400 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW 8. Western Europe B. Germany

(1) Climate Change

(A) Domestic Legal Developments

In February, the federal Cabinet adopted a draft amendment to the Greenhouse Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 Gas Emissions Trading Act (TEHG). The amendment to the TEHG transposes comprehensive amendments to the European Community’s (EC) Directive 2003/87 Establishing a Scheme for Greenhouse Gas Emission Allowances Trading within the Community into German law. The amended TEHG serves the purpose of incorporating the rules of EU emissions trading into the German legal system and regulating the enforcement of the act. The harmonization of EU emissions trading from 2013 reduces the need for national rules. The competences of the federal and La¨nder governments regarding the enforcement are defined more clearly than before. For example, with respect to future emis- sions, monitoring will be a responsibility of the German Emissions Trading Authority (DEHSt) at the Federal Environment Agency. This nationwide uni- form monitoring of reporting ensures that with regard to emissions trading the same conditions for competition will apply to all companies in Germany. The amended TEHG revises emissions trading law in Germany for the coming trading period. From 2012, more than 2,000 installations and 200 airlines will participate in emissions trading. Pursuant to European law, emissions trading will include aviation from 2012 and other emission-intensive industrial sectors from 2013. Total emissions for all installations subject to emissions trading will be reduced by 1.74 percent every year from 2013. Emissions trading will thus make the largest contribution to reducing greenhouse gas emissions in Europe between 2013 and 2020. The fact that emission budgets were stipulated for the long term creates a reliable framework for emissions trading and enhances investment security. From 2013, emissions trading will be harmonized to a greater extent through- out Europe. This mandate applies in particular to the rules governing free allo- cation of allowances and auctioning. So far, the twenty-seven member states have laid down their own rules for free allocation. From 2013, all member states have to apply uniform EC rules. For most installations, the amount of allowances allocated is based on ambitious benchmarks. From 2013, there will be no more free allowances for electricity generation. Power plant operators will have to pay for the emission allowances they need. From 2013, about five times as many emission allowances will be auctioned in Germany compared to the current trading period (2008-12). More than 90 percent of the revenues from auctioning will be used for national and international climate protection and measures implementing the energy concept. COUNTRY / REGION REPORTS 401 The German minister of the environment, Norbert Ro¨ttgen, stated in a press release on 16 February that ‘from 2013 the EC rules on allocation will eliminate the previous distortion of competition. If there are uniform allocation rules, the most efficient companies will be at an advantage in future. For German industry this is an opportunity and a challenge to remain at the spearhead of efficient technologies.’ On 24 August, the federal Cabinet adopted the regulation governing the allocation of allowances for greenhouse gas emissions in the 2013-20 trading period (Allocation Ordinance no. ZuV 2020). This legal basis Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 makes it possible for the federal government to allocate emission allowances free of charge to almost 2,000 facilities that will take part in emissions trading in Germany in the trading period between 2013 and 2020. In addition, it identifies the data required for the allocation process pursuant to section 9 of the TEHG and further elaborates the requirements under sections 8, 24, and 27 of the TEHG. The allocation ordinance fully transposes EC provisions into German law. In the first eight years of EC emissions trading, the member states had some leeway in establishing their own rules for the free allocation of emission allow- ances. Germany, for example, had a separate allocation law governing the rules for allocation. After 2013, there will be a noticeable harmonization in emissions trading across Europe. This also extends to the allocation rules adopted under EC Commission Decision 2011/278 of 27 April 2011. The number of free allocations will be much lower after 2013 compared to the two previous trading periods. This decrease can be attributed to the intended and targeted restriction of available allowances and to the fact that the entire electricity sector is excluded from the free allocation of allowances. In the past, the full monetary value of the certificates allocated to the electricity sector for free was passed on to the clients and added to their electricity bills as extra costs. In the future, it will no longer be possible to reap ‘profits’ of this kind. As of 2013, most facilities will receive allocations based on product-related emission levels. These so-called ‘product benchmarks’ have been fixed for the whole of Europe and are based on the 10 percent most-efficient European facil- ities. As a consequence, inefficient plants will have to buy an increased number of emission allowances in the future. Facilities from sectors threatened by a carbon leakage risk—that is, where production may be relocated to other countries, will receive an unrestricted amount of allowances, whereas allocations to other facil- ities will be gradually reduced by 30 percent between 2013 and 2020.

(B) International Legal Developments and Germany’s Response On 26 April, a group of the largest greenhouse gas emitters discussed specific climate protection measures in Brussels. At the climate forum in Brussels, representatives of the seventeen largest economies worldwide, which are respon- sible for about 80 percent of total greenhouse gas emissions, participated in the Major Economies Forum. The meeting in Brussels was the first since the Cancun 402 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW climate summit in December 2010. The goal of the meeting was to fine-tune the Cancun Agreements and to assess political framework conditions for success at the forthcoming climate conference in Durban, South Africa. In July, the Petersberg Climate Dialogue II was held in Berlin to prepare for the UN climate summit that took place in Durban, South Africa, at the end of 2011. Federal Minister of the Environment Ro¨ttgen noted: ‘Last year on the Petersberg near Bonn we set the course for the outcome of the United Nations

