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A policy analysis of waste management legislation in Canada and Germany with a focus on the polluter… Willenbrock, Christel 1995

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A POLICY ANALYSIS OF WASTE MANAGEMENT LEGISLATION IN CANADA AND GERMANY WITH A FOCUS ON THE POLLUTER PAYS PRINCIPLE by CHRISTEL WILLENBROCK Erstes Juristisches Staatsexamen, Universitat Hamburg, 1994 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTERS OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA September 1995 © Christel Willenbrock, 1995 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholariy purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of ( - M C A ) The University of British Columbia Vancouver, Canada Date DE-6 (2/88) Abstract My thesis critically examines the legal approach to waste management that Canada and Germany have taken over the past twenty years. Waste management offers an excellent paradigm for understanding pollution issues in general, as waste disposal, in one form or another, lies at the root of all pollution. As a highly visible environmental problem, waste has earned a great deal of attention from environmental policy and law makers. Waste management law represents a "microcosm" of environmental law, and thus offers a particularly suitable context for analysing the development of modern environmental policy. Environmental degradation is caused by the aggregated decisions of all members of society. This implies that everyone must be involved in the effort to reestablish the vital link between the eco-system and the economy. Some argue that environmental problems result from market failure and that polluters must be given an incentive to consider environmental issues as a cost factor in their decision-making. Since its development in the 1970s in the economic context, the polluter pays principle has become a basic element of environmental policy, serving as an instrument to determine who should bear responsibility for environmental protection. In my thesis, I examine how this concept has been integrated into national policies. In particular, I analyse the implementation of the principle in the context of contaminated sites remediation and of recycling, where new concepts of environmental responsibility have emerged. The polluter pays principle is a promising concept for finding a solution to certain environmental problems. If the necessary ecological reforms are to take place, however, law and policy require a moral dimension to change people's attitude towards their environment. Environmental policy cannot be left to the uncertainties of profit signals in the market place, as a strategic approach in both space and time mandates an active role for government. The aim of this thesis is to point out some of the ways in which Canadian and German environmental policy, as implemented in waste law, has tried to cope with the complex issue of environmental protection and, in particular, whether and how a new concept of individual responsibility for the environment has gained recognition. -iv-Table of contents ABSTRACT II LIST OF FIGURES IN THE ANNEX X GLOSSARY: ABBREVIATIONS OF GERMAN MATERIAL XII ACKNOWLEDGEMENT XIV CHAPTER 1: INTRODUCTION TO THE TOPIC 1 I. PROBLEMS AND BENEFITS OF THE COMPARATIVE ANALYSIS 8 II. COMPARABILITY OF THE LEGAL SYSTEMS 11 III. OUTLINE OF THE THESIS 14 CHAPTER 2: INTRODUCTION TO THE POLICY OF ENVIRONMENTAL PROTECTION AND WASTE MANAGEMENT AS FRAMEWORK FOR THE ANALYSIS OF CANADIAN AND GERMAN LAW 17. I. BACKGROUND OF A MODERN ECOLOGICAL APPROACH TO ENVIRONMENTAL AND WASTE MANAGEMENT POLICY 17 II. PRINCIPLES FOR A MODERN ENVIRONMENTAL POLICY AND LAW 29 A. THE NOTION OF SUSTAINABLE DEVELOPMENT AND ITS IMPLICATIONS FOR ENVIRONMENTAL AND ECONOMIC POLICY 31 1. INTEGRATED ENVIRONMENTAL MANAGEMENT 33 2. PRECAUTIONARY MANAGEMENT 35 A) PROTECTION PRINCIPLE AND RISK MINIMIZATION PRINCIPLE 37 B) THE "RESOURCES FOR THE FUTURE-ASPECT" OF THE PRECAUTIONARY PRINCIPLE 40 C) IMPLICATIONS OF THE PRECAUTIONARY PRINCIPLE FOR WASTE MANAGEMENT: THE HIERARCHY OF THE THREE R'S 41 (1) PREVENTION OF WASTE 42 (2) REUSE OF WASTE 43 (3) MATERIAL AND ENERGY RECYCLING 44 - V -(4) RESIDUAL DISPOSAL 46 3. CRADLE-TO-GRAVE PRINCIPLE 47 B. THE ACTORS IN ENVIRONMENTAL MANAGEMENT: INTRODUCTION TO THE POLLUTER PAYS PRINCIPLE •. 48 1. HISTORICAL BACKGROUND OF THE POLLUTER PAYS PRINCIPLE 50 2. SYSTEM-VARIATIONS OR VERSIONS OF THE PPP 53 3. THE SCOPE OF THE PPP - THE PPP AS A COST AND LIABILITY ALLOCATION INSTRUMENT 54 4. THE PERSON OF THE POLLUTER UNDER A CONCEPT OF ENVIRONMENTAL RESPONSIBILITY 58 5. COOPERATIVE ENVIRONMENTAL MANAGEMENT 61 6. CONCLUDING REMARKS ON THE PPP AS AN INSTRUMENT TO IMPLEMENT ENVIRONMENTAL RESPONSIBILITY 62 CHAPTER 3: THE DEVELOPMENT OF GERMAN AND CANADIAN WASTE MANAGEMENT LEGISLATION AND POLICY 65 I. GERMANY 65 A. BACKGROUND 66 B. BASIC FEATURES OF THE WASTE DISPOSAL ACT OF 1972 69 1. DEFINITION OF WASTE 70 2. ORGANIZATION OF WASTE MANAGEMENT 71 3. MONITORING OF WASTE DISPOSAL 72 4. CONTROL OF THE AMOUNT OF WASTE 72 5. EVALUATION 73 C. REGULATION OF INDUSTRIAL BY-PRODUCTS WASTE UNDER THE FEDERAL ACT ON PROTECTION FROM IMMISSIONS 76 D. PROGRAM ON WASTE MANAGEMENT OF 1975 77 E. IMPLEMENTATION OF THE PROGRAM OF WASTE MANAGEMENT UNTIL 1986 78 -VI-F. ACT ON THE AVOIDANCE AND DISPOSAL OF WASTE OF 1986 (ABFG) 81 1. THE DEFINITION OF WASTE 82 2. THE PRECAUTIONARY PRINCIPLE AND THE HIERARCHY OF THE THREE R'S 83 A) THE PRIORITY OF RECYCLING AND RECOVERY ACCORDING TO § 3 II S3 ABFG 84 B) RANKING OF MATERIAL AND ENERGY RECOVERY UNDER § 3 II ABFG 86 3. EXTENSION OF THE ORDINANCE POWER TO IMPLEMENT THE THREE R'S UNDER § 14 ABFG 86 4. EVALUATION OF THE POLICY UNDERLYING AND IMPLEMENTED IN THE ACT OF 1986 90 G. THE DEVELOPMENT OF WASTE AND RELATED ENVIRONMENTAL LAW FROM 1986 TO 1994 ". 