Article: A German source of inspiration? Locus standi and remediation duties under the Soil Protection Act, the Environmental Liability Act and the draft Environmental Code

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Abstract

German public law has developed a far-reaching, strict and unlimited responsibility mainly of polluters and owners for investigation and remediation of contaminated sites as well as prevention of future contamination. In this liability system, which is now codified in the federal Soil Protection Act, the responsible persons and the competent agency are the major players. It is not the polluter who bears the primary responsibility for contaminated sites but the present landowner. Therefore, the recognition of limits to the responsibility of the owner (based on grounds of proportionality) by a recent decision of the German Constitutional Court is of major importance. As to the setting of thresholds for investigation and remediation, German law has taken a pragmatic stance relativising, the basic concept of prevention of danger by recourse to the exercised or admissible use of the affected land. Trigger and remediation standards are designed to ensure a fair degree of uniformity in the investigation and remediation practice. The draft Environmental Code would introduce a new element into the public law liability regime for environmental harm. It proposes to extend the strict liability to pure ecological harm although limited in certain respects. Whilst restoration and replacement are the primary duties of the responsible persons, the draft would also introduce monetary compensation for remaining ecological harm. Moreover, it would deviate, in some cases, from the traditional model of enforcement discretion by obliging the authorities to require remediation. Following an introduction the author examines the legal basis for investigating and managing risks originating from contaminated sites before looking at the position of contaminated sites under both public and private law and finally offering his conclusions.

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