Climate Change Conference in Cancun. We want to build on this tradition. This Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 year, too, we want to use this informal ministerial meeting to mark out at pol- itical level an ambitious yet realistic framework for the upcoming UN Climate Change Conference in Durban.’ Germany and the EC advocated legally binding reduction targets as described in the Kyoto Protocol. A binding legal framework provides transparency, en- sures that countries and private players have a predictable planning base, and generates confidence that commitments will actually be kept. However, those states that made reduction commitments under the Kyoto Protocol will not be able to stop climate change on their own. These countries account for less than one-third of global emissions, and their share continues to fall. Therefore, Germany and the EC are calling on the United States to make comparable commitments and for the major newly industrialized countries to set themselves appropriate and binding targets. The 2011 Petersberg Climate Dialogue II focused on linking implementation and negotiation. Germany shared the chair of the Petersberg Climate Dialogue with the president of the next climate change conference in South Africa. In December, the Climate Change Conference in Durban (COP-17) paved the way for a comprehensive climate agreement between all countries following long and tough negotiations. Minister of the Environment Ro¨ttgen welcomed the ‘Durban package’ as a ‘major, groundbreaking success for global climate protection.’ He particularly stressed the importance of the decision to start im- mediately with the preparation of an international climate agreement that is to be legally binding for all countries. On this basis, it was possible for the COP to agree on a second commitment period for the Kyoto Protocol to follow on from the first commitment period, which expires at the end of 2012. Furthermore, there is to be a work plan for greater mitigation in order to enhance the mitigation measures of countries until the conclusion of a legally binding agreement. Additionally, the operationalization of the Green Climate Fund for financing climate protection and adaptation measures in developing countries was adopted in Durban. The Durban package also includes the estab- lishment of structures for an Adaptation Committee and a Climate Technology Centre and Network. Minster of the Environment Ro¨ttgen commented: ‘The Durban Package marks a qualitative leap forward. We have now laid the foundations and achieved the momentum for the first international climate agreement to apply to all countries. COUNTRY / REGION REPORTS 403 With a strong alliance between the EU, the least developed countries and the small island states, which are most vulnerable to the impacts of climate change, it has been possible to put together a package of measures that will require commitment from all parties in the long term, above all from the biggest emit- ters. We will continue this alliance beyond the conference.’

(C) International Climate Co-operation Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 In 2011, Germany’s Federal Ministry for the Environment approved funding for a unique project that will develop insurance solutions in Caribbean states par- ticularly vulnerable to climate change. The objective is to protect small farmers and day workers from losing their livelihoods due to the impact of a hurricane or a flood by offering micro-insurance and other risk-transfer solutions linked with disaster risk reduction and risk management. Developing countries located in disaster-prone regions, such as the Caribbean, are particularly vulnerable to the consequences of global climate change, making it even more difficult for people in those countries to adapt to the increasing risk. The project, funded with nearly E2 million for a period of three years, aims at bringing Munich Re, the Caribbean Catastrophe Risk Insurance Facility, and specialist micro-insurance broker MicroEnsure together under the umbrella of the Munich Climate Insurance Initiative (MCII). In the next three years, up to three different insurance products will be developed and marketed in at least three countries across the region, and their acceptability to, and effect on, the target group will be put to the test. A new aspect of these products will be a close association with risk-reduction measures. Launched by Munich Re, together with representatives from international finance institutions, scientific institutes, and non-governmental organizations, and hosted at the United Nations University Institute for Environment and Human Security (UNU-EHS), the MCII has been involved in the UN climate negotiations process since 2005. At the World Climate Conference in Poznan (COP-14) in 2008, the MCII tabled a detailed proposal for a risk management module linking insurance solutions to disaster risk reduction to help developing countries adapt to climate change. This project was the first operative step of the MCII towards such an integral risk management system for developing coun- tries. In 2009 at COP-15, a number of key items from the proposal were included in the Copenhagen Accord, which were carried forward into the Cancun Agreements in 2010 (COP-16) and even reflected in the Work Programme on Loss and Damage under the Subsidiary Body for Implementation of the UN Framework Convention on Climate Change. The German Environment Ministry, under its International Climate Initiative, supported the Dominican Republic’s government in designing the climate-compatible development plan, which was presented at the UN Climate Change Conference in Durban in December. The project was initiated by the 404 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW Coalition for Rainforest Nations, a group that advocates for the protection of tropical rainforests in the international climate negotiations. Germany and the Dominican Republic want to continue their successful climate co-operation during the implementation of the development plan. At the UN Climate Change Conference in Durban, federal environment min- ister Norbert Ro¨ttgen further pledged support of E10 million for Mali and E5 million for Grenada to help the governments of the two countries implement their respective programs. Both countries have been strongly affected by climate Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 change and are particularly vulnerable to storms, floods, and droughts. At the UN Climate Change Conference in Durban, Germany also joined the South African Renewables Initiative (SARI). Germany signed a declaration of intent on SARI, together with representatives from Denmark, Great Britain, Norway, Switzerland, and the European Investment Bank. Federal environment minister Ro¨ttgen stated that ‘SARI is an important programme for climate, energy and industrial policy whose impact will also be felt beyond South Africa’s borders.’ In the further development of its energy supply, South Africa aims to focus increasingly on renewable sources and increase its share in the supply of elec- tricity by 9 percent by 2030. Through SARI, South Africa is providing a frame- work for comprehensive direct support from the international community to facilitate the implementation of these ambitious goals. Envisaged areas of co-operation include financing and the development of financing mechanisms as well as advice on appropriate framework conditions and on the establishment of a green economy. The South African initiative is supported jointly by the Federal Environment Ministry and the Federal Development Ministry. SARI is not Germany’s only instrument of support for South Africa. The German gov- ernment has so far provided a total of around E400 million for climate and energy projects in South Africa. For example, funds from the Federal Environment Ministry’s international climate initiative are used to advise the South African Environment Ministry on the implementation of its national cli- mate strategy.