94 H. THE CLOSED CYCLE ECONOMY AND WASTE MANAGEMENT ACT OF 1994 99 I. TERMINOLOGY 100 2. BASIC PRINCIPLES AND OBLIGATIONS UNDER THE KRWG 102 3. RESPONSIBILITY FOR WASTE MANAGEMENT AND PRODUCT RESPONSIBILITY 106 4. EVALUATION AND ANALYSIS OF THE LEGISLATION 108 II. CANADA 110 A. THE FIRST GENERATION OF CANADIAN WASTE MANAGEMENT LAW BEFORE THE 1970S - POLLUTION ABATEMENT LEGISLATION Il l B. POLLUTION CONTROL LEGISLATION BY THE BEGINNING OF THE 1970S: THE POLLUTION CONTROL ACT OF BRITISH COLUMBIA 114 C. LITTER ACT 118 D. CHANGING ATTITUDES AROUND THE BEGINNING OF THE 1980S 119 E. REGULATION OF WASTE UNDER THE WASTE MANAGEMENT ACT OF 1982: INTRODUCTION 120 1. THE LEGISLATIVE SCHEME ESTABLISHED UNDER THE WASTE MANAGEMENT ACT 120 2. 'BOTTLE BILL" PROVISIONS OF THE WMA, WITH A REFERENCE TO ONTARIO LEGISLATION 124 •VI1-3. TOXIC WASTE LEGISLATION UNDER THE WASTE MANAGEMENT ACT AND THE ENVIRONMENTAL MANAGEMENT ACT 127 4. EXCURSUS: ONTARIO'S "SPILLS BILL" 131 F. THE TREND TOWARDS INTEGRATED AND PREVENTIVE POLLUTION CONTROL OF THE 1980S 133 1. AMENDMENTS TO THE WASTE MANAGEMENT ACT 134 2. RECENT PROVINCIAL AND FEDERAL LEGISLATIVE EFFORTS ON ENVIRONMENTAL IMPACT ASSESSMENT AND WASTE SHIPMENT INTEGRATED ENVIRONMENTAL PROTECTION 138 G. SUMMARY AND EVALUATION OF THE EVOLUTION OF CANADIAN WASTE MANAGEMENT LAW 140 CHAPTER 4: CASE STUDY ON THE IMPLEMENTATION OF THE PPP IN LAW ON CONTAMINATED SITES REMEDIATION 145 I. INTRODUCTION TO THE CANADIAN LAW AND POLICY 148 A. THE PRESENT CONTAMINATED SITES LEGISLATION UNDER THE WASTE MANAGEMENT ACT 151 B. CONTAMINATED SITES REMEDIATION UNDER BILL 26 156 1. THE LIABILITY SCHEME UNDER BILL 26 162 A) MINOR CONTRIBUTORS 163 B) OWNER LIABILITY 164 C) DEFENSES AGAINST LIABILITY 167 D) OPERATOR LIABILITY, WITH A FOCUS ON CORPORATE OFFICERS, DIRECTORS AND SHAREHOLDERS 168 (1) CORPORATE PARENTS' LIABILITY FOR THEIR SUBSIDIARY 178 (2) LIABILITY OF PARENT CORPORATIONS DUE TO PIERCING THE CORPORATE VEIL 179 (3) DIRECT LIABILITY OF PARENT CORPORATIONS AS OWNERS OR OPERATORS 182 E) LIABILITY OF SECURED CREDITORS 187 F) LIABILITY OF PRODUCERS, TRANSPORTERS AND THOSE ARRANGING FOR TRANSPORT 194 V1H 2) CONCLUSION 197 II CONTAMINATED SITES LEGISLATION IN GERMANY 204 A. DEFINITION OF TERMS AND INTRODUCTION TO THE LEGAL FRAMEWORK 205 B. REMEDIATION OF CONTAMINATED SITES PURSUANT TO THE GENERAL LANDER POLICE LAW 207 1. LIABILITY FOR THE REMEDIATION OF ALTLASTEN - THE CIRCLE OF POTENTIALLY RESPONSIBLE PERSONS 211 A) LIABILITY OF OPERATORS OF DISPOSAL FACILITIES 213 (1) CAUSATION OF DANGER AS PREMISE FOR HANDLUNGSSTORER-LIABJLITY 214 (2) APPLICATION OF THE THEORIES OF UNLAWFUL CAUSATION/ CAUSATION UNDER VIOLATION OF SOCIAL DUTIES TO OPERATOR'S LIABILITY 216 (3) RESTRICTION OF LIABILITY IN CASES OF UNKNOWN RISK 220 (4) RESPONSIBILITY OF THE STATE AND STATUTORY DEFENSES AS LIMITS TO THE IMPOSITION OF LIABILITY 221 (5) LIMITATION OF LIABILITY DUE TO THE CONSTITUTIONAL PROHIBITION OF RETROACTIVE LEGISLATION 224 A) OWNERS AND POSSESSORS OF SITES 226 B) HANDLUNGSSTORER LIABILITY OF OWNERS 229 C) WASTE PRODUCER'S LIABILITY 229 D) TRANSPORTERS OF WASTE 232 E) LENDERS, RECEIVERS AND TRUSTEES 232 F) LIABILITY OF RECEIVERS AND TRUSTEES 234 G) CORPORATE LIABILITY 235 2. ALLOCATION OF LIABILITY AMONG MULTIPLE PARTIES 238 3. CLAIMS OF RECOURSE BETWEEN POLLUTERS OF A SITE 240 4. CONCLUSION TO THE LIABILITY SCHEME 241 5. MODELS OF GROUP-RESPONSIBILITY BASED ON TAXATION OF WASTE PRODUCERS 243 -ix-6. COOPERATIVE MODELS 245 C. REGULATION OF CLEAN-UP RESPONSIBILITY UNDER THE DRAFT PROPOSAL FOR THE ACT ON THE PROTECTION OF THE SOIL 246 III. CONCLUSION : 250 CHAPTER 5: CASE STUDY ON STEWARDSHIP PROGRAMS IN THE FIELD OF WASTE RECYCLING 259 I. THE CANADIAN APPROACH: THE NATIONAL PACKAGING PROTOCOL (NAPP) 261 A. THE CANADIAN INDUSTRY PACKAGING STEWARDSHIP INITIATIVE - "CIPSI" 266 B. CONCEPT OF THE CIPSI STEWARDSHIP MODEL 267 II. THE "GREEN DOT" - THE GERMAN PACKAGING ORDINANCE 272 III. EXPERIENCES WITH THE GREEN DOT PROGRAM 280 IV. EVALUATION OF THE STEWARDSHIP MODELS SET OUT IN THE CIPSI PROPOSAL AND THE PACKAGING ORDINANCE 288 A. PRODUCT STEWARDSHIP AND THE POLLUTER PAYS PRINCIPLE 288 B. PROMOTION OF THE THREE R'S HIERARCHY 295 V. CONCLUSION TO THE CASE STUDY 305 CHAPTER 6: CONCLUSION 310 BIBLIOGRAPHY 319 ANNEX 331 -X- ' List of figures in the Annex FIGURE 1: THE AMOUNT OF SOLID WASTE (IN MILLIONS OF TONNES) GENERATED IN CANADA IN 1988, BY PROVINCE AND TERRITORY 332 FIGURE 2: COMPOSITION OF WASTES GENERATED IN BRITISH COLUMBIA 332 FIGURE 3: MUNICIPAL SOLID WASTE COMPOSITION 332 FIGURE 4: CURRENT AND TARGET RECOVERY AND SOURCE REDUCTION RATES