Developmental and Environmental Responsibilities of the 'Rechtsstaat'

kloepfer m and reinert s "umweltfragen als verteilungsprobleme in rechtlicher uvpg - gesetz über die umweltverträglichkeitsprüfung eichenberger gesetzgebung im rechtsstaat 40 ff 68 ff the european court of justice, of 19.03.1991, i ecr 1223, 1269 par 41 about telecommunication oecd - organisation for economic co-operation and development 37/89 münchen 1993) it is therefore no easy challenge for a legal scholar to clarify how a rechtsstaat could umweltstaat (economica-verlag bonn 1995) 85 should it be possible to define them, are often in opposition to political ff principle which is not based upon a binding legal source or on actual economic relationships. this environmental law from stockholm to rio: back to the future?" in sands p (ed) bverfg 7, 89 (92 f) 32/89 taking the state of affairs with regard to the current developments on an economic and london 1995) 319 all these examples relate to basic conditions of justice. should these norms of justice be should be in conformity with the norms of the constitution and controlled by the (german) sciences), depends on causal effects which the human being can recognise but which he cannot international law only enjoy precedence over real risks of damage only under circumstances when system. the key to this is to be found in the concept of the "transfer of technology" from peters 1995 nvwz 555 peters hj "art 20a - die neue staatszielbestimmung des prof j wolf per/pelj 1999(2)2 premises departs from the assumption that there is no private ownership of natural powers is not part of governmental action and should it be attributed to the governmental development in state politics. in order to give effect to the precautionary principle, the uncovered flank. how difficult it is to close such an uncovered flank, has been well illustrated by the eine umweltgrundrechts (schmidt berlin 1975) 93 directives of european community law treat the precautionary principle as a procedural 31 for a direct contribution to a solution for environmental protection and development issues effectively facilitate sustainable development. in a certain sense, one feels like the account, does not correspond to reality. if this misconception is not corrected, the rechtsstaat will problems should, as far as possible, be based on an international consensus. address the problem of environmental risks and potential damages according to the of safety standards and their implementation with regard to the risk of accidents in technical been endorsed. according to a statutory amendment of 1994 (bgbl i 2457), german civil law protection confronting a rechtsstaat with regard to technological and industrial from other regulatory measures. at the stage of formulating the quality standards, the initial (campus frankfurt 1989) 280 41 compare the licensing procedure in terms of the nuclear plant act § 7; compare also the the legal flexibility of planning law distinguishes these environmental quality standards has deliberately not been made subject to any constitutional constraints with regard to its prof j wolf per/pelj 1999(2)2 brundtland our common future 26 38 gethmann, kloepfer and reinert verteilungsgerechtigkeit (fn 37). and is still applicable, bt drs vi/2710. using force, including the prohibition of unjust enrichment. the legal responsibility constitutional basis for commercial activity and the limits thereof are to be found in the fundamental first, does the uncertainty with regard to the risk lead to an unlawful hazardous risk when should the industry indeed meet these orderly market agreements or unilateral declarations stober wirtschaftsverwaltungsrecht 63 ff see lübbe 1996 zeitschrift für umweltrecht 64. in environmental law the tables are turned: the relationship between legally guaranteed development, the law relating to environmental protection is not of a regulatory but of a "natural sources of life" in the official translation. "resources" would perhaps have been a more 5 expectations for stimulating the economy. the higher the unemployment levels, the more problem in a material sense by regulating the specific risk of a single plant in relationship to appropriate translation to capture the spirit of the concept. stober r wirtschaftsverwaltungsrecht 10th ed (kohlhammer stuttgart 1996) 458 namely the right to general personal freedom (article 2 section 1 gg) on the basis of development. 38 confronted today can be traced back to the false belief of lawyers that the norms of presupposes an economic system free from state interference, the relationship between the development of distributive procedures. schmidt r Öffentliches wirtschaftsrecht (springer berlin 1990) 553 from the premises that the executive is bound by parliamentary legislation, 48 in terms of art 20 s 1 gg. constitutional framework which ensures that all essential developments in regard to scientific or expert knowledge. lately specific industries often take the initiative themselves the economic, employment and social welfare legislation to fit its 33 44/89 the environmental risk in legal terms should be taken into account. if such an · if the state tolerates crime and no longer exercises policing powers to prevent it or to 38/89 adjudication (art 20 s 3 gg). this constitutional order is the warranty of the rechtsstaat system. 21 lersner vorsorgeprinzip 2703 ff reversed. in this instance, planning law is more predominant. that the basic premises of free market capitalism is endorsed unqualifiedly by principle 12 environmental quality standards are not only calculated by the state but also by those 9 stern staatsrecht 767 ff stern k das staatsrecht der bundesrepublik deutschland: germany. bibliography 2 sustainable development: global reconciliation of environmental protection 39/89 26/89 58/89 with regard to the central issue of balancing economic development with environmental global scale would be unavoidable. to put it differently, the industrialised nations and the at first sight, the outcome of the rio conference for international environmental law or both of them. thus one can no longer public-law critical values stipulated by the federal emissions control act and other environmental this idea unifies both aspects of environmental harm caused by these processes is reduced in order to actively promote one carefully consider the degree of the risk? measures is modified from a standard aimed at the prevention of damages to a standard september - 3. oktober 1981" in eichenberger k novak r and kloepfer m prof j wolf per/pelj 1999(2)2 degradation. trade policy measures for environmental purposes should not 2nd ed (beck münchen 1984) 1110 bverfg (mohr tübingen 1994) 515 lerche Übermaß und verfassung 32 · an irrefutable interrelationship exits between environmental protection and economic 62 for a discussion, see bund sachstandsbericht; sru umweltgutachten 129 ff. 1 on the outcome of the rio conference see johnston the earth summit. air pollution act of 1974 relate a specific amount of emissions which is dangerous or detrimental to the environment emissions, for example, hardly cause an environmental risk. but all car drivers together do environment already at the stage before an operating license is issued. 29 see kimminich umweltschutzes 12. environmental sources fall between two stools. wochenschrift 2913-2922 in other governance: an introductory view" in ginther k ea (eds) sustainable development 57 on the law of hazard prevention, see di fabio risikoentscheidungen 35 ff. 23 manner as it would when it follows an absolute laissezfaire policy with regard to such basis of the precautionary principle are very different in nature. we shall focus on two 50/89 technological level into account, the responsibility for environmental protection prof j wolf per/pelj 1999(2)2 20 beyerlin and ehrmann 1997 umwelt- und planungsrecht 356-361 hohmann h "ergebnisse des erdgipfels von rio" 1993 nvwz 311-319 nur - natur und recht secondly, with regard to the issue of cost distribution there is no other option available in - with any agreed certainty. rechtsstaat for sustainable development. 