(D) Carbon Capture and Storage In April, the German government adopted the draft act on the demonstration and application of technologies for the capture, transport, and permanent storage of carbon dioxide, thus transposing EC Directive 2009/31 on the Geological Storage of Carbon Dioxide to the extent that carbon capture and storage (CCS) demonstration projects can be carried out until 2017. The draft act creates the prerequisite for CCS testing projects in Germany to receive EC support. Agreement was reached on the contentious issue of options for influence on the part of individual federal states (La¨nder) regarding demonstration storage. In a technical assessment process, the La¨nder can designate areas in which carbon COUNTRY / REGION REPORTS 405 dioxide storage is permissible and in which it is not. The draft act thus takes due account of the different regional circumstances and contributes to increasing acceptance of CCS. The Bundestag followed its Environmental Committee’s proposal for the CCS Act (Gesetz zur Demonstration und Anwendung von Technologien zur Abscheidung, zum Transport und zur dauerhaften Speicherung von Kohlendioxid). The committee’s proposal is based on the government’s draft.

Federal Minister of the Environment Ro¨ttgen noted: ‘I am very pleased that a Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 solution has been found that considers the different interests of the La¨nder. The possibility for testing CCS technology enables Germany to make use of an internationally recognized climate protection option that can also have major economic significance as an export product. The draft act allows testing in line with the highest environmental standards and with broad public participation as a prerequisite. A decision on large-scale application will only be taken if the testing phase reveals that CCS technology is safe.’ CCS is a contentious issue in Germany. Opponents of the CCS technology pointed out the possible risks associated with the CCS technology. Due to strong opposition to the technology, two of the states with the most possible storage locations, Schleswig-Holstein and Lower Saxony, which are both ruled by co- alitions involving the Conservative party’s Christian Democratic Union, had been lobbying for an opt-out clause in the past. This option has been opposed by the state of Brandenburg, which has argued that it would give other states with more suitable storage locations the right to opt out of exploring a potential climate protection option. In Brandenburg, Vattenfall AG operates a oxy-fuel pilot plant located near its existing lignite-fired power plant in Schwarze Pumpe and wants to open a larger-scale CCS demonstration power plant in Ja¨nschwalde in 2015. The bill that has now been adopted by the Bundestag contains a clause that gives the federal states the right to designate areas for CCS pilot projects as well as areas in which such projects are not allowed. According to the newspaper Handelsblatt, Vattenfall sharply criticized the CCS bill in its current form. It quotes the chief executive officer of Vattenfall Europe Mining and Generation AG as saying he hoped that the Bundesrat, the legislative body that represents the federal states, will amend the bill. Otherwise, Vattenfall would not be able to develop the CCS technology in Germany. Nevertheless, the government considered it important to facilitate testing where desired. Demonstration projects in these areas can determine whether CCS could actually achieve the hoped-for contribution to climate protection, guarantee the necessary safety, and prove to be affordable. However, if the public determines that it is not desirable, the CCS technology will not be tested or introduced. The German government has therefore decided on a step-by-step process. In the area of carbon dioxide storage, the draft act initially only regulates testing and demonstration. Broad public participation is required for the licensing of 406 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW demonstration storage facilities. By doing so, the German government ensures that the special features of this new technology and public concerns are given due consideration. A decision on a large-scale introduction of CCS will only be taken once there is sufficient proof of storage safety. The act will be thoroughly evaluated in 2017. To this end, the government will prepare a report for the German Bundestag. The CCS process will only continue if the findings are positive. The key elements of the draft act include: Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 Restriction of storage to demonstration purposes, which mandates that stor- age facilities may only be licensed if the application for the license is filed by the end of 2016, the annual storage volume per facility does not exceed three million tonnes, and the overall volume nationwide does not exceed eight million tonnes of carbon dioxide per year. Licensing of demonstration storage facilities, which requires prior investi- gation and a plan approval procedure with an environmental impact assess- ment. The highest possible precautionary standard will apply. Precautionary measures must be taken against negative impacts on human beings and the environment in line with the state-of-the-art action in science and technology. Protecting other uses, which mandates that other uses of the underground— that is, geothermal energy and energy storage—will be given adequate pro- tection. This ensures that CCS does not have a detrimental effect on other uses of the underground. Transfer of liability: One prerequisite for the transfer of liability prescribed by European law is proof of long-term safety to be provided by the operator. This ensures that the state does not have to take over unsafe storage facilities with unresolved risks. Financial security, which mandates that the operator must provide financial security for the entire cycle (from the investigation to the transfer of liabil- ity). For the period after the transfer, the operator must set aside funds for aftercare once the first tonne of carbon dioxide is stored. This action ensures that sufficient funds are available after liability has been transferred to con- tinue monitoring storage and to tackle potential risks. Further regulations, which oversee the establishment and operation of carbon dioxide pipelines on the basis of energy industry law and capture facilities on the basis of federal emission control law. Additionally, all CCS facilities will be subject to emissions-trading law. The draft CCS act will form a legal framework for testing and demonstrating carbon storage that ensures planning and investment security. The restrictions on testing and demonstrating permanent storage, the application of the highest environmental and safety standards, and effective financial security ensure that the launch of this technology is regulated in a gradual, risk-free way and COUNTRY / REGION REPORTS 407 with an open outcome. The goal is to implement at least one of up to twelve demonstration projects that are planned throughout the EC on this legal basis. The parliamentary procedure for the draft act was initiated with the goal of having it enter into force. As the bill is a so-called zustimmungsgesetz (‘consent law’), it needs consent from the Bundesrat. Hence, an objection by the Bundesrat would mean that the bill could not enter into force. Unlike with the so-called einspruchsgesetzen (‘objection laws’), a lack of consent cannot be remedied by another Bundestag’s vote in favour of the bill. In the Bundesrat, however, the Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 government does not hold a majority.

