgesetzbuch (Environmental Code). The Environmental Code seeks to unify and simplify environmental law which up to now has largely been fragmented into several sectoral environmental laws. The first drafts were released in November 2007 and January 20089
3 http://www.bfn.de/fileadmin/MDB/documents/fe_sup_endbericht.pdf 4 http://www.is-argebau.de/Dokumente/4233856.pdf 5 working-group of the federal ministers/the ministers of the Länder responsible for urban affairs, building and housing 6 http://www.stadtentwicklung.berlin.de/umwelt/landschaftsplanung/uvp/download/uvp-leit-06.pdf http://www.stadtentwicklung.berlin.de/umwelt/landschaftsplanung/uvp/index_en.shtml 7 http://www.mir.brandenburg.de/cms/media.php/2239/Umweltpruefung_im_Bauleitplanverfahren.pdf 8 http://www.umwelt.bremen.de/buisy05/sixcms/media.php/13/Arbeitshilfe_Umweltpr%FCfung_HB_Bauleitplanung.pdf 9 http://www.bmu.de/umweltgesetzbuch/aktuell/40437.php
Principles of EIA/SEA:
In Germany, Environmental impact assessment (EIA) is integrated into the procedures for the authorisation of specific projects, especially industrial installations and infrastructure projects. Strategic environmental assessment (SEA), on the other hands is an assessment procedure to be carried out as part of the elaboration of specific public plans and programmes. Both EIA/SEA assessment procedures follow the same principles. In both, the impacts on the environment (including human beings) have to be investigated and described early on. On the basis of appropriate documentation, the public and authorities with environmental responsibilities may give their opinion on the project or plan/programme and the likely environmental impacts.
SEA stages in Germany
The following stages are applicable in the context of SEA in Germany as adapted from the amended Environmental Impact Assessment Act 2005 (Umweltverträglichkeitsprüfung Gesetz UVPG)10.
Stages in SEA Directive - Screening (Article 3 para. 5) Stages in SEA procedure in Germany - Not mandatory as part of the SEA Directive and can be decided on case-by-case basis or through law which has been dealt in Sections 14a, b, c and d.
Stages in SEA Directive - Scoping (Article 5 para. 4) Stages in SEA procedure in Germany - Section 14e Other legal precedence in the SEA (§ 14e Vorrang anderer Rechtsvorschriften bei der SUP). Section 14f Determination of the investigation framework (§ Festlegung des Untersuchungsrahmens)
Stages in SEA Directive - Environmental Report(Article 5 and Annex 1) Stages in SEA procedure in Germany - Section 14g Environmental Report (§ 14g Umweltbericht)
Stages in SEA Directive - Public Consultation (Article 6 and 7) Stages in SEA procedure in Germany - Section 14h Participation of other authorities (§ 14h Beteiligung anderer Behörden). Section 14i Public participation (§ 14i Beteiligung der Öffentlichkeit). Section 14j Cross-border authorities and public participation (§ 14j Grenzüberschreitende Behörden- und Öffentlichkeitsbeteiligung)
Stages in SEA Directive - Decision Making (Article 8)
Stages in SEA procedure in Germany - Section 14k Final evaluation and consideration (§ 14k Abschließende Bewertung und Berücksichtigung Section)
Stages in SEA Directive - Information on the Decision (Article 9) Stages in SEA procedure in Germany - Section 14l Publication of the decision on the adoption of the plan or programme (§ 14l Bekanntgabe der Entscheidung über die Annahme des Plans oder Programms Section)
Stages in SEA Directive - Monitoring (Article 10 para. 1) Stages in SEA procedure in Germany - Section 14m Monitoring (§ 14m Überwachung). Section 14n Joint Procedures (§ 14n Gemeinsame Verfahren Section). Section 14o SEA procedures in accordance with the federal state law (14o SUP-Verfahren nach Maßgabe des Landesrechts)
Case Studies
A. Regional Level: SEA report for the 3rd amendment (2006) of the Regional Plan for the region “Mittlerer Oberrhein”11
This is a SEA report for the regional plan of Mittlerer Oberrhein. The stages of scoping, preparation of the environmental report with alternatives, decision making and alternatives have been suitably dealt with within the report. However, the stage of public consultation finds no mention within the plan.
B. Draft SEA report (2006; 1st Public Consultation conducted in 2007) for the Regional Land Use Plan of the Frankfurt/Rhine-Main Conurbation Planning Association12
This draft SEA report for the Regional Land Use Plan which should be in force by the end of the decade sets out the framework for the development of the region until 2020. The major function of the Frankfurt/Rhine-Main Conurbation Planning Association is to carry out regional monitoring. The association systematically monitors and analyses all important structural data for the conurbation and the wider Frankfurt/Rhine-Main metropolitan region. All the major SEA stages seem to have been covered either through the development of the environmental report and consultation among authorities through the land use plan making process.
C. Regional Level: SEA report for a Regional Plan defining areas where wind turbine clusters (windfarms) will be allowed in the region “Uckermark-Barnim”1314
This SEA report is one of the latest which comprehensively covers most stages of the SEA as mentioned under the directive. It details the necessary alternatives and reasons for their selection. It is an useful document under the present SEA regime in Germany.