16 the thorough study of kunig rechtsstaatsprinzip 312 ff is an exception to the rule. kunig analyses which should also be acceptable from an environmental point of view? this inquiry causes circumstances, for example when the measures serve innovative technological could probably be described as the 53 murswiek kommentierung zu art 20a gg rn 63. intercourse without regulating commercial activities as such. the planning of trade policy 39 dangerous substances, the planned commercial utilisation should be subject to prior i suggest that we focus on the law of the federal republic of the decisive question is: what is justice in terms of the rechtsstaat? what are the general bimschg perspective, the state is held environmentally responsible due to the fact that it over many years contributed to clarify the constitutional basis of the economic system nor did they lead to the legal in essence it boils down to the administrative practice in germany to lay down specific technical standards for the and good governance (nijhoff dordrecht 1995) 483 federal emissions control act (bundes-immissionsschutzgesetz) (bgbl i 721) (bgbl i 880) however, a central difficulty which has not been addressed and not yet solved by this humblot berlin 1997) 817 organs of state authority to refrain from unjustifiably encroaching upon these rights and freedoms, individuals in environmental-law cases would have been improved to a large extent. those implicitly based on the legal assumption that there is no inconsistency between the 39 kloepfer and reinert umweltfragen 43, 45 (fn 37). namely not any generally applicable rules exist with regard to the influence umweltgutachten (1994) swimming purposes. the prerequisite is that the water may not contain any detrimental legislation also forms part of environmental protection law. during the mid-1980's a debate ensued whether environmental protection should be 30 55 prof j wolf per/pelj 1999(2)2 the second difficulty concerns economic development. especially in a rechtsstaat which 1279 prof j wolf per/pelj 1999(2)2 52 regarding exceptions in cases of extremely high risks, e.g. the use of nuclear energy, see footnote the decision of the federal constitutional court in the kalkar matter (bverfg 49, 89 ff). in contrast, bt-drs individual state governments. only the state governments are endowed with the powers of economic planning, on the other. - generally applicable rules pertaining to the 53 prof j wolf per/pelj 1999(2)2 (goldmann münchen 1974) an environmentally friendly alternative. protect the environment. 3 definition in wced our common future 43. approaches, that is the procedural approach and the approach of setting specific technical 64 in terms of european environmental law, the environmental impact assessment should also apply stage of planning it. in other words, the precautionary principle not only has a state participation in providing services or the number of state enterprises participating in frenz europäisches umweltrecht 1-75 be adopted in european law in the near future because a written catalogue of fundamental prof j wolf per/pelj 1999(2)2 14 not only risk an increase of legal conflict, but chaos. we know today that chaos is also procedure is that of defining specific precautionary standards. it has been left to consideration of economic developments. in other words, both eichenberger k "gesetzgebung im rechtsstaat: berichte und diskussionen auf der in terms of german law, the most important precautionary regulation can be found in the air in the european union, bverfg 65, 283 (290) european court of justice of 19.03.1991 i ecr 1223, 1269 state already has to scrutinise the environmental impact of its economic policy at the by the maastricht treaty in 1992. legal protection prior to the new regulation in terms of within the sphere of its territorial and personal jurisdiction. the inherent conflict between statutes and environmental protection law though: prof j wolf per/pelj 1999(2)2 and development would then have a constitutional basis, see eg kloepfer bonner kommentar rn 35 ff. however, 56/89 potential conflicts between the secondly, is the risk connected with the 42 the boundaries of illegality relating to risk without causing damage have not been clearly defined. neue juristische wochenschrift 2915; tettinger art 12 gg rn 179. of table tennis. the protection of the natural sources of life is stipulated explicitly in the critically considered this was also the gist of the debate on extending the german bill of protection which are in conformity with the rechtsstaat principle, international economic law has an standard is that local authorities may determine whether water is clean enough for global conceptual framework at the rio conference on the environment and development only measures falling within the scope of planning law are suitable to generally reduce 1 the risk potential of certain kinds of technology (for example nuclear energy plants uvp-rl 85/337/ewg protection and economic development. because no consensus could be reached on the prof j wolf per/pelj 1999(2)2 52/89 economic system that would lead to economic growth and sustainable open-ended manner in which the constitutions treat economic policy making. 49 bernsdorff 1997 nur 332; schink 1997 dÖv 323. can be summarised with the following remarks: been recognised by all states. contents. wolf j die haftung der staaten für privatpersonen nach völkerrecht (duncker und which challenges confront the rechtsstaat when we focus on economic development the possibility of structural conflicts between the capitalistic free market system and the oberrath 1996 umweltrecht 17 oberrath jd 1996 umweltrecht 17 abbreviations 41/89 three issues should be clarified during such an examination. epiney a umweltrecht in der europäischen union: [primärrechtliche grundlagen; hohmann 1993 nvwz 311-319 prof j wolf per/pelj 1999(2)2 constitute an integral part of the development process and cannot be protection is not only directed at the state. fürst ea umweltqualitätsziele öffentlichen recht, insbesondere am beispiel der arzneimittelüberwachung the constitutions of the oecd countries deliberately lersner v "vorsorgeprinzip" in kimminich o (ed) handwörterbuch des umweltrechts: disregarded. first, the key problem remains that we are not yet in a position to legally inevitably have to be adapted in due course. in other words, the belief that a state legislature could binding for all member states. therefore, the open-ended manner in which the german constitution wced our common future 43 extended and intensified - both in the maastricht and the amsterdam treaties. however, reasonableness and the proportionality rule cannot be applied in the usual way. this that clear-cut. this is due to the typical factor of uncertainty associated with environmental prof j wolf per/pelj 1999(2)2 prof j wolf per/pelj 1999(2)2 de waart good governance 1 ff; handl specific obligations 37 ff; pallemaerts international weimar r and schimikowski p grundzüge des wirtschaftsrechts 2nd ed (vahlen with regard to environmental conservation is existential in the most basic sense. it effects of this economic system on the environment are compatible with the principles of a regulate economic development. however, with a too extensive regulation of economic prof j wolf per/pelj 1999(2)2 kloepfer grundrecht auf umweltschutz kloepfer m zum grundrecht auf umweltschutz: consequence will be that at a certain stage the closed-circuit commercial system will regulation, evolving field of law called "environmental law". the global environmental protection, namely environmental protection by means of the 4 if one consider the developments in the aftermath of the rio conference, definitions which should 20 s 2 gg), the legality of administrative action as well as the binding force of law with regard to 51 agenda 21 or the "earth's action plan" is also not a document which is legally environmental impact assessment act (gesetz über die umweltverträglichkeitsprüfung) of on the environmental impact assessment. 54/89 thirdly, the states participating in the rio conference arrived at the conclusion that legal 46 new and independent field of law. according to this definition, environmental law encompasses all ipsen staatsorganisationsrecht rn 648 ff ipsen j staatsrecht i (staatsorganisationsrecht) lerche p Übermaß und verfassung: zur bindung des gesetzgebers an die the state can best be highlighted with a few comments on the rechtsstaat, economic laws as a basis. environmental protection by means of binding planning directives or in the form of a protection, the legal implementation of sustainable development is in the hands of the a quality standard. principle, the legislature is only required to present a concept for a legislative programme to 30 a more restrictive approach is endorsed by kloepfer umweltrecht § 1 rn 24. returned to the legislature. in other words, the constitutional protection of the 5.3 open-ended constitutional programme issn 1727-3781 which are based on the consensus of every member state are often not observed anymore when a between state responsibility for economic development on the one hand, and environmental international free prof j wolf per/pelj 1999(2)2 resources and that market-related prices for natural resources cannot be determined. it is prof j wolf per/pelj 1999(2)2 protection, but also has the duty to regulate environmental harm which has already the industrialised countries to the developing countries. certain sense the state goals which are formulated by article 20a gg resemble the playing namely that no constitutional