(2) Renewable Energy (A) Reports and Statements In January, the German Advisory Council on the Environment (SRU) presented federal Minister of the Environment Ro¨ttgen with the special report, Pathways towards a 100 Percent Renewable Electricity System (Wege zur 100% erneuer- baren Stromversorgung). The study comes to the conclusion that a 100 percent renewable electricity supply is possible in Germany by 2050. The report shows various scenarios illustrating how a 100 percent renewable electricity supply in Germany can be achieved. The main scenarios analyzed are a purely national expansion strategy, collaboration with Denmark and Norway, and a European solution incorporating North Africa. In addition to the significant expansion of renewable energies, increased energy efficiency and the expansion of grid and storage capacities are also crucial to the successful implementation of the development illustrated in the scenarios. Minister of the Environment Ro¨ttgen commented: ‘This special report is an important contribution to the discussion on sustainable energy and environmen- tal policy. With its Energy Concept, the German government has already set a very ambitious expansion target: we want to achieve an 80% share of renewable energies in electricity supply by 2050. The SRU report shows that this is feasible.’ On 2 February, the federal Cabinet confirmed solar support and green elec- tricity privilege through early measures on cost containment regarding support for renewable energies. Proposals include a further reduction in the tariff for electricity from solar energy, limiting the so-called green electricity privilege, and restructuring biogas support. The expansion of solar power in Germany continues to be very dynamic. Currently installed photovoltaic capacity in Germany is around 17,000 mega- watts, of which more than 7,000 megawatts were installed last year. In the interests of electricity consumers, this rapid market development must be sup- ported in a flexible way, which is why part of the additional tariff reduction originally planned for 1 January 2012 will be brought forward and become effective on 1 July 2011. For free-standing installations, the reduction will 408 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW take effect on 1 September 2011. A tariff reduction is proposed on the basis of market development in the months of March, April, and May, which means that the reduction can total up to 15 percent by mid-2011, depending on the market development. The so-called green electricity privilege—that is, the privilege granted to electricity from renewables—is becoming increasingly important in terms of cost development. Energy utilities currently do not have to pay the Renewable Energy Sources Act (EEG) surcharge if at least 50 percent of the electricity Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 delivered is from renewable sources and the power delivered was marketed directly rather than receiving the tariff laid down under the EEG. The total amount of electricity supplied is then exempt from the surcharge. The increase in the EEG surcharge since the beginning of the year means it has become disproportionately rewarding to use this green power privilege, triggering wind- fall profits to the detriment of other electricity consumers. The proposal there- fore prescribes that from 1 January 2012, exemption from the surcharge for companies using the green electricity privilege is limited to the level of the 2010 EEG surcharge. The upcoming amendment to the Renewable Energy Sources Act also aims to correct certain unwanted developments resulting from the tariff structure for electricity from biogas. In certain regions, the significant rise in demand for maize as a raw material for biogas installations has led to excessive cultivation of maize with the result that lease prices for agricultural land are rising drastic- ally, thus intensifying competition over land use. Additionally, these monocul- tures can have a negative impact on landscapes and biological diversity. The 2011 Renewables Global Status Report, which was published by the Renewable Energy Policy Network for the Twenty-first Century (REN-21) in July, confirmed that there is a global trend towards renewable energy and high- lights Germany’s leading position in this sector. Renewable energy accounts for some 16 percent of final energy consumption worldwide and for almost 20 percent of electricity consumption in 2010, reflecting continuous growth. Global investment in renewable energy increased by more than a third in 2010, reaching a total of US $211 billion (in 2009, it was US $160 billion). Political targets and support policies continue to be crucial for the expansion of renewable energy. There are at least 191 countries that have adopted relevant national goals or policies (in 2005, there were only fifty-five). Developing and emerging economies are becoming more active in this regard. In 2010, the greatest increase took place in the field of wind energy, followed by hydropower and photovoltaic power. However, 2010 was also the first year in which Europe saw a greater increase in photovoltaic capacity than in wind capacity. The in- stallment of additional photovoltaic capacity in Germany in 2010 exceeded total global additional capacity in 2009, making Germany the world leader in on-grid photovoltaic systems. In 2010, China was the only country to invest more in new COUNTRY / REGION REPORTS 409 power generation capacity from renewable sources than Germany. The third largest investor was the United States. In Germany, in the first half of 2011, renewable energies were able to increase their share in electricity consumption from 17 percent to over 20 percent. Nevertheless, apportionment under the Renewable Energy Sources Act (EEG) for 2012 remains stable. When the EEG surcharge for the coming year was announced, federal Minister of the Environment Ro¨ttgen commented that ‘con- version of our energy supply to renewable energies has been considerably accel- Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 erated by the transformation of our energy system. Stable development of the EEG surcharge, or apportionment, shows that our objective of a further increase to at least 35% by 2020 is feasible and that the measures we have taken to limit costs are effective.’ According to the four German grid operators, the EEG surcharge for 2012 will remain almost unchanged at 3.59 cents per kilowatt hour compared to the current value of 3.53 cents per kilowatt hour. For an average household of four using 3,500 kilowatt hours per year, this amount only equates to additional costs of less than 18 cents per month. On 15 December, the EC Commission presented the Energy Roadmap 2050. It describes different technological and economic approaches to achieving Europe’s climate targets. The Commission calculated a number of different scenarios. Two models that continue on the current path with no additional measures (reference scenarios) fail to achieve the climate targets. Five other analyses describe paths to a low-emission energy supply (de-carbonization scen- arios). These models rely to varying degrees on renewable energy sources, energy efficiency, nuclear power, and CCS technology. All five models achieve the targets for lowering greenhouse gas emissions by around 85 percent. The overall costs of the energy system (fuel, investment, operating costs, and so on) are similar in all five analyses and lower than those of the two reference scen- arios. The basis for the price assumptions in these scenarios is not always clear. For instance, rather low costs are assumed for nuclear power and CCS technol- ogy, while the technology costs for renewable energies are set too high—in practice, these costs are considerably lower than those in the Commission’s scenarios. The federal minister of the environment stated: ‘The Roadmap confirmed that the German government is on the right path with its decision to transform the country’s energy system. We want to shape and implement this transformation in a way that generates incentives for innovation and successful economic de- velopment. I will be discussing this with representatives of industry and various sectors this week. Transforming the energy system not only helps combat cli- mate change, it also benefits the economy, leading to new technologies, indus- trial progress and economic growth, and strengthening our international competitiveness. If Germany can achieve this transformation, other countries will be encouraged to follow suit.’ 410 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW (B) Legislation and Jurisprudence On 14 December, the German government adopted a bill amending the Combined Heat and Power (CHP) Act in an effort to increase the share of combined heat and power plants in the generation of electricity from currently 15 percent to 25 percent by 2020. The draft bill leaves the maximum state funding unchanged at E750 million per year but provides more incentives for investments in heating networks (Wa¨rmenetze), as the Federal Ministry of Economics and Technology points Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 out. In addition, heating storage systems (wa¨rmespeicher) can receive funding for up to 30 percent of the investment costs pursuant to the draft. Furthermore, retrofitting condensing power plants with the combined heat and power technol- ogy is eligible for funding, as the efficiency of plants will be considerably im- proved. The draft bill also improves funding of small CHP units (blockheizkraftwerke) and the modernization of existing CHP plants. Support for CHP plants that are subject to the EC emission-trading scheme as of 2013 shall also rise. The Federal Court of Justice (Bundesgerichtshof (BGH)) recently decided to request a preliminary ruling by the European Court of Justice (ECJ) concerning the legality of an electricity price adjustment clause. In May, the BGH had already requested a preliminary ruling regarding a gas price adjustment clause in a similar case. Unlike in many decisions on gas and electricity price adjust- ment clauses, in which clauses have been declared void by the BGH for various reasons, including a lack of transparency for customers, the BGH recently decided to request preliminary rulings pursuant to Article 267 of the Treaty on the Functioning of the European Union.