D. Local Level: SEA report for the 28th amendment (2006) of the Preparatory Land-Use Plan (Flächennutzungsplan) of Rosenheim
E. Local Level: Draft SEA report for a Land-Use Plan (Bebauungsplan) within the city of Düsseldorf15
11 http://www.region-karlsruhe.de/Regionalplan/Rastatt/Umweltbericht.pdf
12 ( An overview in English)
http://www.planungsverband.de/index.phtml?La=1&sNavID=1169.257&mNavID=1169.219&object=tx|1169.342.1|1169.2.1
(Draft SEA report)
http://www.planungsverband.de/index.phtml?mNavID=1169.219&sNavID=1169.257&La=1
13 Sachlicher Teilplan "Windnutzung, Rohstoffsicherung und -gewinnung", Entwurf 2007
14 http://www.uckermark-barnim.de/beteiligung/unterlagen/umweltbericht.pdf
15 http://www.duesseldorf.de/planung/bauleit/hafen/5275_022/b_5275_022.pdf
SEA report starts on p. 53
see also: http://www.duesseldorf.de/planung/bauleit/hafen/5275_022/index.shtml
Strengths and Weakness of the German SEA System
Strengths:
• Constitutionally guaranteed right of autonomous self-government of the municipalities is a major asset of the planning
system of Germany and for the success of the SEA directive at the local level. Has significantly enhanced the quality of
decision making at the local level.
• Formal and enforceable EIA-based landscape plan/programme SEA requirements (Fisher p 93,:2007). Landscape plan based SEA
model can effectively be developed as useful tool for decision making in Germany. However coverage needs to be improved at
national and state levels.
• SEA not only identifies impacts, but is also supposed to enhance and develop the bio-physical environment (Fisher p
93,:2007)
• Clear sequence in terms of avoiding, minimizing, mitigating and compensating impacts (Fisher p 93,:2007)
• Highly technical standard of surveys, preparation of maps and impact prediction techniques (Fisher p 93,:2007).
• Monitoring is a strong aspect of the German SEA practice.
Weakness:
• Germany is a federal state where, according to the German Basic Law, the principle of federalism is the key factor which
decides the relationship between the Bund (federal level) and the 16 Länder. The German Basic Law is responsible for
directing legislative, executive and judicial matters to the 16 Laender and only as an exception to the federal level. As
the SEA directive consists of many procedural provisions, Lander competences are highly affected (Schmidt et al 2005).
• One of the main problems facing especially Germany is the overlapping of national and European environmental and nature
conservation legislation. The variety of legislation and procedural regulations resulted in a permanently increasing loss
of acceptance among the public. There are complains about confusing planning and approval procedures taking much time and
money.
• Spatial policy plans at the State (Lander) level are not subject to formal SEA due to non requirement within the SEA
Directive. Hence, most decisions on basic alternatives and objectives will continue to be formulated without assessment of
their impacts and devoid of necessary participation (Fisher 83: 2005 in Jones et al 2005).
• The attitude towards European initiatives in the field of environmental and nature conservation legislation is more or
less defensive at present. That is sad as Germany would be able to spend many years of experience especially regarding the
issue of instruments.
'Appendix 3
Chronological order of environmental acts in Germany
• 1935 – Nature Conservation Act • 1969 – Federal government policy statement on the environment • 1974 – Federal Environment Agency established • 1975 – EIA procedures adopted • 1976 – Federal Nature Conservation Act; Conventions for the protection of the Rhine against pollution • 1980 – Amendment of Federal Nature Conservation Act; Brandt Commission • 1986 – Waste Avoidance and Management Act; gradual introduction of EIA • 1989 – Amendment of Federal Nature Conservation Act • 1990 – Environmental Impact Assessment (EIA) Act • 1991 – EIA Act extended to infrastructure projects • 1992 – EIA Act extended to industrial projects and adoption of environmental improvement programs for eastern Germany • 1997 – Kyoto Target 92 • 2005 – Strategic Environmental Assessment (SEA) Directive enforced
References:
1. Fischer T.B. (2007) Theory and practice of Strategic Environmental Assessment - Towards a more systematic approach London:
Earthscan.
2. Bunge, T. (2005) Implementing SEA in Germany, in Schmidt, M., Joao, E. and Albrecht, E. Implementing Strategic
Environmental Assessment New York: Springer: 99-115.
3. Fischer T.B. (2007) Germany, in Jones, C., Baker, M., Carter, J., Jay, S., Short, M. and Wood, C. Strategic Environmental
Assessment and land use planning-An international evaluation London: Earthscan: 79-94.
4. Borzel, T.A. (2003) Environmental Leaders and Laggards in Europe: why there is (not) a ‘Southern Problem’. Hampshire
Burlington: Ashgate.
5. Dalal-Clayton B. and Sadler B. Strategic environmental assessment: A sourcebook and reference guide to international
experience London : Earthscan: 19,80-82
Internet based research:
1. Press release by the German Federal Ministry for the Environment, Nature Conservation and Nuclear Safety
[WWW]URL:http://www.bmu.de/english/oecd_review/conclusions_and_recommendations/doc/3623.php [Accessed on 7th April, 2008]
2. Website of the Umweltbundesamt (Federal Environment Agency) regarding environmental law and SEA
[WWW]URL:http://www.umweltbundesamt.de/umweltrecht-e/uvp.htm [Accessed on 7th April, 2008]
3. Website of the Federal Office for Building and Regional Planning regarding incorporation of the SEA Directive into the
Federal Building Code [WWW]URL:http://www.bbr.bund.de/cln_005/nn_25994/EN/ResearchProgrammes/GeneralDepartmentalResearch/UrbanDevelopment/Case-By-CaseAssessment/01__Start.html [Accessed on 8th April, 2008]
4. International Institute for Environment and Development report on SEA in developed countries
[WWW]URL:www.iied.org/Gov/spa/documents/SEAbook/Chapter3_Oct04.pdf [Accessed on 11th April, 2008]
5. The implementation of Article 10 of the SEA Directive Directive in the German Federal Building Code
[WWW]URL:http://plannet.difu.de/2005/presentations/index.phtml [Accessed on 11th April, 2008]