proscription of a specific economic system exists and that the between environmental protection and economic development is that the costs due to conditions and the degree of state interference which might be acceptable to regulate the ... community policy on the environment shall ... be based on the precautionary neumann fl the rule of law -political theory and the legal system in modern 27/89 di fabio u "gefahr, vorsorge, risiko" 1996 jura 572 53/89 that these criteria are unsuitable to contribute to resolving the potentially explosive relationship art(s) - article(s) undertaking must be established for purposes of an environmental impact assessment. binswanger 1995 zfu 1-19 prof j wolf per/pelj 1999(2)2 nvwz - neue zeitschrift für verwaltungsrecht 22 does not endorse an "abstract" notion of the concept of the rechtsstaat. di fabio 1996 jura 572 ff implementation of the precautionary rule is to find a key for attributing the costs for prof j wolf per/pelj 1999(2)2 should parliament have taken this way, the legal protection for 58 di fabio risikoentscheidungen 73, 94. environmental protection, sometimes even in the form of unilateral self-binding maitland constitutional history of england 270 ff and chance or coincidence. life according to the rules of chaos is the exact opposite of life implementation of the specified precautionary standard, the legal consequences are analysis would lead to the conclusion that the detrimental consequences in the case systematic point of view, the reasons can be found in the changing relationship of the state vis-á-vis bundesverfassungsgericht this was also clear from the the standards are not that strict when it comes to gene-technological research. prof j wolf per/pelj 1999(2)2 definition does, however, take cognisance of two aspects which have legal implications. the through the decisions taken by the executive and the courts. the exercise of legislative 56 lersner vorsorgeprinzip 2703 ff. is the aim to reduce harmful emissions into the air by half at a specific future date or to integral to this concept: the guarantee of human rights, the separation of state powers and true with regard to harmful or dangerous emissions which pollute the air, water and soil. 2.2 the legal consequences of the rio conference prof dr joachim wolf. society (berg leamington spa 1986) 349 the reason for this is that and industrial civilisation in order to secure our natural living conditions.27 environmental in the absence of such a distinction, neither indispensable natural often these requirements are not fulfilled. in such a case, multilateral action and multilateral and criminal law and not vice versa40 grundgesetzes" 1995 nvwz 555 greening international law: politics of international environmental law (earthscan world-wide basis to such an extent that the ecological side-effects are tempered and the 43 art 130(r-t) ec treaty. the laws of nature is nowhere better illustrated than in the case of environmental law. should the to its responsibility for sustainable development. this is a characteristic feature of kunig rechtsstaatsprinzip 312 ff stand in a specific relationship to the law through which the principles are 361 economic premises as well as the long-term economic goals can be taken into account. considered in isolation from it. prof j wolf per/pelj 1999(2)2 definition relates to human activity in a very general and all-embracing manner. it is an ethical for the same reason there are no generally binding limitations to the realisation of the population living in that area will negate the prohibition of the use of exact contents of such a fundamental right its listing in the bill of rights has been thwarted. with regard to local and state planning law - see ec directive 85/337. 50 some academics argue that art 20a gg at the very least constitute a general prohibition of a this discussion shows that the traditional distinction between economic goods and effective legal protection. - programme which ensures an acceptable quality standard. an example of such a quality protection, on the other. environmental quality standards which found their way into german law via european law. drawn. even the inquiry why environmental law developed as a new branch of law and distinguished from the sum of existing parliamentary statutes. the statutes made by "concrete" danger is required to be of an immediate nature in the sense that an limitation of such polluting emissions. this provision is intended to solve the precautionary 13 high to be controlled only in terms of the standards invoked by police authorities. possibility of danger of damage. this latter condition is referred to as a "risk". risk in this bund sachstandsbericht world commission on environment and development our common future (1987) brundtland our common future (report) which provided the conceptual framework for the rio- national perspective. unresolved difficulties for three reasons. firstly, the concept of the rechtsstaat has not yet their way into the european community treaty state takes decisions about its economic system in a sovereign manner and shapes scope of the precautionary measures and who should carry the costs of it? declaration organs to act in a specific manner. the contents of this planning goal has not been defined at a uvp-rl 85/337/ewg richtlinie des rates über die umweltverträglichkeitsprüfung contrast to the fundamental rights which regulate state competencies in a negative sense, requiring 36 bverfg 50, 290-381, (338), (decision of the federal constitutional court of 01.03.1979). see also to a large extent the degree of the environmental degradation with which we are requirements for effective international environmental protection are also barely addressed in the authorities is confronted differs in two important respects from risks that are covered by causing environmental harm on the basis of the quality goals they voluntarily set for the test of reasonableness and the principle of proportionality. in contrast to the traditional risks and jeopardy. in the context of the precautionary principle, therefore, the test of 31/89 none of these measures directly contribute to resolve the dilemma of environmental 35/89 legislature adopt parliamentary legislation for environmental protection which ignores or negates the 3 the level of state implementation hufen f "berufsfreiheit - erinnerung an ein grundrecht" 1994 neue juristische being unanimous on the issue that problems relating to global environmental 52 prof j wolf per/pelj 1999(2)2 fccc (un) framework convention on climate change of 15 may 1992 a/ac 237/18 when we consider the topic of developmental and environmental as well. these measures have twice been in other words, the state has the duty to invoke measures which could help to the most important difficulty facing a rechtsstaat when it comes to the realisation of basis of ordinary people is destroyed and simultaneously also their ability to agricultural products and industrial goods in the gatt as well as in the law relating to the berlin 1982) 355 5 see rio declaration 1992; also in johnston the earth summit 117 ff. 31 see the directive on environmental policy of the federal government which was adopted in 1971 prof j wolf per/pelj 1999(2)2 environmental protection. what is of importance for the relation declarations. this form of quality standard realisation has gained in importance. however, constitutional history 350 ff; maitland constitutional history of england 270 ff; blackstone laws of utilisation is reduced insofar that it becomes legally admissible? thirdly, should the · in order to influence commercial activities and consumer attitudes, a clear tettinger pj "art 12" in sachs m (ed) grundgesetz: kommentar 2nd ed (beck fundamental right on healthy environmental sources for everybody has often been restrictions to private property and the administrative treatment of jeopardy to people's - rights. 45 permit activities which are counterproductive to environmental protection and endanger our the most important obstacle which currently stands in the way of effective constitutional the limitation of the most general fundamental right in terms of the german constitution, allowing the state to directly manipulate economic processes. 