(i) Nuclear Energy Exit Following the Fukushima accident in Japan, Germany’s government adopted a reversal of policy, which will see all of the country’s nuclear power plants phased out by 2022. Less than eight months after he signed the nuclear power extension legislation, Federal President Christian Wulff signed the German nuclear energy exit law on 31 July, the thirteenth amendment to the Atomic Energy Act (AtG). The latest energy legislative package, which includes a staggered nuclear phase-out until 2022 and the immediate shut-down of the seven oldest nuclear power plants as well as the Kru¨mmel nuclear power plant, was approved by the Bundesrat on 8 July, after the Bundestag’s vote on 1 July. The shut-down covers Biblis A and B, Neckarwestheim 1, Brunsbu¨ttel, Isar 1, Unterweser, and Philippsburg 1. The AtG amendment reverses the government’s eleventh AtG amendment of late October 2011, which had extended the life span of the seventeen COUNTRY / REGION REPORTS 411 German nuclear power plants by an average of twelve years. The latest amendment even goes somewhat further than the 2002 exit amendment of the AtG, which was adopted under the rule of the then Socialist/Green gov- ernment. Unless one plant is needed to provide back-up power until 2013, the seven plants that were shut down in March under a nuclear power extension moratorium and the closed Kru¨mmel nuclear power plant will not come online again. The remaining plants will be phased out in a staggered manner prior to 2022. Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 The AtG amendment forms part of an energy legislative package with which the government intends to accelerate the transition into an age of renewable energy supply. The package consists of various documents, including the following.

EEG The Act Amending the Legal Framework for the Promotion of the Electricity Generation from Renewable Energy Sources (Gesetz zur Neuregelung des Rechtsrahmens fu¨r die Fo¨rderung der Stromerzeugung aus erneuerbaren Energien), which contains important amendments to the EEG in Article 1, was adopted as amended by the Environment Committee of the Bundestag. The new law incorporates the government’s expansion targets for renewable energy by 35 percent in 2020, by 50 percent in 2030, by 65 percent in 2040, and by 80 percent in 2050. Feed-in tariffs are being raised for offshore wind power, hydro power, and geothermal energy and will be simplified with respect to biomass and modified regarding the decrease of photovoltaic tariffs (new section 20(a), para. 5 of the EEG extends capacity based on additional mid-reduction beyond 2011). The provision on self-consumed solar energy is being extended. The capacity limit of 500 kilowatts is being kept and will not be reduced to 100 kilowatts after the Environment Committee interventions. Other Environment Committee amendments relate to onshore wind power feed-in tar- iffs. They take back cuts of certain tariff bonuses contained in the previous version.

