Local Level

According to Art. 28 GG, the local authorities have the right to self-administration.

Their environment-related tasks include mandatory and voluntary duties which they perform "in their own right" and others delegated to them by state governments or the Federal Government, e.g. the establishment of noise abatement plans under Art. 47a of the Federal Immission Control Act. A recent amendment to this law authorises local authorities to enact special regulations applicable during occurrences of photochemical smog.

Laws in other political areas also grant the local authorities the possibility of inde-pendent activities in the field of environmental policy. For example, urban traffic and transport lies within the planning responsibility of the local authorities and the Road Traffic Act (a federal law) gives them numerous additional possibilities for action, such as imposing instance speed limits, introducing environmental traffic management schemes, establishing pedestrian zones. In some cases there are conflicts between fed-eral and state authorities or between local authorities and state authorities, for example when measures taken by the local authorities could have an effect beyond their area, such as cases where restriction of traffic in one local authority might lead to heavy traffic problems in another. This kind of possible side effect is normally seen as a rea-son to take action against these measures. This limits the "real" scope for action of the local authorities considerably. But a certain ambivalence can also be noticed in the attitude of the local authorities: on the one hand, they insist formally on their inde-pendent scope for action, yet on the other hand, when trying to resolve local conflicts of interest, such as the resistance of business people to restrictions on private motor traffic because they fear loss of income, they sometimes urge the federal legislator to pass laws which take the pressure off them. But even in this highly controversial and complex area of politics the system of co-operative federalism makes its presence felt.

For example, early in 1993 the Federal Ministers for Traffic, Construction and the Environment in conjunction with colleagues from 16 federal states achieved consensus on a mutual traffic policy ("Nettetaler Resolutions") (UMWELT, BMU, No. 1/1993, p. 12).

The self-administrative responsibilities of the local authorities are subject to control of the legality of their actions only (e.g. construction, master plans, sewerage); dele-gated responsibilities are supervised for legality and content (and subject to directives by state authorities).¹⁹

There is no general rule as to how many environment-related departments should exist in local administration and what specific functions they should have. As a rule, several departments and authorities are responsible for various aspects within one local body, mostly depending on its size and problem structure. The larger local authorities (e.g. cities), but also associations of several smaller authorities (e.g. districts) have often established special environment departments. In general, the following environ-ment-related functions are fulfilled by separate authorities (Umweltbundesamt, 1984, p. 18-20):

Town planning office

Planning for real estate utilisation and building; partly traffic planning.

Urban development office

Preparation of urban development plans and specific plans affecting the area, including environmental protection aspects.

Regulatory office

Control functions for environmental protection, prosecution of violations of environmental protection regulations, even traffic planning in some cities. In towns not belonging to a district or towns which are the administrative centre of a district, it is often the lower authority responsible for licenses and control functions in environmental protection (in particular air quality control, noise prevention, waste disposal, nature and countryside protection).

Public health office

Control functions for environmental protection, in particular in the field of water supply, control of harmful substances, waste disposal, food control, radiation protection, co-operation in approval proceedings for environmental protection by evaluating the aspects relevant for health protection.

Office for chemical analyses

In particular in large cities, control measuring, and in the case of water and air pollution sampling, soil contamination, food control.

Veterinary office

Food control in towns not belonging to a county and in county towns.

Building office

In towns not belonging to a district and in major district towns, often lower authorities for licensing and control proceedings in the field of environmental protection unless the regulatory offices are responsible (in particular in case of air pollution control, noise prevention, protection of waters, waste disposal, nature and countryside protection). Traffic planning in some cities.

Public works office

19 For comprehensive information on environment-related by-laws issued by local authorities and a discussion of their legal powers see Lübbe-Wolff, 1993

Maintenance and extension of communal roads, partly traffic planning, in some towns not belonging to a district and in towns which are administrative centres of districts approval and control functions in the field of environmental protection (in particular control of air pollution, noise prevention, protection of waters). Unless special municipal sewage offices exist, also responsible for planning, building, maintenance and operation of sewage treatment plants.

Municipal sewage office

Planning, building, maintenance, and operation of urban sewage treatment plants.

Parks and gardens office

Planning, building, and maintenance of municipal parks, cemeteries, and forests.

Functions of a lower nature protection authority in some towns not belonging to a district and in towns which are administrative centres of a district.