5. possible solutions at a constitutional level scrutiny by the courts. the usual manifestation of a concrete danger with which the police "sustainable development" lies in the structural differences between the constitutional order england 160; dicey law of the constitution 39. tightening of the criteria which enable state interference in commercial activities. it seems, therefore, ginter and de waart good governance 1 ff durch die gesetzgebung und nach maßgabe von gesetz und recht durch die vollziehende gewalt competent state organs should act in accordance with national law. collective measures in terms of 54 murswiek kommentierung zu art 20a gg rn 60. gemeinschafliches sekundärrecht] (heyman köln 1997) part i environment often falls flat because there is no statutory basis authorising the state to generationen die natürlichen lebensgrundlagen im rahmen der verfassungsmäßigen ordnung 5.1 no environmental fundamental right gethmann cf kloepfer m and reinert s (eds) verteilungsgerechtigkeit im which may be exercised by any of these states on their economy. not even the extent of economic growth. although these criteria are in principle not subject to critique, they have not 4 35 kloepfer umweltrecht § 5 rn 5; erbguth rechtssystematische grundfragen 124; hoppe and both german environmental law and the first three environmental programmes of the european economic sense. the programme of multilateral action and environmental protection measures 19 zukunftsfähiges deutschland (1994) the constitutional limits to such - would have been sufficient merely to establish that ecological damage took place in the 49/89 43 · should there be uncertainty about the ecological risks related to technical plants and in the constitution (grundgesetz) which formally stipulates environmental protection as a it was more a question of the industrial nations and the developing countries 42 taswell-langmead english constitutional history 350 ff a market where individual freedoms are guaranteed to all participants in the market, especially with what it is that distinguishes it from other fields of law very much remain in the dark. there in both a legal and an economic sense. it also sets limits to legal measures for the (risikoverursachung) without causing damage (schadensverursachung), legal protection of prof j wolf per/pelj 1999(2)2 walker sl environmental protection versus trade liberalization: finding the balance; schmidt-assmann rechtsstaat § 24 17 disparities in standards of living between north and south by economic development. in the environment carries the responsibility for it. verfassungsrecht der bundesrepublik deutschland (mohr tübingen 1986) 524 40/89 environmental risks are permitted because this would have a detrimental effect on the the outcome of what was decided at the rio conference could be summarised by three 24 rn 4. the rechtsstaat, should take more cognisance of the law of nature. in other words, if a the manner in which it is structured and how it acts through its organs. commerce. economic development based on high technology and which is based upon legislative or regard to the free movement of goods under conditions of fair competition compare the decision of themselves. conference for environmental protection law have not been clarified and are subject to protection of the natural sources for living would have been degradation could only be resolved technologically on the basis of the existing economic environmental is back in the hands of the legislature, leaving it a free hand with regard to constitute a means of arbitrary or unjustifiable discrimination or a disguised · should the state allow that the working population and consumers are commercially 49 2 explain the meaning of the concept "sustainable development" are still of a very general nature. in 10th ed (luchterhand neuwied 1998) developmental and environmental responsibilities of the "rechtsstaat" kloepfer and reinert umweltfragen 41 ff according to the rules of justice. · approach. the most important contribution in european law in this regard is the directive neumann rule of law 182 ff legal meaning which is attached to it. ginther k and de waart pjim "sustainable development as a matter of good apart from preventing environmental accidents the authorities who are authorised to license only have the character of a legal framework. it is, therefore, of no avail to look 60 sachs m (ed) grundgesetz: kommentar 2nd ed (beck münchen 1999) 2311 pollutants which could cause harm to people in one or other way. another quality standard stability of the level of prices, a high level of employment, a foreign-trade equilibrium and constant prof j wolf per/pelj 1999(2)2 developments. the challenge for the rechtsstaat is to determine the most suitable legal federal constitutional court of 01.03.1979 (bverfg 50, 290-381, (338)) state is of the opinion that it is exposed to by an environmental risk with which it can deal effectively is a prerequisite for life. once the environment and natural living conditions in a the conception behind "sustainable development" binding. moreover, the legally binding conventions on climatic change cbd convention on biological diversity of 5 june 1992 31 ilm german law biology. application of these rules and formula, the facts of environmental disputes are often not all basis by means of multilateral as well as bilateral agreements. it is not surprising, therefore, beyerlin u "the concept of sustainable development" in wolfrum r (ed) to such an approach. according to the norms of the rechtsstaat, the only requirement is that framework. states should co-operate to promote a supportive and open international 24/89 the kind of legislation it may adopt to reach this goal. 44 handl g "sustainable development: general rules versus specific obligations" in second inquiry be answered positively, which criteria should be invoked to determine the johnston the earth summit 117 ff johnston d the earth summit (1994) history background of art xx gatt (1947). fifty years after the adoption of this agreement this ff the being-a-rechtsstaat of the federal republic of germany according to the constitution. he rightly federal water resources act (wasserhaushaltsgesetz) (bgbl i 1529) (bgbl i 1695) 12 possible standards with regard to the operation of a nuclear power station are not upheld compare justice can be isolated from the rules of natural sciences relating to physics, chemistry and 1 existing national law as well as european community law, treating it as a closely averted. such protective and preventive measures are normally taken by the police force. münchen 1999) 2311 blaau lc "the rechtsstaat idea compared with the rule of law as a paradigm for firstly, environmental protection is not only a dilemma of the industrial nations. it is just as rechtsstaat. of environmental damage exceed the possibilities of legal restitution the hazardous 21 bverfge 81, 70-97 (85), (decision of the federal constitutional court of 14.11.1981); hufen 1994 an extended list of the various elements of the rechtsstaat, see sachs grundgesetz kommentar art economy do not exist. common causes which were endorsed by all states of both the first and the third world. 22 see stern staatsrecht 781. in terms of the constitution, the rechtsstaat consists of the following: the special attention to the issues related to monetary policies which depend on constant economic gethmann kloepfer and reinert verteilungsgerechtigkeit brundtland gh (world commission on environment and development) our common the aim of environmental quality standards is to enable the legislature, government or regulatory character of environmental law. schmidt Öffentliches wirtschaftsrecht 65 ff 47 the original german text is as follows: "der staat schützt auch in verantwortung für die künftigen cause the environmental damage or risk. relationship between economic development and environmental protection at a 55 compare federal emissions control act (bimschg) §§ 1, 5 i nr 1, 2 and the federal water constitutional level. art 1 of the budgetary stability act specifies four criteria for these purposes, viz governed by predetermined patterns: it is determined by the rules of survival of the fittest constitution 10th ed (macmillan london 1959) 23/89 3 1997 nur 328-334 formal requirement for a legal order based on the rechtsstaat. it is a prerequisite for the schink 1997 dÖv 323 2 with regard to this higher level of risk potential, the legal standard for preventive bei bestimmten öffentlichen und privaten projekten official gazette l 175/40 a similar legal basis than the precautionary principle in environmental law does not exist developmental responsibility and the environmental responsibility of the rechtsstaat cannot protection. this deserves attention because the existing economic system is founded upon 25 hoppe and beckmann umweltrecht 23 constitution were afraid of leaving it to the courts to resolve conflicts on environmental 19 the expositions on the economic system (wirtschaftsverfassung) of the federal republic of prof j wolf per/pelj 1999(2)2 hoppe w and beckmann m umweltrecht: juristisches kurzlehrbuch für studium und kloepfer bonner kommentar rn 35 ff kloepfer m in bonner kommentar art 20a gg rn 35 organisation for economic co-operation and development (oecd) show one similarity, for regulating the drinking water quality is too low, nature will not recover sufficiently and the level will environmental law encompasses all legal sources which aim at controlling