Environmental Decision-Making in a Federation - Is the Allocation of Powers Envisaged by the 2006 Reform of German Federalism Sound in Terms of Environmental Decision-Making? - An Analysis with Regard to the Australian Experience

Löhr, Gerda

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URL: https://ub-madoc.bib.uni-mannheim.de/1433
URN: urn:nbn:de:bsz:180-madoc-14335
Document Type: Final Thesis
Year of publication: 2006
The title of a journal, publication series: None
Publication language: English
Institution: School of Law and Economics > Sonstige - Fakultät für Rechtswissenschaft und Volkswirtschaftslehre
Subject: 340 Law
Subject headings (SWD): Föderalismus , Umweltrecht , Australien
Individual keywords (German): Australisches Recht, Föderalismusreform
Keywords (English): Australian Law, Federalism, Environment
Abstract: The pressing necessity to protect the integrity of the environment with all its natural resources has only been recognised as an autonomous area of decision-making since the 1970s. Therefore, neither the Commonwealth of Australia Constitution Act 1901 nor the German Basic Law 1949 considered it necessary to provide for an allocation of legislative competences over the environment. Not surprisingly, the continuously growing public awareness of environmental problems in the 1970s coupled with the steady aggravation of environmental degradation on a global scale, encompassing issues such as climate change, ozone depletion and threats to biodiversity, prompted a discrepancy between the silence of both constitutions in this area on the one hand and the growing need to tackle environmental issues through regulation on the other. As a result of this institutional vacuum within both federal systems, every layer of government sought to use the protection of the environment as a vehicle to expand its powers to the detriment of the other levels as well as to attract the increasingly important ‘green vote’ in upcoming elections. The German response to this issue entailed several amendments of the Basic Law that were made in an ad hoc fashion and allocated singular competences in the field of environmental protection when this seemed necessary. In the end, this prompted the emergence of a highly complex and detailed, though partly inconsistent and impractical system of competence allocation. Contrariwise, the Australian development was characterised by fierce conflicts between the federal level and individual states and territories in the scope of which extensive litigation was used in order to define the ambit of the mutual competences of both levels under the Australian Constitution. But despite these slight differences in the response to a similar starting point, the underlying common feature of both the Australian and the German constitutional situation concerning environmental protection is the omnipresent antagonism between federal and state rights and responsibilities, or to put it another way, the inherent tension between centralism and devolution. As a consequence, any upcoming debate on the allocation or re-allocation of environmental competences will be automatically accompanied by the general discussion about the merits and pitfalls of a centralised as opposed to a decentralised approach to environmental decision-making and management. And even more, this issue also tends to ebb and flow in response to changing political climates or to pressing environmental or economic problems. Within this general framework, it is only logical that the far-reaching reform of the German federal structure, that was passed in July 2006 and the main objective of which was inter alia the re-allocation of environmental competences, needs to be scrutinised with respect to the question of whether this re-allocation of regulatory authority will indeed improve the quality of environmental policy, decision-making and management. Thus, the focus of this thesis will be the assessment of whether the new division of environmental powers under the amended German Basic Law is advisable not only with respect to the theoretical analysis of both the centralist and the decentralist approach, but also with regard to the Australian experience within this context.

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