Nicolas Brennecke Die gerichtliche Kontrolldichte im Umweltrecht

About this book

The introduction of discretionary powers (Beurteilungsspielräume) of public authorities to reduce the density of judicial review is a highly relevant issue in German environmental law. It concerns the effective legal protection and fundamental questions regarding the relationship between the three branches of government. In nature conservation law, the justification of discretionary powers and sub-statutory standardisation are the subject of controversial debate.

In German procedural environmental law, the introduction of public interest litigation by environmental NGOs in the Aarhus Convention, the implementing EU directives and the German Environmental Appeals Act (Umweltrechtsbehelfsgesetz) has significantly expanded the right to sue. Traditionally, in German procedural administrative law, the right to sue is restrictively linked to the infringement of a subjective public right (subjektives öffentliches Recht) at the level of the admissibility of a lawsuit. However, at the level of the merits of a lawsuit, the density of judicial review is generally comprehensive. This raises the question of whether the expansion of the right to sue may correspond to a reduction in the density of judicial review. Against this background, this thesis examines whether the introduction of discretionary powers in public interest litigation is compatible with the provisions of the Aarhus Convention and German constitutional and EU law.

In German substantive environmental law, discretionary powers have long been widely recognised in nuclear and genetic engineering law and in preliminary environmental impact assessments (EIA). However, in nature conservation law, discretionary powers are justified in different ways by the Federal Administrative Court (Bundesverwaltungsgericht) and the Federal Constitutional Court (Bundesverfassungsgericht). In this regard, the thesis analyses whether these types of discretionary powers satisfy constitutional requirements and which type of discretionary power under nature conservation law is dogmatically preferable.

With regard to nature conservation law, the Federal Constitutional Court has also ruled that the legislature must at least ensure standardisation at the sub-legislative level. The thesis therefore examines whether the required standardisation should take a binding or a non-binding form and which form of regulation would be recommended in the case of binding sub-legislative standardisation.