the technological executing responsibilities associated with a rechtsstaat. since there are certain resolved with the aid of environmental-law measures. the political goal to protect the environmental law 1 ff; wolf haftung der staaten 473, 579 ff. eliminated. legal protection would have been guaranteed without requiring the individual to in a similar and biological emissions into the air, watercourses and the soil. a single car driver's carbon dioxide pollution act of 1974. the act stipulates that the owner of a technical plant is under the is not put on a proper legal footing, the sensitive area of economic development in this field hufen 1994 neue juristische wochenschrift 2915 05.07.1985 nr l 175/40 praxis (beck münchen 1989) 579 protection in the catalogue of fundamental rights. during the preceding debate such a 62 prevailing economic system, namely free-market capitalism, and global environmental 28 this misunderstanding stems from the unquestioned definition of environmental law in germany as a 7. environmental quality standards beyerlin u and ehrmann m "fünf jahre nach dem erdgipfel von rio" 1997 umwelt- sachs (ed) grundgesetz kommentar there are no legal sanctions available to enforce it. even the to participate in orderly market agreements with regard to quality standards for di fabio u risikoentscheidungen im rechtsstaat: zum wandel der dogmatik im the effects are described in a detailed manner and are subsequently assessed. in prof j wolf per/pelj 1999(2)2 on an all-over basis it seems fair to suggest that the most important contribution to get to rules or "laws" of justice in a rechtsstaat? as a first step the laws of justice have to be protecting rights" 1990 salj 76-96 document. 2 for a discussion on the meaning of this concept, see beyerlin sustainable development; ginther and guaranteed in the constitutional. finally, in 1994, article 20a gg have been inserted rn 21; stern staatsrecht 767. tettinger art 12 gg rn 179-180 constitutional criteria to determine whether a "state goal" is thwarted have not been clarified lübbe a "umweltindikatoren: instrumente einer nachhaltigen umweltpolitik?" 1996 measures by the state is subject to the constraints of the fundamental rights guaranteeing secondly, the powers of the police force to take preventive action, including their regulation although environmental protection is no longer based only on historic neglect. 35 prof j wolf per/pelj 1999(2)2 as in the case of the constitutional goal of establishing a welfare state (sozialstaat) all direct and indirect effects of a planned neglected the ecological harm stemming from industrialisation and economic development. from a however, we seldomly address the nature (or wesen) of the lübbe 1996 zeitschrift für umweltrecht 64 degradation. it would seem, therefore, that a more integrated approach to master the legal however, there are two difficulties in existing precautionary legislation which cannot be 45/89 economic development and environmental issues have been linked to and translated into a kimminich umweltschutzes 12 kimminich o das recht des umweltschutzes 2nd ed 58 freedom and environmental law: system. environmental protection could therefore easily be misused as the basis for prof j wolf per/pelj 1999(2)2 32 42 above. prosecute crimes, the state is at risk to loose control over those areas where life is murswiek kommentierung zu art 20a gg rn 56 ff constitutional level. the constitutions of all the countries which endorse the concept of the the distinction between precautionary principle and mere preventive action was introduced control economic activities in order to prevent environmental degradation. these duties of demanded though. 34/89 bund für umwelt und naturschutz deutschland (ed) sachstandsbericht: studie state's environmental protection. of the rio declaration in order to secure sustainable development: which is central to such disputes cannot be influenced by the courts. this is particularly grundbegriffe und grundlagen des staatsrechts, strukturprinzipien der verfassung treats the economic system has no real implications for matters relating to the common market. secondly, the economic and ecological aspects relating to the development of a country controversial whether it is possible for the state to substitute market-related prices for council until the end of the 1980's can be historically and systematically explained. from a historic hand, and the german constitutional state, resting upon the foundation that legislation wced - world commission on environment and development regulatory character but also a planning-law dimension. transgressed, the bill with the consequences will inevitably be presented to us one day. we henneke h-g "der schutz der natürlichen lebensgrundlagen in art 20a gg: inhalt cbd biological diversity 818 quo with the aim that a specific level of emissions should not further deteriorate constitutes overtones. precautionary principle to avoid environmental harm. hemisphere during the last 150 years is utterly unfeasible. an ecological disaster on a federal constitutional court of 14.11.1981 (bverfge 81, 70-97 (85)) dimension when it comes to planning and the calculation of costs. (springer berlin 1996) 640 environmental measures addressing transboundary or global environmental neutralise such harm or to clean up or redevelop an area where an environmental disaster with regard to state responsibility for economic development. compared to economic technical equipment to reduce dangerous emissions to either the plant operator, the state and other precautionary measures to such an extent that the risk connected with such a 46 brönneke 1993 zeitschrift für umweltrecht 1. footnote conference, "sustainable development" was defined as "development that meets the needs of the conflicts by using force to protect themselves. distinguish between economic planning and environmental planning which is subject much a problem confronting the developing countries. today governments as well as nuclear plant act (atomgesetz) (bgbl i 3053) (bgbl i 1565) order through the legislature and, in accordance with the law and principles of experts, however, are indeed expecting such a deterioration of the environment. in order to achieve sustainable development, environmental protection shall 40 in the civil code (bgb) the law dealing with the law of neighbours the diametric opposite line has 8 conclusion prof j wolf per/pelj 1999(2)2 maitland fw the constitutional history of england: a course of lectures (university according to article 130(r) of the ec treaty, on an unilateral basis. from the perspective of the rechtsstaat principle, no objection can be made this standard is directed at positive state action with regard to financial planning, obliging state prof j wolf per/pelj 1999(2)2 harm but in fact forms the legal basis for continued and increasing environmental politics and legislation. the goal is to co-ordinate all economic and industrial activities on a 10 ossenbühl kernkraftwerken 54 f ossenbühl f bestandsschutz und nachrüstung von 1999 volume 2 no 1 is bound to respect fundamental rights does not really create any limitations which are reduction of dangerous and harmful emissions. should a plant owner be unable to fulfil his challenges outside the jurisdiction of the importing country should be avoided. 48/89 it is also not to be expected that a fundamental right guaranteeing a clean environment will 6.1 procedural approach not be able to fulfil its obligations with regard to environmental protection. 36/89 23 stern staatsrecht 786; eichenberger gesetzgebung im rechtsstaat 40 ff, 68 ff. 24 schmidt-assmann laws of nature (ie in physics, chemistry and biology), these statutes have no long-term perspective. been made by legislative bodies in european as well as in german environmental law. the henneke 1995 nur 325 health as a general risk of life should still be subject to control on a legal basis. in other 7 therefore subject to strict first relates to the fact that the actual effect of industrial activities which cause harm or damage to the 15 bverfg 7, 89 (92 f); bverfg 65, 283 (290). see also ipsen staatsorganisationsrecht rn 648 ff. for because they apparently impede economic and technological development. especially rio declaration 1992 distr general a/conf 151/5/rev1 13.06.1992 ilm 31 876 irresponsible. similarly, solutions to ecological jeopardy are not possible without due diversity parliament should conform with generally accepted norms of justice. sru umweltgutachten 129 ff der rat von sachverständigen für umweltfragen - ec directive 85/337 trade, the combat of protectionism, the equalisation of politicians in both the first and the third world know that a similar or comparable most ambitious and complex goal which has ever been tackled at the level of practical cause a considerable environmental problem. if you add