FOR BRITISH COLUMBIA 334 FIGURE 5: PLASTICS USE 334 FIGURE 6: RESIN USE IN PACKAGING 334 FIGURE 7: PACKAGING WASTE IN CANADA 335 FIGURE 8: THE AMOUNT OF PACKAGING MATERIAL (IN TONNES) THAT WAS USED IN CANADA IN 1988, INCLUDING THE AMOUNTS THAT WERE RECYCLED AND REUSED 335 FIGURE 9: ESTIMATED 1992 PACKAGING RECYCLING RATES FOR CANADA 336 FIGURE 10: PLASTIC PACKAGING RECYCLING RATES 336 FIGURE 11: HAZARDOUS WASTES ACROSS CANADA 337 FIGURE 12: FEDERAL AND PROVINCIAL/TERRITORIAL COMMITMENTS UNDER THE NATIONAL CONTAMINATED SITES REMEDIATION PROGRAM 338 FIGURE 13: PRODUCTION OF DOMESTIC WASTE FROM HOUSEHOLDS, SMALL ENTERPRISES AND COMMERCIAL SERVICES 339 FIGURE 14: AMOUNT OF WASTE IN THE MANUFACTURING INDUSTRY 339 FIGURE 15: METHOD OF WASTE DISPOSAL 340 FIGURE 16: "SPECIAL WASTE" FROM INDUSTRY 340 FIGURE 17: THE COMPOSITION OF HOUSEHOLD WASTE IN HAMBURG 1986 341 FIGURE 18: CONSUMPTION OF PACKAGING MATERIALS 1991 341 -xi-FIGURE 19: CHANGES IN PACKAGING CONSUMPTION, 1991 THROUGH 1995 342 FIGURE 20: CONSUMPTION OF PACKAGING 1991 342 FIGURE 21: REUSABLE PACKAGING OF BEVERAGES 342 FIGURE 22: IMPLIED RECYCLING RATES UNDER THE PACKAGING ORDINANCE 343 FIGURE 23: CONTAMINATED SITES IN GERMANY 343 FIGURE 24: THE AVERAGE COMPOSITION OF HOUSEHOLD WASTE IN DEVELOPED ECONOMIES 344 FIGURE 25: ENVIRONMENTAL BENEFITS DERIVED FROM SUBSTITUTING SECONDARY MATERIALS FOR VIRGIN RESOURCES 344 FIGURE 26: THE CALORIFIC VALUE OF MUNICIPAL WASTE 344 •xi> Glossary: Abbreviations of German material AbfG (1972 and 1986) Abfallgesetz of 1972 and of 1986 BB Betriebsberater BImSchG Bundesimmissionsschutzgesetz BMU Bundesministerium flir Umwelt, Naturschutz und Reaktorsicherheit BT-Drs. Bundestagsdrucksache BR-Drs. Bundesratsdrucksache BVerfGE Entscheidungen des Bundesverfassungsgerichts BVerwGE Entscheidungen des Bundesverwaltungsgerichts DOV Die Offentliche Verwaltung Einleitung Introduction FAZ Frankfurter Allgemeine Zeitung GewArch Gewerbearchiv KrWG Kxeislaufwirtschafts und Abfallgesetz of 1994 LAI Landerarbeitsgemeinschaft Immissionsschutz NVwZ Neue Zeitschrift fur Verwaltungsrecht NJW Neue Juristische Wochenzeitung OVG Oberverwaltungsgericht Rn. Randnummer (margin number) RSU Rat der Sachverstandigen fur Umweltfragen Tz. Teilzeichen (margin number) UPR Umwelt- und Planungsrecht X I H VGH Verwaltungsgerichtshof VwVfG Verwaltungsverfahrensgesetz ZIP Zeitschrift fur Wirtschaft xiv Acknowledgement There are many people who contributed, through their help and support, to my thesis, all of whom I'd like to thank in this place. In particular I'm indebted to Karin Mickelson, who was a wonderful supervisor and whose support through the 'bps and downs" of the thesis, in particular against the end, I very much appreciate. I would also like to thank Jutta Brunnee, for that she was willing to become my second supervisor so briefly before the end of the paper and for her help in finishing the thesis. I very much enjoyed being in Vancouver and studying at U.B.C, which offered the experience of an approach towards legal studies quite different to my previous studies in Germany. All this was only possible through the support and encouragement of my parents, whom I, last, but not least, would like to thank a lot for this as well. Chapter 1: Introduction to the topic "This is a story about four people: Everybody, Somebody, Anybody, and Nobody. There was an important job to be done and Everybody was asked to do it. Everybody was sure Somebody would do it. Anybody could have done it, but Nobody did it. Somebody got angry about that because it was Everybody's job. Everybody thought Anybody could do it, but Nobody realized that Everybody wouldn't do it. It ended up that Everybody blamed Somebody when actually Nobody asked Anybody."1 Canada and Germany, like other highly industrialized countries, are faced with a looming waste crisis. For example, British Columbia (B.C.), the fastest growing Canadian province, has a waste production rate of 20.5 million tons per year, equaling a per capita rate of approximately 1.8 kg per day which currently increases by about 1% yearly.2 Meanwhile, only 2% of B.C.'s territory is suited to be used as landfills and the majority of existing landfills will be filled by the end of the century.3 In addition to geological, geographical and Source: unknown, from Frank J. Dietz, Udo E. Simonis & Jan van der Straaten, eds., Sustainability and Environmental Policy (Berlin: edition sigma, 1992), introduction [hereinafter Dietz et al and author]. 2From 1971 to 1991 the number of people living and working in the GVRD grew from 1.08 to 1.68 million, accompanied by an increase of waste production by 1%/year. During that period the amount of garbage produced doubled, while the GVRD lost six landfills, and many landfills used today will be filled within this decade. The expected population growth for British Columbia from -3,3 million people in 1992 to -4,9 million in 2016 indicates that the waste stream is likely to rise in the future (for the data see British Columbia, State of the Environment Report for British Columbia (Victoria, 1994) at 7; Recycling Council of British Columbia (RCBC): Reiterate April 1993 at 3; Peat Marwick Stevenson & Kellog and the Recycling Development Corporation for the Ministry of Environment B.C., Market Development Plan for Recyclable Materials, (Victoria, April 1992) at 1). 