German Energy Act Amendment Parliament passed the Act Amending Energy Law-Related Provisions (Gesetz zur Neuregelung energiewirtschaftsrechtlicher Vorschriften), pursu- ant to the German Energy Act as amended by the Economics Committee. The law aims, inter alia, at strengthening transmission operators by introducing unbundling provisions for transmission systems. In addition, it introduces joint grid expansion planning by all grid operators and shortens the terms that apply to consumers who want to change their energy provider. 412 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW Acceleration of Expansion of Electricity Grid Act (NABEG) The Bundestag adopted the Act on Measures Accelerating the Expansion of the Electricity Grids (Gesetz u¨ber Maßnahmen zur Beschleunigung des Netzausbaus Elektrizita¨tsnetze), which not only includes a new NABEG in Article 1 but also amends other laws as amended by the Economics Committee. Pursuant to the bill, the Federal Network Agency shall be responsible for determining the re- ¨ gional compatibility (raumvertraglichkeit) of extra-high voltage lines that cross Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 the borders of the German federal states (inner-German power lines) or the German state borders (transnational power lines). In certain cases, the agency shall also conduct the plan determination procedure (planfeststellung). The changes are intended to speed up grid expansion, which is deemed to be crucial for energy transition.

Energy-Efficient Renovations of Residential Buildings Act Bundestag passed the Act on Fiscal Measures Promoting Energy-Efficient Renovations of Residential Buildings as amended by the Finance Committee. It shall promote the energy-efficient renovation of buildings older than 1995 by giving tax incentives. Tax privileges are tied to the results of the renovations and require a considerable reduction of the energy consumption, which has to be certified. The expenses can be written off over a period of ten years.

Energy and Climate Fund Act Amendment The Bundestag also passed the Act Amending the Energy and Climate Fund Act as amended by the Budget Committee. As of 2012, revenue related to carbon dioxide emission trading shall be paid into the fund. The money shall be spent on measures accelerating the phase-out of nuclear energy, for the promotion of an environmentally friendly, reliable, and affordable energy supply, and for international climate and environment protection projects. In addition, funding for the development of electric cars, which is limited to E300 million annually as of 2014, shall be paid by the fund.

Strengthening Climate-Friendly Measures in Towns and Municipalities Act The current Green Parliament voted in favour of the Act Strengthening Climate-Friendly Measures in Towns and Municipalities as amended by the Committee on Transport and Building. The law contains a climate protection clause that extends the authority to stipulate legal provisions for the use of renewable energy sources and combined heat and power. In addition, the COUNTRY / REGION REPORTS 413 clause introduces special provisions for the use of wind power and photovoltaic installations attached to, or on top of, buildings.

Offshore Wind Farm Revision The Bundestag adopted the First Act Amending Shipping Laws as amended by the Committee on Transport and Building. The bill amends the Act on the Scope Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 of Duties Concerning Maritime Navigation (Seeaufgabengesetz), which pro- vides the legal basis for the amendment of the Offshore Installations Ordinance (Seeanlagenverordnung). This amendment shall transfer the authority for providing permission for offshore wind power plants to one single federal agency, the Federal Agency for Maritime Shipping and Hydrography, in order to accelerate the process. In November, the E.ON AG lodged a constitutional complaint with the Federal Constitutional Court (BVerfG), alleging an infringement of its funda- mental rights following the uncompensated shut down of some of its nuclear power plants under a three-month moratorium for German nuclear power exten- sion and the following restriction of the operating times as part of the accelerated nuclear power phase-out process. The utility company sees its rights infringed, arguing that the AtG amendment created a legal situation that was even worse for them than the 2002 exit amend- ment of the AtG and certainly worse than the nuclear power extension amend- ment of the AtG, which was adopted under the rule of the current Conservative/ Liberal government in 2010 and then reversed following the Fukushima nuclear power accident. E.ON claims it incurred damages of at least E8 billion, while RWE has not yet quantified its damages. In total, claims for damages could amount to E15 billion, a national newspaper explains. According to the media, an E.ON spokesperson emphasized that the consti- tutional complaint did respect prevailing public opinion that favoured a shift of the energy policy towards renewable energy sources and a withdrawal from nuclear energy. However, the premature shutdown of its nuclear power plants constituted an infringement of its fundamental rights of property and occupa- tional freedom. Without adequate compensation, such actions violated the Constitution. In view of the announcement of claims worth billions of euros in damages by German utilities, the German government is confident that the amendment of the AtG, leading to the immediate shutdown of eight nuclear power plants and the staggered withdrawal from nuclear energy until 2022, is constitutional and that legal action unwarranted. In addition to E.ON, the RWE also lodged a consti- tutional complaint, and Vattenfall was planning to follow suit. 414 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW The BVerfG will only decide on an infringement of basic rights guaranteed under the basic law (grundgesetz, according to the German Constitution). Reportedly, BVerfG’s First Senate will hear the case. It is still unclear when a decision can be expected. BVerfG would not award damages. Such a decision will be left for the civil law courts.