technical plants and technical the economy has been legally restricted. to put it differently, the state's economic policy first prove a causal connection with the concrete harm to his/her health in a specific executive again from the judiciary. this separation of powers constitutes more than a mere consequences: the requirement that a probability of damage exists is replaced by the important exception relating to the legal system of publications london 1993) 260 obligation to take precautionary measures to prevent environmental harm with the aid of 33/89 schreiber umweltprobleme schreiber h umweltprobleme in mittel- und osteuropa law regimes (publ des fac univ saint-louis bruxelles 1993) 193 environmental protection". this rule for environmental protection is different in its bundestags-drucksache remain subject to legislative incentives and regulation. the fact that the german legislature essence the procedure aims at preventing and reducing all potential risks and harm to the measures which are indispensable to steer and hdur 2nd ed (erich schmidt berlin 1994) 2868 37 see kloepfer and reinert umweltfragen 41 ff. appears to be rather insignificant. the declaration of rio is not a legally binding 59/89 · a comparable responsibility of the rechtsstaat for economic development in such a the basic structure of economic law in a free market system with constitutionally deterioration of the environmental status quo. the guarantee of the status quo of the environment a given technical standard to prevent emissions. it is not only possible but is day to day 2.1 a common cause for the northern and southern hemisphere 25/89 33 according to arts 2 and 3 of the ec treaty, the economic order of the ec is directed at the creation of bernsdorff 1997 nur 332 cases systems on the environment. binding goal, a political programme with a specific aim or a goal set on the basis of worth mentioning when it comes to environmental protection. following: instead of the amount of precautionary measures we could just as well speak of freedom and the realisation of planning policy goals with the aid of regulations is often exploited by monopolies and uncontrolled competition of companies, the and technological development, the rechtsstaat would fail in its responsibility administrative scrutiny. di fabio risikoentscheidungen 35 ff 4.1 rechtsstaat zeitschrift für umweltrecht 64 consensus remains a mere postulate. with regard to unilateral state measures for environmental 6 precautionary principle should the environmental standards deteriorate, it is not clear what the legal consequences are. no state represented at the rio conference critically addressed the issue whether the present without compromising the ability of future generations to meet their own needs". this statutory measures are increasingly invoked and form the basis for an emerging new legal environmental law as "sonderrecht der staatlichen umweltschutzaktivitäten". such a teleological from the perspective of the rechtsstaat concept, environmental problems can only be rio declaration is clear evidence of this assessment (see principles 5, 7, 9, 12, 14 and 27). to providing a legal basis and ensuring a proper infrastructure for economic and social planning-law nature. this is illustrated very well by the kunig p das rechtsstaatsprinzip: Überlegungen zu seiner bedeutung für das fccc climate change 851 weimar and schimikowski wirtschaftsrechts 13 ff however, as long as the legal protection of individuals relating to environmental-law issues vicinity where the plaintiff lives. the state would no longer have been in a position to justify vortrag gehalten vor der berliner juristischen gesellschaft am 18. januar 1978 (de 51/89 can no longer be separated. it concerns two sides of the same coin. today economic legal problem. zfu - zeitschrift für umweltpolitik und umweltrecht natural resources by charging environmentally related fees for utilising these resources. · similarly, when a state does not take precautionary measures to protect the · due to the fact that natural resources are becoming more depleted environmental such a 61 it is controversial whether such declarations are of a legally binding nature and whether breuer freiheit des berufs § 147 rn 20. the state, aware of its responsibility for present and future generations, shall the time has come that the jurisprudential basis of our law, including the norms of modifications to the basic framework of the implementing economic and environmental law responsibilities of the rechtsstaat we have to focus on "sustainable development" from a 60 ossenbühl kernkraftwerken 54; di fabio 1996 jura 572 f. extent that the scales are tipped towards the extremely serious problem of climatic fürst d ea umweltqualitätsziele für die ökologische planung (1992) change. the statutes of a state which are adopted by a legislature constitute a special category of words, because such harmful and dangerous emissions create a legal risk and control technical plants also have to tackle the problem of reducing day to day technique of avoiding further degradation of the environment and the decrease of handl specific obligations 37 ff 1995 zfu 1-19 des staatsrechts der bundesrepublik deutschland (müller verlag heidelberg 1987) economic equilibrium" (ie the "erfordernissen des gesamtwirtschaftlichen gleichgewichts"). in instance. 34 encompassing executive power. so, eg, a violation of fundamental rights is assumed in the case of a mere risk when the highest national requirements. however, a prerequisite for the economic system of a 32 the reason for concentrating on environmental responsibility as forming part of the state's duties in since environmental protection became popular.28 insofar as existing sources of law requirements with regard to the environmental impact assessment (ec directive 85/337); mathematician who tries to add up noughts to get the sum total of one. should be translated into legislation. article 20a gg which formulates environmental 6.2 the approach of technical standards in terms of the precautionary principle under prohibit the emission of specific substances altogether. even the goal to maintain the status the third difficulty is related to environmental protection and environmental law. not only socio-political decisions to a great extent. in a free-market system which is based upon 54 dictated by crime. furthermore, the state will have to accept that the threatened 48 sicht" in gethmann cf kloepfer m and reinert s (eds) verteilungsgerechtigkeit im 17 on the historic development of the rule of law in england, see taswell-langmead english vested with state authority. however, the emphasis is on the legal structure which rechtsstaat § economic field - see the informative study of binswanger 1995 zfu 4. binswanger 1995 zfu 6 pays 50 federal constitutional court, also does not reveal much about the nature of the appears that the recently introduced precautionary principle has been intended as a in this regard, the police authorities act in a twofold manner according to principles of the 34 hufen 1994 neue juristische wochenschrift 2915; tettinger art 12 gg rn 180. utilisation - which otherwise would have been legally inadmissible -mitigated by technical secured. in other words, should this happen, the rechtsstaat would be perverted to an all 1990 (bgbl i 205) (bgbl iii 2129-2120) administrative practice for the time being than to apply well-known general formula, namely refers to development which is not at the cost of future generations. article 4 of the rio natural living conditions, preventative action. international trade law has not been very much clarified -in this regard, compare walker zeitschrift für umweltrecht 1 other words, the message coming from the rio conference clearly has economic blaau 1990 salj 88 ff gruyter berlin 1978) 40 pallemaerts international environmental law 1 ff pallemaerts m "international 4.2 environmental protection as a duty of the state on the one 36 obvious, namely that the authority may not issue him with an operating license. expert commissions to determine a specific emission standard for a certain field of germany and european law binding germany with regard to the responsibility of a the state's economic policy and companies' commercial policies are confronted with a new extremely, to flee from it. 14 for an exposition on european environmental law, see frenz europäisches umweltrecht 1-75 and umweltstaat (economica-verlag bonn 1995) 85 words, economic and technologicals development have to adapt to the rules of private plucknett tft [english constitutional history] from the teutonic conquest to the the legal boundaries to state interference in economic processes have not been clearly equipment in private households which produce similar air pollutants it escalates to such an economic considerations. 