3Peat Marwick Stevenson & Kellog, ibid; RCBC, ibid..For the similar German situation see Bernd Bender & Reinhard Sparwasser, Umweltrecht: Grundziige des offentlichen Umweltschutzrechtes, 2d. ed. (Heidelberg: CF. Muller, 1990) atRn. 824-829, 841. 1 environmental factors, the construction of new garbage sites is hampered by the so called NIMBY-syndrome, which is well-known to German politicians and municipalities as well: the attitude of "not in my backyard" towards waste treatment facilities. As a reaction to these constraints, waste management legislation and policy have been changing, especially over the last two decades. My thesis will examine the evolution of modern waste management policy in Canada and Germany. As a highly visible environmental problem, waste has earned a great deal of attention from environmental policy and law makers. Waste management offers an excellent paradigm for understanding pollution issues in general, as waste disposal, in one form or another, lies at the root of all pollution. Thus, waste management law represents a "microcosm" of environmental law and offers a particularly suitable context for analysing the development of modern environmental policy. Since environmental degradation became an issue of public policy in the 1960s, the approach taken towards environmental management has shifted away from a focus on the "end-of-the-pipe." This approach concentrated on short-term and local impacts of pollution, exemplified for instance by the building of higher smoke-stacks to divert air-pollution and the simple dumping of waste in unsecured landfills, such as old gravel pits.4 Later, it became apparent that the reactive focus on the end-of-the-pipe only delayed or transferred pollution problems, or even created new hazards, such as the toxic leachage from landfills seeping into drinking-water supplies. A modern policy concept of environmental management has 4See David Estrin & John Swaigen, Environment on trial: a guide to Ontario environmental law and policy, 3d. ed. (Toronto: Montgomery Publications, 1993) at 465; Lottermoser, Die Fortentwicklung des Abfallbeseitigungsrechts zu einem Recht der Abfalhvirtschaft (Koln: Kohlhammer, 1991) at 34. 2 evolved. It is now accepted that cumulative and long-term effects of pollutants must be taken into account and that pollution must be prevented at source. In recent years, the environmental policy of most countries has been broadly based on the concept of sustainability.5 In 1987, a Report of the World Commission on Environment and Development, the Brundtland Report, defineded sustainable development as: "development which meets the needs of the present without compromising the ability of future generations to meet their own needs."6 As this concept is the ultimate goal of environmental and waste management policy in both Canada and Germany, it could be made the focus of the analysis. However, the meaning and content of the concept of sustainability, even though (or because?) of its widespread recognition, is less than clear. I will therefore provide an introduction to the idea of sustainability and its possible expressions or interpretations, but in view of the complexity of this matter refrain from a deeper discussion and analysis. Instead, the focus of the analysis will be on the development and implementation of what arguably are "sub-principles" of the concept, to show the move of both countries towards a preventive and proactive approach towards waste management. What, then, are these key environmental principles? In relation to waste management the preventive approach towards environmental management, as one of the core elements of sustainablity, has found expression in a focus on the "five R's" hierarchy of the principles of waste reduction, reuse, recycling and recovery and residuals disposal. Disposal of waste, 5Canada, Canada's Green Plan, (Ottawa, 1990) at 5; Commission of the European Community, Toward Sustainability: A European Community Programme of Policy and Action in Relation to the Environment and Sustainable Development, I, 1, COM (92) 23 final (Brussels, March 27, 1992) at 18. 6World Commission on Environment and Development, Our Common Future (New York, Oxford: Oxford University Press, 1987) at 43. 3 which has been the practice of waste management for centuries, seemingly in accordance with the motto "out of sight, out of mind," is now considered to be the least desirable option for the handling of waste.7 Canada has set itself a goal of waste reduction by 50% for the year 2000 in relation to the generation rate of 1988, and the long-term policy aim in B.C. is to reach the ambitious goal of "zero pollution from waste sources, a concept that still recognizes the environment's capacity to assimilate some wastes."8 Similar trends can be observed in German environmental and waste management legislation, where the "Vorsorgeprinzip" (precautionary principle) is an essential guiding principle. § 4 I Kreislaufwirtschafts- und Abfallgesetz (Closed Substance Cycle and Waste Management Act of 8.7.1994) places an emphasis on the priority of "less waste disposal, more closed-cycle management"9 by stating the hierarchy of the three "Vs" of waste management policy, Vermeidung (prevention), Verringerung (reduction) and Verwertung (reuse and recycling/recovery). Recovery of waste through incineration is viewed as a possible equivalent to the material recycling of wastes as long as it is the mode of waste treatment with the lower environmental impact and the waste serves as substitute for primary natural resources.10 7Canada: The State of Canada's Environment (Ottawa, 1991) at 27.15-16; 25.4,18; Environment Canada: Federal Waste Reduction Perspectives (Ottawa, 1993) at 2,8. 