Legislative Power

Germany is a federal republic. According to the basic constitutional principle, legisla-tive power lies with the states, unless the constitution explicitly assigns it to the Fed-eral Government (Art. 30, 70 GG). The present German Constitution divides the legis-lative authority between the Federal Government and the 16 states (eleven "old", i.e.

Western, and five "new", i.e. Eastern states) in three ways: in some (rare) areas, the Federal Government has exclusive jurisdiction, in all others it has concurrent or

"framework" jurisdiction. Since the constitutional amendments of 1971 and 1972, the Federal Government has the following environment-related powers (only the most important ones are listed here):

• Exclusive Jurisdiction (Art. 73 GG):

only for areas relating indirectly to environmental protection: federal railways, air traffic, statistics, international affairs, bilateral and multilateral agreements.

• Concurrent (competitive) Jurisdiction (Art. 74) for:

- some aspects of commercial, civil and criminal law - noise abatement

- nuclear energy (siting, radiation protection) - waste management

- air pollution control - poisonous substances

- plant protection - animal protection - coast protection

- road traffic, highway construction

• Framework jurisdiction (Art. 75) for:

- nature protection and hunting - regional (land use) planning - water supply and protection¹⁸

The Federal Government is also granted jurisdiction for general administrative direc-tives and regulations issued to implement federal statutes, but only if there is a given explicit authorisation in the several environment-related laws. This, however, needs the consent of the Upper House, which is true of all laws that concern genuine state responsibilities, such as implementation and enforcement.

Historically, the preponderance of environmental legislation has been at the state level. The regulations of some states have provided models for federal regulations. In some rare, though important, cases this has led to certain implementation problems. A typical example is the Federal Immission Control Act Act 1974 which was heavily influenced by North-Rhine Westphalia's Immission Control Act of 1962. At that time, North-Rhine Westphalia was not only the most polluted state in the country, it also was the one most experienced in environmental policy. As that law was designed to fit the state's very specific problem structure (a highly industrialised and urbanised region with particular types of pollutants from specific sources), it was not so well-suited to the sometimes quite different problem structures of some other states. Therefore,

"implementation shortfalls" were "pre-programmed" by the federal legislation and it took some time to modify and amend the law and its ensuing regulations to make it more effective.

Since the early 1970s an enormous bulk of laws, regulations, decrees, guidelines etc. have been issued at federal level aiming at pollution control and environmental protection. Especially after the 1971 and 1972 amendments to the constitution, the Federal Government has definitely been the dominating law-making power. This does not mean, however, that the states have shut down their law-making machinery. On the contrary: almost all federal laws and ordinances have been translated into correspond-ing state laws. Furthermore, the states enact regulations in areas not covered by federal legislation, adjust federal laws to their specific needs or use their powers to specify federal legislation enacted under "framework" competence. Finally, the states can also issue any regulations (organisational, procedural, financial rules, etc.) necessary for their implementation and enforcement duties.

Concerning the items listed in the constitution under concurrent powers, the Federal Government has full legislative power, i.e. it can enact highly detailed laws. Further-more, it is, as a rule, authorised to issue ordinances and administrative decrees for a specific act, although only if the act in question explicitly provides for this. Even in the

18 Several initiatives to establish concurrent jurisdiction for the water and nature protection law have failed because of the opposition from the Upper House. According to Art. 79, sec. 2 GG, an amendment changing the constitution requires a two-thirds majority in both houses.

case of concurrent powers the states retain legislative power and, in fact, use it, espe-cially when the Federal Government fails to do so.

In those areas where the Federal Government has only framework competence, it is in principle only allowed to enact statutes which lay down general principles to be

"filled in" by the states with detailed legislation. But here, too, the Federal Government is sometimes authorised to issue detailed provisions in ordinances and general adminis-trative decrees (e.g. the Water Management Act).

Administrative decrees and ordinances play an important part in specifying the complicated content of a law. They mostly concern material and procedural aspects.

Sometimes they even establish the very core of a policy. e.g. in air pollution control policy, the First General Administrative Decree (Technical Instructions for Maintain-ing Air Purity = Technische Anleitung Luft) with standards for ambient air quality and emissions limits; the Ninth Ordinance for Implementation (Ordinance on Principles for Licensing Procedures); and the 13th Ordinance for Implementation (Ordinance on Large Firing Installations). The latter one was, as mentioned above, the decisive instrument that made Germany (aside from Japan) the world-leader in SO2 and NO2 reduction at large stationary sources. It should be noted that only the ordinances func-tion like laws. The "mother law" determines which institufunc-tion is allowed to issue an ordinance. This may be the Federal Government, a federal ministry, or a state govern-ment. For almost all ordinances consent of the Upper House, not the Bundestag, is required.

Administrative decrees serve as a binding guideline only for public authorities, not the general public, the addressees or the courts. Therefore, they are usually open to interpretation by the courts as to whether or not they fulfil the statutory (and constitu-tional) requirements. However, some federal court decisions have narrowed this scope for interpretation for the lower courts. In a widely observed case of conflict, for example, the Federal Administrative Court held (in the so-called Voerde decision) that ambient air quality standards must also be considered by the courts as the state of pre-sent scientific knowledge ("antizipierte Sachverständigengutachten"). Consequently, they are to a high degree binding for courts and open to interpretation only if the courts can prove that certain substantial or procedural preconditions for standard-setting (i.e., fixing ambient air quality standards) are not fulfilled.

The role of administrative decrees in civil court cases is even more complicated. In civil litigation they play a less important role than in administrative court cases, but they also have an important referential function.

Local authorities have only limited legislative powers (to issue so-called by-laws), derived from Art. 28, sec. 2 of the federal constitution. However, it follows from the federal principle of the constitution that local bodies are principally allowed to legis-late in matters for which the state in which the local authority is located has been granted legislative power and if the tasks are strictly confined to their administrative area and have not been delegated by law to the state or Federal Government. A pre-condition for issuing by-laws is a general or specified (i.e. case-by-case) authorisation from the state. It is generally not legally mandatory to have (correctly issued) by-laws authorised by the state government. However, for preventive reasons and to ensure

consistency of the legal order, some sort of supervision has been established, varying from state to state, e.g. an obligation to request authorisation from the state government or merely the duty to inform it. Almost all local bodies, especially the larger ones, have issued by-laws directly or indirectly concerning environmental matters.