13 art 9 of the rio declaration; beyerlin and ehrmann 1997 umwelt- und planungsrecht 356-361. a limitation of these rights may be justified under specific future economic and technological developments which are compatible with environmental 44 steiger mensch und umwelt 62 ff, 73 ff; see also kloepfer grundrecht auf umweltschutz; for activity should be regarded as unlawful. it is the responsibility of the rechtsstaat to should such a fundamental right in fact have been incorporated in the german constitution, it is nevertheless interesting that the global programme for "sustainable development" is discretionary power of the police force in deciding whether a concrete danger exists is for environmental protection, on the one hand, and economic development, on the other, kommentar (beck münchen 1996) 2015 free commercial activity. debate whether or not to incorporate such a fundamental right in the bill of rights. 18 motivated measures which affect economic freedom of individuals. 4.3 challenges to the "rechtsstaat" with regard to "sustainable development" walker environmental protection an examination of the legality of environmental regulation under international trade 20 in art 109 s 2 gg, the german constitution sets the standard for budgetary policies of the federation guarantees that the separation of powers forms part of the rechtsstaat concept. the which is directed at the prevention of risks. in legal terms this has far-reaching · existing private and criminal law regulations should not be restricted or weakened only general and encompassing sense does not exist. this is due to the fact that each they are suitable to relieve the state from its responsibility for environmental matters. erbguth rechtssystematische grundfragen 124 development and environmental protection. however, the consequences of the rio plants with unacceptable environmental consequences. the main problem concerning the from a legal perspective, such emissions constitute a legal risk (rechtsgefährdung) but s - section 6 day. in this context, the precautionary rule has become a kind of "basic law for rechtsstaat as such. these natural resources (that is distributive justice). blackstone laws of england 160 bundes-immissionsschutzgesetz be resolved without prior clarification what the concepts "distribution" and "scarcity" mean in based on the rechtsstaat idea, on the one hand, and the dynamics of political and protect the natural [re]sources of life within the framework of the constitutional statutes and administrative regulations, the more environmental law also becomes subject to state parliament are only an attempt to formulate the general norms of justice for a specific state. 29/89 problems related to environmental protection is the proper point of departure for this tagung der vereinigung der deutschen staatsrechtslehrer in trier vom 30. 5 at 63 ff and weimar and schimikowski wirtschaftsrechts 13 ff have the following in common, the precautionary principle addresses the problem upon the general experience and on specific information held by the authorities. the sustainable development. further analysis. 5.2 article 20a as a state goal of environmental protection environmental protection, including those areas which overlap with economic development, the rechtsstaat, though, departs from the ideal that the statutes which are adopted by prof j wolf per/pelj 1999(2)2 discretionary powers to infringe upon the rights and freedoms of those who destroy or 61 see di fabio 1996 jura 574 for further references. a monetary structure which depends on constant economic growth. developing countries are in the same boat when it comes the twin concept of further , the the maastricht treaty placed the emphasis on mere preventive action. consequently, it consume products. 28/89 rn - randnummer(s) rechtsstaat. f breuer freiheit des berufs § 147 rn 20 principle, namely the precautionary principle. brönneke t "vom nutzen einer einklagbaren umweltverfassungsnorm" 1993 policy which does not take ecological aspects into consideration is as unrealistic as it is growth. see schreiber umweltprobleme for a discussion of the effects of socialistic economic such laws. these statutes are adopted by parliament for a specific state and only find application second point underscores state responsibility for environmental protection which in principle has 7 the economic impact of the concept of "sustainable development" has been analysed by binswanger professor for environmental law and administrative law at the ruhr-university bochum, regulating the level of emissions opted for the opposite approach. in terms of § 906(1) bgb took the legal regulations which serve environmental protection. kloepfer umweltrecht § 1 rn 60 defines industrialisation of the southern hemisphere on the basis which it took place in the northern dicey law of the constitution 39 dicey av introduction to the study of the law of the restriction on international trade. unilateral actions to deal with environmental art(s) - article(s) endanger public security, are restricted to situations of concrete and imminent danger. the 42/89 with regard to quality standards, they could contribute substantially to effectively improve took place. on closer examination, though, the true responsibility for environmental and in effect this constitutes the most important instrument for safeguarding public security. (part ii)/add1 31 ilm 20 rn 77, 78. see also lerche Übermaß und verfassung 32. nature from other norms of justice relating to human life such as the prohibition of rights to include a fundamental right for the protection of environmental freedom. in a economic life. the greater the extent to which economic development is regulated in terms of 18 see blaau 1990 salj 88 ff; neumann rule of law 182 ff. epiney europäischen union 1-3. context does not refer to a risk in a vague sense of danger that might result but to a specific lang w (ed) sustainable development and international law (graham and trotman make generally applicable laws for all people by only taking its own perspectives and aims into legislative power is separated from the executive and the judiciary, and as next step, the 57/89 protection as a "state goal" reads as follows: 56 kernkraftwerken (heymann köln 1994) 140 1 introduction at one or other stage the legislation will have to be amended, eg when the critical level which is set 37 constitution in order to improve environmental protection but at the same time the ball is beyerlin sustainable development 95 ff germany by the environmental impact assessment act of 12 february 1990. the rechtsstaat is characterised by the fact that it is composed of various elements which environmental impact assessment act (uvpg). brönneke 1993 zeitschrift für umweltrecht 1 federal constitutional court in the kalkar matter (bverfg 49, 89 ff) 45 see the exposition by peters 1995 nvwz 555 and henneke 1995 nur 325. environment and natural living conditions of human life, then it will be too late one which was held in 1992. the concept of "sustainable development" is central to this global kloepfer umweltrecht kloepfer m umweltrecht 2nd ed (beck münchen 1998) 1416 environmental protection. occurred. developmental and environmental responsibilities of the "rechtsstaat" and the following pages on the basis of a rechtsstaat in any of these documents. services, on the one hand, and natural resources, on the other, is still appropriate and valid 51 murswiek kommentierung zu art 20a gg rn 56; kloepfer umweltrecht § 3 rn 56. principle and on the principle that preventive action should be taken. obligations with regard to the beckmann umweltrecht § 7 rn 1 ff. in terms of german constitutional law, state goals (staatsziele) bind the legislature and standards. murswiek d "kommentierung zu art 20a gg" in sachs m (ed) grundgesetz binswanger m "sustainable development: utopie in einer wachsenden wirtschaft?" goal to "protect the natural sources of life" has been formulated in very general terms. in state have been destroyed, only one solution remains: to leave the country, or more resources can be protected with long-term environmental measures, nor can the precise 24 however, commercial freedom takes precedence over planning policy. in essence it is impossible to provide an answer to the inquiry on the nature of the press cambridge 1908) 547 27 hoppe and beckmann umweltrecht 23; oberrath umweltrecht 17. interests - is always subject to the fundamental rights of those who participate in to the precautionary principle in a rechtsstaat. erbguth w rechtssystematische grundfragen des umweltrechts (duncker und und die rechtsprechung." the german concept of "lebensgrundlagen" has been translated with statute permits dangerous emissions which do not only lead to a temporary nuisance but to guaranteed rights of private persons is characterised by freedom from state 12 this approach is contrary to the practical politics of all the countries which are significant in a 47 legislatures on a national level are of great significance when it comes to formulating and everybody who is in a position to cause harm to fundamental rights directly binding all branches of state power (art 1 s 3 gg), the separation of powers (art a legal context. currently we can only quote economic explanations. the economic 8 hohmann 1993 nvwz 311-319. 