8B.C. Ministry of Environment, New Approaches to Environmental Protection in B.C. (Victoria, 1990) at ii. see also ibid, Requirements for Regional Solid Waste Management Plans (Victoria, 1990) at 1; Canada: Federal Waste Reduction Perspectives at 2. 9Federal Ministry of the Environment, Concept of the Federal Republic of Germany for avoiding and reducing the volume of waste - packagings (Bonn, 1994). 10Frank Petersen & Urban Rid: "Das neue Kreislaufwirtschafts- und Abfallgesetz" in NJW (1995) 7-14 at 10/11. 4 Briefly summarized, both countries have embraced the following concepts, that have evolved as major elements of modern waste management policy and legislation over the past few years: - pollution prevention/ precautionary principle - reduction at source - the hierarchy of the three (sometimes five) "R's" - life-cycle assessment/ closed cycle management - full cost accounting - polluter pays principle (responsibility for impacts on the environment of products and materials from "cradle to grave"). An important and interesting question of environmental policy is who should be involved and responsible in the effort to achieve efficient and fair waste management. This question is addressed by the last above-mentioned concept, the polluter pays principle (hereinafter also PPP). Traditionally, waste management has been based on a coercive, regulatory approach, with the state bearing the responsibility for the solution of environmental problems. This approach, however, has not shown the desired effect to gain sufficient control over pollution problems. A proactive approach to environmental management, seeking to prevent pollution at source, implies that environmental protection cannot be the responsibility of the state alone. It mandates the involvement of all individuals contributing to environmental degradation. Essentially, a paradigm shift throughout the whole society has to take place, changing production as well as consumption habits. Individuals have to become aware of their impact on the environment and should accept a corresponding responsibility. The thesis 5 will examine if the idea of "polluter pays" represents a suitable instrument to achieve such a responsible involvement of all members of society in environmental protection. According to the PPP, those causing environmental degradation should bear the associated costs. The concept is supposed to shift the burden of financing environmental management and clean-up from the general public -the taxpayer- to the polluter and to provide an incentive for polluters to switch to more environmentally sound production methods and behaviour in general. It is a core principle of almost every new piece of environmental legislation of recent years. While modern legislation often defines a broad group of persons as "polluters" to be directly addressed by the law, the circle of persons tangentially affected by such legislation is frequently even larger. Originally, the PPP had been developed within the Organization for Economic Cooperation and Development (OECD) as an economic concept. Over the years, it has evolved further and, as I wish to argue, now also stands for a notion of responsibility for the environment. The PPP appears to be a major element of Canada's and Germany's policies. However, in its different appearances and consequences is not uncontroversial with respect to the fairness, justification and consistency of its use. Thus, it seems to deserve a more in-depth examination within the analysis and comparison of the two legislative schemes. It must be asked whether, regarded from the perspective of the overall goal of environmental protection, the polluters' perspective and the standpoint of society, a general reliance on the PPP is the appropriate approach towards environmental problems. The implementation of the PPP will be analysed in two case studies. The complexity and extent of today's environmental problems, to which the production of huge amounts of 6 waste is a great contributor, make it difficult to decide to whom waste management policy and law should be addressed, who should be affected by it and to what extent. Some critical aspects of its implementation may be illustrated by the following examples. The benefit of the principle's use for the environment and the fairness towards the affected persons may be challenged insofar as the concept leaves it open who should fall within the definition of "the polluter." For example, in legislation on liability for environmental harm this has enabled governments to define a large group of