(3) Nature Protection Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 (B) World Heritage At its thirty-fifth meeting in Paris on 25 June, the UN Educational, Social, and Cultural Organization’s (UNESCO) World Heritage Committee decided to in- scribe the ‘ancient beech forests of Germany’ in the World Heritage List. German beech forests now have the same status as sites of global renown such as Yellowstone National Park, the Galapagos Islands, and the Wadden Sea. Germany had applied for the inscription of outstanding ancient beech for- ests in the UNESCO’s prestigious World Heritage List in early 2010. The nominated forests are located in five protected areas: Jasmund National Park (Mecklenburg-Western Pomerania); Serrahn in Mu¨ritz National Park (Mecklenburg-Western Pomerania); Grumsin in the UNESCO biosphere reserve of Schorfheide-Chorin (Brandenburg); Hainich National Park (Thuringia); and Kellerwald Edersee National Park (Hesse). These areas represent the most valuable relics of large-scale natural beech for- ests in Germany. They are an excellent complement to the primeval beech for- ests of the Carpathian Mountains, another UNESCO world heritage property, which was listed in 2007 and now forms a joint property with the German sites. At this meeting, the UNESCO World Heritage Committee also decided to extend the existing German-Dutch world heritage area of the Wadden Sea to include Hamburg National Park. This extension completes the German part of the transboundary world heritage site. The German and Dutch sections of the Wadden Sea, combined with Germany’s Wadden Sea National Parks in Lower Saxony and Schleswig-Holstein, were already included in the World Heritage List as of June 2009. The Wadden Sea is one of the largest wetland areas in the world—a unique habitat where ten to twelve million migratory birds stop over each year. It is also an extraordinarily dynamic natural area. Nowhere else in the world has such a diverse landscape developed under the influence of the tides, and it is still constantly changing today. It provides habitats for around 10,000 species. The Wadden Sea world heritage area stretches for 400 kilometres along the German-Dutch coastline and covers a range of 10,000 square kilometres. The inscription of the Wadden Sea in the World Heritage List is also recognition of the high level of protection that Germany, the Netherlands, and Denmark have COUNTRY / REGION REPORTS 415 jointly been ensuring for years within the framework of their trilateral govern- ment co-operation.

(B) Convention on Biological Diversity (CBD) and Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization (Nagoya Protocol) On 23 June, Germany signed the Nagoya Protocol in New York. The protocol Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 supplements the CBD. For Germany, it is an first important step towards imple- menting this new instrument of international law. The Nagoya Protocol aims to bindingly regulate access to genetic resources worldwide. The focus is, in par- ticular, on access to as yet undiscovered or untapped genetic resources, such as still unknown medicinal plants from the rainforest regions. The Nagoya Protocol will create an internationally reliable framework geared towards facilitating access to such resources for researchers, industries, and other users. At the same time, the protocol provides for fair and equitable sharing of the benefits arising from the utilization of these resources between users and the countries of origin. For this purpose, users and the countries of origin will mutually agree on binding benefit-sharing conditions for both sides and thus prevent so-called bio-piracy at the same time. This could mean profit sharing, sharing of research results, or sharing revenues from licenses. The Nagoya Protocol also provides for the protection of so-called traditional knowledge. Traditional knowledge associated with genetic resources held by indigenous communities must only be accessed with prior and informed consent or approval and with the involve- ment of these communities in benefit sharing. The protocol is the result of years of international negotiations, and it was adopted at COP-10 to the CBD, which was held in Nagoya, Japan, in October 2010. Germany was joined by other signatories—the EC and other EC member states. Signing constitutes the starting point of a complex implementation pro- cess, including the transposition of the protocol’s commitments into German or EC legislation. The protocol will enter into force three months after it is ratified by fifty countries.

(C) Species’ Protection COP-10 to the Convention on Migratory Species of Wild Animals (CMS) was conducted in Bergen, Norway, in November. Several species, such as the manta ray and the Argali wild sheep, were added to the appendices of the CMS, and the Saker falcon and red-footed falcon were moved to the most stringent cat- egory of protection. Germany and other countries, as well as the EC, also signed agreements on the conservation of sharks and raptors. A fundraising gala co-organized by Germany raised E6 million for the conservation of threatened species. The meeting further adopted a resolution put forward by Germany on the protection of whales and dolphins against underwater noise. 416 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW The conference was held by the CMS, which works under the umbrella of the United Nations and has its Secretariat on the UN campus in Bonn. This con- vention protects animals that regularly migrate over long distances between their breeding and feeding grounds and cross state borders in the process—for ex- ample, migratory whales, sharks, storks, cranes, marine turtles, and sturgeons. The signing of the agreement on the conservation of sharks is part of the German government’s strategy to advocate the protection of threatened shark species in all relevant international forums. The protection regime for whales, Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 migratory birds, and sharks also includes German species. For example, the shark memorandum covers the basking shark, which can be more than ten metres long and occasionally passes by the coast of Helgoland, and the spiny dogfish and the porbeagles, which are also found in the North Sea and are almost extinct. In Bergen, Germany put forward a proposal, via the EC, for a resolution on the protection of whales and dolphins against underwater noise, which was adopted by the meeting. Marine noise is caused by various activities, including the driving of piles for the foundations of wind turbines or by shipping traffic. This can be harmful to the hearing of whales and dolphins. The proposal, which recommends the international use of noise reduction techniques, was met with broad approval. The conference also acknowledged Germany’s pioneering role in preventing the electrocution of birds along power lines. In close co-operation with power companies and nature conservation organizations, electricity transmission lines and towers are being made safe for birds. Naturschutzbund Deutschland (Nature and Biodiversity Conservation Union) presented the new German Verband der Elektrotechnik (VDE) application guide that was developed on the basis of nature conservation requirements to mitigate the dangers of medium-voltage power lines. RWE Rhein-Ruhr presented a program under which markers are being placed on high-voltage power lines to allow birds to see and avoid these lines, even in bad weather.