9 fccc climate change 851. 10 cbd biological diversity 818. 11 they also fall within the scope of environmental law. logically the amendment of such rechtsstaat. firstly, the action of the police force serves the protection of law and freedom 4 the legal dimension 1995 zfu 1-19. his analyses shows that states as well as international organisations nevertheless sustainable development in this sense breuer r "freiheit des berufs" in isensee j and kirchhof p (eds) handbuch des present time 11th ed (sweet and maxwell london 1960) 733 fn germany by schmidt Öffentliches wirtschaftsrecht § 3 at 65 ff; stober wirtschaftsverwaltungsrecht § developments which are to the advantage of the whole economy. on an all-over basis, ec directive 85/337 of 27.06.1985 environmental impact assessment ec gazette of und planungsrecht 356-361 46/89 47/89 the concept of "sustainable development". steiger mensch und umwelt 62 ff steiger h mensch und umwelt: zur frage der einführung goal of the state. in principle legislative measures and administrative regulations are restricted 30/89 the german constitutional amendment of 1994 deliberately did not take up environmental development and the dictates of constant economic growth. law is increasingly also understood as a mechanism serving the ends of fair distribution of administrative practice to develop such standards. intense becomes the pressure on the state to create jobs and to interfere in the free market 43/89 point with three examples: mere preventive action refers to the protection of public security, including the protection of let me illustrate the epiney europäischen union 1-3 dilemma has not been resolved in german environmental law and is still debated. humblot berlin 1987) 452 regulation in its own right and with a legal impact distinct from the rule simply emphasising powers, the separation of powers and the basis of the rechtsstaat itself would no longer be environmental pollution which already occurred or to promote new technology which offers enforcing environmental standards: economic mechanisms as viable means? 57 are often no clear answers to the dilemma of finding a justification for environmentally rechtsstaat is that state interference in the economic life - despite national economic permanent ecological harm, this is contrary to the rules of justice which is one of the wolf haftung der staaten 473 ff 579 ff devices. due to the fact that european law enjoys precedence, the free market economic system is interrelated legal network. all provisions and rules which may contribute to solve 6 the great number of duties to co-operative for environmental protection purposes stipulated by the 25 on the characteristic of law as a mechanism to create order, see schmidt-assmann rechtsstaat § 24 does not set specific limits to the degree of admissible pollution or the extent to which 41 schink a "umweltschutz als staatsziel" 1997 dÖv 321-329 future reprint (university press oxford 1989) 400 the realisation of such quality goals are just as flexible. it can take on the form of a legally 63 collapse. the confidence and trust of investors will disappear and they will be instruments or mechanisms which correspond to the advanced techniques available for the scope of economic activity which is affected be determined. in the case of a fundamental right guaranteeing the "natural sources of life", it prof j wolf per/pelj 1999(2)2 the state not only has to create the legal basis for frenz w europäisches umweltrecht (beck münchen 1997) 292 29 grips with the responsibilities of the rechtsstaat in promoting environmental protection has 11 legislative measures require that precautionary measures should be taken by those who bernsdorff n "positivierung des umweltschutzes im grundgesetz (art 20a gg)" fundamental rights of participants in economic life, the relation of the state's responsibility cannot be classified as a concrete statutory transgression (rechtsverletzung). 16 sustainable development. 26 every general law, be it in the form of parliamentary statutes or laws of nature (ie the laws of natural resources act § 1(a). interference. since the adoption of the uniform european act, environmental protection measures found who were against the incorporation of a fundamental right to a clean environment in the energy and the aim to keep down costs of energy and transport are secured on a global a comparison of the british concept of the "rule of law" which departs statutes budgetary stability act (stabilitätsgesetz) of 1967 (bgbl i 582) prof j wolf per/pelj 1999(2)2 changes. the ways and methods invoked by legislatures to master these problems on the state and economic life has not been clarified. the object and purpose of such a state goal to protect the environment is to create a economic development and simultaneous environmental protection which is captured by law is not restricted to statutory law and administrative regulations which have been created 59 uvp-rl 85/337/ewg. this directive was belatedly transformed into national legislation in force in social conflicts and the corresponding state monopoly to solve social 8 everybody's rights under circumstances where concrete a danger exists. co-operation is required in order to find an acceptable solution to problems relating to the costs related to the implementation of precautionary measures without changing the 63 fürst ea umweltqualitätsziele. for a critical evaluation of loopholes to abuse the quality standards, with a specific number of precautionary measures which are necessary in terms of the precautionary principle. unwilling to risk their capital for new investments. consequently the commercial expresses this ambitious aim in simple words: assessment whether a "concrete" danger does exist under specific circumstances depends manner, neither with regard to its responsibility for environmental protection nor with regard the rechtsstaat is often distinguished by the fact that there is a separation of the powers justice, the executive and the judiciary. such blackstone w commentaries on the laws of england (cadell london 1765) vol i 485 development in all countries, to better address the problems of environmental prof j wolf per/pelj 1999(2)2 cornerstones of the rechtsstaat. such a statutory provision does not preclude ecological 55/89 · we should analyse disputes which constitute an environmental risk on the basis of distinction should legally be drawn between consumer goods which could be increased and und wirkungen einer ausbalancierten staatszielbestimmung" 1995 nur 325-335 such measures do in fact exist and are just as effective as measures in terms of national law. very 15 infringement of rights or a violation of the laws will definitely occur if the danger is not prof j wolf per/pelj 1999(2)2 staatsrechts der bundesrepublik deutschland (müller verlag heidelberg 1987) 1279 to conclude, the responsibility of the rechtsstaat has not been defined in an acceptable expressed. a rechtsstaat is a state which is bound by law and justice both with regard to have little interest in a all-encompassing calculation of costs in the context of sustainable and the länder that they should take due cognisance of the "requirements of [a] macro and the following page veröffentlichungen der vereinigung der deutschen staatsrechtslehrer (de gruyter predominantly rests upon the state. schmidt-assmann e "der rechtsstaat" in isensee j and kirchhof p (eds) handbuch prof j wolf per/pelj 1999(2)2 59 prof j wolf per/pelj 1999(2)2 s - section 64 wto, global transport relations, open markets for the production and consumption of statutory and economic sovereignty which form the legal basis for effectively promoting regenerated and other goods which cannot. the latter should be classified as public or environmental goods. definition is too restrictive in its conception. it does not explain the complexity of the planning and further references also kloepfer umweltrecht § 3 rn 21 (fn 62 and 63). been clarified in all its dimensions. we usually list the various components which are rights has not been incorporated in the european union treaty. grundsätze der verhältnismäßigkeit und der erforderlichkeit (köln heymann 1961) environment are legally addressed according to the causative principle (verursacherprinzip). the and biotechnology) or of specific substances (for example cancerogenic materials) is too binding force of law and justice. it is also an imperative that the rechtsstaat can only "act"