Activities subject to permit
Which activities require an environmental permit and how are they classified for such purposes?
Any activities that could affect the environment require planning permission or permits and notifications. Planning permission covers complex infrastructure projects of all types (eg, road and rail projects, waterways, harbour or mining installations and high-voltage electricity lines), while permits or notifications under the Emissions Control Act regulate a variety of activities that are likely to cause environmental risks or nuisances for nearby residents or the general public. Planning permission and permits are integrated, meaning that they generally regulate all environmental concerns in one decision. However, environmental requirements are a cross-sectoral issue that must be considered in many other cases (eg, in building permits).
Which authority issues permits?
Environmental permits are issued at all administrative levels, but usually by district or municipal authorities. However, the order to phase out German nuclear plants was issued by the chancellor.
What are the procedural and documentary requirements to obtain a permit?
The requirements to obtain a permit depend on the specific matter being applied for and are defined by the applicable laws. It is recommended to contact the relevant authorities at an early stage of the approval process.
Do any permit fees apply?
Fees are usually charged for permits depending on the complexity of processing the application for the relevant administration and its importance and value for the applicant.
Validity period and renewal
What is the validity period for permits and how can they be renewed?
As a rule, permits have an unlimited validity period. However, permits under water-related laws are time limited, as waterways belong to the public and the use of this resource must be regularly assessed. Further, under the national implementation of the EU Industrial Emissions Directive (2010/75/EC), permits must be regularly reviewed. The relevant industry sector must modify its installations to the relevant standards within four years after their publication.
Can permits be transferred? If so, what procedure applies?
Permits relating to an installation, real estate or a building (ie, object-related permits) are transferred together with a company or asset. However, permits relating to the reliability or a specific quality of an individual (ie, subjective permits, such as a concession for a restaurant) generally cannot be transferred.
Are permit decisions subject to appeal? If so, what procedure applies?
Permits or onerous conditions within them can be challenged before the administrative courts by operators or third parties within one month after publication. The administrative courts examine the case ex officio. The chances of a successful action lodged by non-governmental organisations against permit decisions have substantially increased based on EU legislation and recent European Court of Justice rulings.
What are the consequences of violating permit rules and decisions?
The environment authority may undertake site visits, take samples or, in a worst-case scenario, order the partial shutdown of a permitted activity. If there is no threat of hazard, permit holders will be requested to set out their views on the issue. Administrative fines can also be imposed and in serious cases, permit holders may be criminally liable.
Environmental impact assessments
Projects subject to assessment
What projects require a preliminary environmental impact assessment (EIA)?
The construction, modification and operation of projects listed in the annex of the EIA Act or relevant state laws (eg, projects affecting public roads) that could have an adverse effect on the environment require an EIA. These projects include:
- renewable energy projects;
- sugar, paper, tile or steel production;
- the breeding of hens or pigs exceeding certain numbers;
- holiday complexes; and
- gravel and sand pits.
A distinction is made between projects that require a mandatory EIA (eg, a wind farm with at least 20 wind turbines over 50 metres high) and projects for which only an EIA ‘screening’ must be performed regarding a location or an individual case. Several small projects may fall within the scope of the EIA requirement in order to avoid so-called Salami tactics. During an EIA screening, a project’s environmental impact is assessed and a decision taken on whether a fully-fledged EIA is required. An EIA can be a trigger for opposing actions by non-governmental organisations (NGOs), for which there are many European Court of Justice (ECJ) precedents, thus substantially broadening the chance of a successful action.
Scope of assessment
What environmental factors and risks fall within the scope of the impact assessment report?
An EIA examines the effects that a project could have on the relevant:
- population (especially human health);
- land, soil and water;
- air quality;
- material assets; and
- cultural heritage.
Further, an EIA assesses the interaction between these factors. Since 2014 the risks of potential accidents or catastrophes and the retro-effects of projects on the climate must also be evaluated. For example, the construction of a large building in an urban area that further seals soil may result in more heat stress. This effect must be counteracted by creating compensation (eg, green and wasteland) areas, which cool the air at night.
Who conducts assessments?
An EIA is integrated into the permit procedure. The authority that grants a project permit is, therefore, also competent to perform an EIA. Where several state authorities are competent, a lead authority must be determined. In the case of the cross-border impact of a project, EIAs are performed by all countries involved with mutual consultation procedures established based on the Convention on Environmental Impact Assessment in a Transboundary Context for the relevant authorities and the general public. This was the case for the Nord Stream gas pipeline project, the Fehmarn Belt Fixed Link and the bi-national road and railway projects.
Are the results of impact assessments publicly available?
The project developer prepares and submits the relevant EIA documentation, which is often voluminous. A summary of the report and selected further documentation must be made available to the general public for hearing purposes and stakeholders may request access to any missing documentation. The environmental authority informs the public of:
- details of the project;
- the requirement for an EIA;
- the location and duration of the consultation period;
- the deadline for submitting statements on the project; and
- the possible basis for subsequent legal redress.
The relevant authority must decide whether to approve a project based on comprehensive reasoning and inform the public of the decision in its official publications, local newspapers and online.
Can the results of an impact assessment be contested? If so, what procedure applies?
Stakeholders may contest the results of an EIA. Based on the ECJ decision in Altrip, environmental NGOs can now contest the results and methodology of EIAs in court. This possibility was recently extended to individual citizens. Arguments must be brought forward in an admissible administrative court proceeding.