(4) Nanotechnology The NanoKommission, established by the Federal Environment Ministry in 2006, concluded its work in 2011. The NanoKommission had the task of dis- cussing the opportunities and risks of nanotechnologies and formulating recom- mendations to the federal government regarding the responsible use of these technologies. In the NanoDialogue, 100 representatives from the scientific world, the business community, environmental, consumer, and women’s asso- ciations, trade unions, churches, ministries, and authorities jointly undertook to: provide input to the public debate on the opportunities and risks of using nanotechnologies; identify areas in which nanotechnologies can make a contribution to sustain- able innovation; and develop instruments for a responsible use of nanomaterials. COUNTRY / REGION REPORTS 417 The commission concluded that nanotechnology shows great promise but that too little is still known about its potential impacts on the environment and human health. It is stepping up research into risks and establishing a European nano- product register. The purpose of such a register would be to allow authorities to trace nanomaterials in products and, thus, enable them to enforce the polluter pays principle. The Federal Research Ministry has increased the budget for research into risks, and the Federal Ministry of the Environment advances re- search and risk minimization for the most relevant nanomaterials in the frame- Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 work of the Environmental Research Plan and its involvement in various programs under the Organisation for Economic Co-operation and Development.

(5) Noise On 15 February, the German cabinet adopted a draft act presented by the Federal Ministry on the Environment on special provisions for noise caused by children at childcare centres and play areas. Minister of Environment Ro¨ttgen com- mented: ‘This act, which establishes special provisions for noise caused by children, sends a clear signal in support of a child-friendly society. A certain degree of tolerance for such noise can be expected from society. It is not ac- ceptable to treat noise caused by children in the same way as noise caused by industrial installations.’ The aim of this act is to further develop existing noise protection law. An amendment to the Federal Emmission Control Act will ensure that noise caused by children at childcare centres, play areas, and at other such establishments is generally not classified as having ‘harmful effects on the environment.’ Additionally, when assessing the impact of such noise, the emission limit values and target values such as those applicable to industrial installations and sport centres must not be applied as they do not reflect the tolerance that can be expected regarding noise caused by children. Furthermore, the Federal Ministry of Transport, Building and Urban Development intends to amend the Federal Land Utilization Ordinance (Baunutzungsverordnung) as part of the upcoming revision of building planning law. The aim is to permit childcare establishments in purely residential areas in order to meet local demands.

(6) International Environmental Law In February, the UN Global Ministerial Environment Forum ended with a clear commitment to sustainable economics and the fundamental reform of UN or- ganizational structures. Federal Minister of the Environment Ro¨ttgen stated that UN environmental reform is needed and that the United Nations requires enhanced structures for international environmental policy. He further stressed: ‘The long overdue restructuring of national economies worldwide towards a green economy will only succeed if we restructure the United Nations in the field of environment. The discussions in Nairobi showed that it is now only a 418 YEARBOOK OF INTERNATIONAL ENVIRONMENTAL LAW question of agreeing on “how” to structure this reform, not “whether” the reform is needed. I am convinced that only a UN Environment Organisation with the same status as the World Health Organisation can help the concept of sustain- able economics achieve a global breakthrough.’

(7) Access to Justice In a judgment issued 12 May, the ECJ gave environmental protection organiza- Downloaded from https://academic.oup.com/yielaw/article/22/1/400/1659423 by guest on 01 October 2021 tions wider access to justice. According to the ruling, the German law on sup- plementary provisions governing actions in environmental matters under EC Directive 2003/35 Providing for Public Participation in Respect of the Drawing up of Certain Plans and Programmes Relating to the Environment (Umwelt-Rechtsbehelfsgesetz), which entitles recognized environmental protec- tion organizations to a right of access to the courts, does not fully implement the provisions of European law. Germany now has to adapt the law accordingly. Until the amendment enters into force, recognized environmental protection organizations can directly invoke European law to bring an action before the courts. Federal Minister of the Environment Ro¨ttgen welcomed the legal clarity that today’s judgment provides: ‘It is more and more evident that public and NGO participation in large-scale infrastructure projects from an early stage ultimately improves acceptance and chances of implementation. We should keep that in mind when implementing the judgment.’According to the ECJ, Germany unlaw- fully restricts environmental protection organizations from achieving access to justice. Up to now, recognized environmental protection organizations could only bring actions against the infringement of environmental law provisions in cases that would also entitle citizens to go to court (so-called ‘subjective rights’). Hence, no legal remedy is available today when provisions that protect the environment itself have been infringed, as is the case with preventive provisions in clean air legislation and with most water protection legislation. According to the ECJ, however, European law calls for a wider access to justice in environ- mental matters. According to the judgment, environmental protection organiza- tions must have at least the right to rely on all environmental provisions based on European law that are relevant to the authorization of a project. The case had been referred to the ECJ by the Oberverwaltungsgericht (Higher Administrative Court) of North Rhine-Westphalia. Proceedings initiated by the North Rhine-Westphalian branch of Friends of the Earth in Germany for annulment of the authorization granted for the construction of a coal-fired power station in Lu¨nen are pending before that court.

Christina Voigt doi:10.1093/yiel/yvs145