various persons, who are often not much involved in the process of pollution, as potential polluters. As those affected by environmental liability are frequently financially potent persons, this trend is sometimes called the "deep pockets" approach. This had led some to suggest that the state is just looking for financial relief for the public purse. In principle, it makes sense to target polluters and also those who have influence on them, and to direct their behaviour through the imposition of environmental duties, such as clean-up orders or reuse or recycling obligations regarding their products. However, an argument might be made that it is not only those "active" polluters who benefit from polluting activity. Society, as a beneficiary of pollution caused by products it uses and needs, should accept its share of the responsibility for environmental degradation. Unfair consequences of rigid liability schemes could be that persons are faced with liability claims who have derived only minor benefit from the polluting event or who have little influence on the environmental standard of the operation at issue. Also, such rigid imposition of liability will not necessarily lead to a higher level of environmental protection, as industries might move to jurisdictions with less stringent requirements. The foundation, the rationale and significance that the above-mentioned principles of environmental management should be given in a reasonable agenda of environmental policy will be explored at the beginning of the thesis. The implementation of the resulting concept of environmental policy will then be explored in the evaluation of the existing Canadian and German waste management law and policy that follows. I. Problems and benefits of the comparative analysis The objective of comparing two different legal systems of waste management raises the question of whether a comparison is feasible and useful. There are several aspects to this, some referring to the social, economic, political, geographical and legal realities in both countries - something totally unrelated may not be comparable - others connected to the aim of the comparison, which is relevant to the question of whether it makes sense to compare the chosen countries. There is a long tradition of legislators making use of comparative law.11 Particularly in the field of environmental law, countries increasingly look for innovative concepts in foreign jurisdictions. Such cooperation has obvious value, as environmental problems are common in western industrialized societies. For instance, Canada, Germany and the European Union all "copy" from the United States' legislation on environmental liability, and Canadian provinces are relying on the German packaging waste legislation to get inspiration for law reform. From this perspective, a comparison of both countries' waste management legislation and nSee Bernhard Grossfeld, The Strength and Weakness of Comparative Law (Oxford: Clarendon Press, 1990) at 16-17. E.g., The German income tax system is derived from the income tax introduced in England in 1798 and German and American Cartel Law is derived from the Austrian anti-trust legislation. 8 policy and the experiences under the respective schemes could provide some useful ideas for either side's future perspective on waste management policy and legal development. The premise for this is, of course, comparability itself: for a comparison it is essential to consider the social, political and cultural background of the foreign law and comprehend the nature of its rules, to be able to understand its function and consequences in the respective society.12 As legal rules are influenced by many factors, they may, even though they use similar words and seem to have the same objective and function, in the end have quite different consequences and effects, due to their context and mode of implementation. A concept of waste management may have been proved suitable and effective for one state, but nevertheless, not be practicable in another country, which is faced with different needs and problems or concepts of the role of the state and the organization of society. The social, political and cultural, and, in this case, the environmental background of the law should therefore be relatively similar in the compared states if one aims at the finding of new ideas or concepts that might be transferable to the other legal system.13 In the following section, I will refer to some reasons for which I consider a comparison of Canada and Germany to be reasonable and useful. Both countries, which are among the highest industrialized and wealthiest states of the world, belong to the OECD. From that context, and other common international institutions, they have drawn basic concepts of their environmental policy. They have gone through a similar, rapid industrial development during this century, causing immense environmental 12Grossfeld, ibid, at 44-45. 13Michael Kloepfer, Umweltrecht (Miinchen: Beck, 1989) at Rn.102 [hereinafter Kloepfer !]