Municipal cleansing department

Waste disposal (collection, transport, partly even storing of waste, in particular household refuse), road cleaning, snow removal. Licensing and control proceedings in the field of waste disposal in some towns not belonging to a district and in towns which are administrative centres of a district.

Generally, it can be said that the relatively high degree of autonomy which the local authorities enjoyed in the time immediately after the Second World War, both in the field of environmental protection and other areas, gradually diminished over the years (see Norton 1994, p. 231). The principal reasons for this included (1) legal measures implemented as part of a reform of the administration which were economically moti-vated. To improve state planning and control of economic and investment policy, the state (at Federal level) widely extended its previously very tightly constrained scope for financial intervention in local authority affairs, and therefore for control over them;

(2) the reform of the local authority boundaries (Gebietsreform), which was part of the local authority reforms of the sixties and seventies, and of their responsibilities in which the number of local authorities was reduced by nearly two-thirds. This caused a de facto shift of responsibilities to state institutions instead of the expansion of the autonomy of the local authorities which had originally been announced as part of the boundary reforms.

In the field of environmental protection there was a similar centralisation giving more power to the state. Decisive in this were the numerous deficits in local authority environmental policy (for example, in waste management) during the sixties and sev-enties. There was talk of the "failure of many local authorities in the area of environ-mental policy" and also of the environenviron-mental damage and problems caused by the local authorities themselves, by construction projects, for example. In this context "count-less" measures at federal level (including guidelines, regulations, recommendations—

they were known as a "deluge of standards") increased both the breadth (areas of responsibility) and the depth (degree of detail) of control by state environmental regulations so that the problem turned into one of implementation due to the "over-regulation" and generally the flexibility and efficiency of the local environment authorities was severely reduced. The real development in the extent of the local authorities' area of competence is, however, in stark contradiction to the fundamental

statements of dogma made in the constitution about the autonomy of the local authori-ties.²⁰

The extent of the local authorities' autonomy is also restricted by their sources of finances and has similarly shrunk over the years. Actually, under the constitution, local authorities have a vested right to "appropriate financing". This is meant to correspond to the responsibilities allotted to them. The principal duty to ensure appropriate financ-ing lies with the states.

The most important source of financing for the local authorities is taxes. The local authorities have a defined "tax mandate" which is specified in the constitution (Art.

104a ff.). Their most important autonomous tax source is corporation tax, the level of which may be determined by the local authorities (Art. 106, section 6, GG). This often results in pre-programmed conflicts with environmental protection (e.g. by local authorities operating a "lax" environmental protection policy in order to attract busi-nesses and thus increase their tax revenue). The federal authorities, state authorities and local authorities also receive a fixed proportion of the other taxes raised at central level (income tax, corporation tax and value added tax). There is also a re-apportioning of finances amongst the states, organised by central government, to try to balance out major financial differentials between the individual states which still exist despite the regular tax allocations. The fundamental aim of this is to ensure the "uniform standard of living" throughout Germany which is required by the constitution.

Apart from these largely fixed sources of finance (which can therefore be used only to a small degree by the central or state governments as an instrument of control for their own political aims), the local authorities also receive other general and specific (i.e. tied to a particular use) state transfers. The latter can be made, for example, for particular heavy burdens on the local authorities due to the allocation of responsibility normally pertaining to the central or state government, such as supervisory tasks in the field of environmental protection. The local authorities are supposed to be reimbursed for these "commissioned responsibilities", but this is normally not fully carried out.

The state authorities use their discretion here and their power over the local authorities and in doing so sometimes cause them great financial difficulties. At present many local authorities are in deep debt, the financial situation of the local authorities has steadily deteriorated throughout the nineties; this is above all due to local authority spending on social benefits, particularly income support. In the field of the environ-ment, too, in which the local authorities have their own specific responsibilities and duties, they are often dependent on state subsidies (in building sewage treatment plants, for example). In Germany we often talk of "golden reins." This means that the local authorities lose their scope for action, including their power to make decisions about the type of environmental technology they wish to use.

20 On disputes about competence between local authorities and state institutions—which occur frequently in the field of planning—and on judgement practice of the courts on this and the corresponding dogma under constitutional law see Haaß, 1993 which includes numerous bibliographical references.

4.5 Co-Ordination of Environmental Protection Policy in Germany