• 9 degradation. The present economic situation of Canada and Germany is quite similar, with both facing tight budgets and the call for cutting government spending which affects environmental policies. Canada, which is about 40 times as large as Germany, is certainly, due to its vast areas and forests, faced with a different social, economic and environmental situation. For instance, the acid rain problem has had a much heavier impact on Canadian economy and society than it has in Germany, although there, dying lakes and forests are a major environmental issue as well. Or waste management schemes, such as recycling programs for household waste, may not be so easily implemented as in the densely populated Germany. But along an about 300 km broad belt spreading out from coast to coast along the U.S.-border one finds relatively densely populated areas which are highly industrialized and where Canadian people consequently are faced with similar environmental problems as the Germans. The geographical situation of B.C., where most people live along the coastline, and the mountains set a natural limit to the expansion of human settlements, results in a quite comparable situation of scarcity of available land for human use and natural life as is found in the small and densely populated European countries. This leads to a similarly urgent need for waste minimization, due to the lack of (potential) landfills, and an interest in cleanup of potentially valuable areas, particularly of inner city grounds, in both jurisdictions. Thus, from the geographical, environmental, economic and social aspects, there should be sufficient common characteristics to make the countries comparable. 10 II. Comparability of the legal systems An important element is, of course, the comparability of the legal systems. Whereas Canada is based on the common law system and thus relies to a great extent on caselaw, Germany, as a civil law country originating from Latin and Germanic legal systems, has traditionally had statutory law. In some legal areas this may complicate a comparison substantially, but environmental law has the advantage of being a relatively new and rapidly developing, complex field of law which has been codified in both countries. Generally, it can be noted that there is a gradual convergence in both countries towards a "mixed system," as in Canada, governments increasingly make use of statutory law, while in Germany, the interpretation of law by courts plays an important role. However, the differences of the legal systems should not be neglected in the analysis because even though there may be a chronologically parallel development of waste management legislation aiming at the solution of problems common to both states, the implementation and interpretation of the laws is naturally influenced by the existing legal system. Common to both countries is that they are federal states. Neither state has fixed environmental jurisdiction completely in its constitution, and it is therefore shared between the federal and the provincial or "Lander"-states. In Germany, the federal state has "concurrent" jurisdiction over waste management, Art. 74 No.24 Grundgesetz (Basic Law, GG), 1 4 so that waste management is mainly regulated in federal statutes. Lander waste management acts complement the federal law in areas that the federal state has not 14Grundgesetz of 23.5.1949, BGB1. S.l; BGB1. Ill at 100-1. 11 regulated. In contrast, waste management is considered an issue of a merely local nature and therefore under provincial jurisdiction according to s. 92 (16) Constitutional Act in Canada.15 The comparison will therefore mainly focus on British Columbian legislation. The assignment of jurisdiction to different government levels, the Canadian provinces and the German federal state, might lead to a different "short" or "far sighted" perspective on the part of legislators. However, institutions on the federal level which purport to ensure a consistent environmental policy throughout Canada, such as the Canadian Council of Ministers of the Environment (CCME), lead to a nation-wide harmonization of provincial legislation. The federal state also impacts provincial legislation by creation of nation-wide standards and strengthening of provincial enforcement of laws to ensure an even and consistent environmental protection throughout the country. It also plays an advisory role.16 Meanwhile in Germany, the Lander influence the federal legislation through the second chamber of parliament, the "Bundesrat", and also have their own waste management legislation, so that in effect the difference in the distribution of powers in both countries may not be very significant. Furthermore, it is common to both that, on a local level, municipalities organize waste management, by running sewage and waste treatment facilities, and creating and enforcing local by-laws.17 15Canada, Federal Waste Reduction Perspectives, supra, note 7 at 3; Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 16Kernaghan Webb, Pollution Control in Canada: The Regulatory Approach in the 1980s (Ottawa: Law Reform Commission of Canada, 1988) at 62. 17For an extensive illustration of the Canadian organization of legislative, administrative and enforcement powers see Doug Macdonald, The Politics of Pollution (Toronto: McClelland & Stewart, 1991) at 135-146; for Germany see e.g. Bender & Sparwasser, supra, note 3 at Rn. 30-41, 872-878, 926-972. 12 Some remarkable differences can be discerned between the legal systems. A significant example which gives an impression of the limited transferability of legal approaches to another country, is the possibility of enacting retroactive laws. Whereas in Germany retroactive laws are, as violations of the rule of law, unconstitutional and therefore invalid, Canadian legislators are not so limited in their options: under certain circumstances, such as the express statement of the retroactive application in the statute, it may well be possible to create such laws. This opens a wide range of options to "catch" former polluters for remediation, where environmental damage was caused years ago. Another example is the possibility under Canadian common law, which is comparable to the private law in Germany, that a court can impose not only compensatory, but also punitive damages if the defendant's conduct was high-handed, malicious, or contemptuous of the plaintiffs rights. This sum to be paid in addition to the plaintiffs actual loss purports to punish and deter the individual wrongdoer and in general to deter the public from such unwanted conduct.18 In Germany, there is a strict separation between the private law, regulating the relationship of individuals, and the criminal law, which aims at deterrence.19 However, the usefulness of a comparison between Canadian and German waste management law can be supported from a legal standpoint as well. Both jurisdictions have embraced similar environmental policy concepts, which in general seem to be quite consistent among western legal systems. To illustrate this, British Columbia is in the process of enacting a new contaminated sites legislation, while the European Communities have been 18Estrin & Swaigen, supra, note 4 at 109. 19Through provisions such as § 326 Strafgesetzbuch (Criminal Code of 10.3.1987, BGB1. I at 945,1160 in the amended version as of 27.6.1994, BGB1. I at 1440), which makes the dumping of harmful substances in the countryside or waters a crime. 13 considering a very similar initiative on a Council Directive on Civil Liability for Damage Caused by Waste, both taking the United States' "superfund" law - the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) - whose liability concepts are based on the polluter pays principle, as a general model. Other common elements include an emerging focus on the concept of "product stewardship," an implementation of the polluter pays principle first set down by Germany in its packaging waste law, and on the use of economic incentives as tools to promote environmentally sound behaviour. Given this intertwining on both a policy and on a legal level, a comparison of the German and Canadian legal systems may provide useful information on experiences gained in each jurisdiction, even if there may be limits to the transferability of legal concepts and ideas. III. Outline of the thesis The analysis will be developed in several steps. Chapter 2 gives an introduction to the broader context of environmental policy, such as economic theory, environmental ethics and ecology, with which waste management legislation is inherently connected. I will give an introduction to a perspective on modern environmental policy as I consider it to be reasonable in the face of today's environmental problems. In the third chapter, I will critically examine the development of Canadian and German waste management legislation, covering a period of roughly the past 20 years. This time frame can be explained by the fact that both countries increasingly started to implement programs of pollution control and prevention at the beginning of the 1970s in the field of 14 waste law. The aim of this chapter is to draw a picture of the evolution and implementation of modern waste management legislation and policy, to identify the underlying policy concepts and values and analyse their development over the years. Chapters 4 and 5, offer examinations of recent legislative programs, covering two fields of waste management that lately have become the focus of legislative initiatives: waste recycling and reuse and the remediation of contaminated sites. They offer the possibility of a broad analysis of the polluter pays principle, which has been implemented in the examined programs in various ways, ranging from clean-up liability for polluted land to the concept of product stewardship. This concept implies to take producers, distributors and consumers into responsibility for their products throughout the whole life cycle, from production to disposal. It will be argued that the tendency of legislators to target the broadest possible range of persons is not generally the best way to protect the environment as it will not necessarily lead to a reasonable allocation of the limited available funds and may also result in an unfair burden on selected persons which may decrease their willingness to contribute to the protection of the environment. A balance must be carefully struck between a polluter pays principle, aiming at the imposition of responsibility and liability for pollution on certain persons which are considered "polluters," and a principle known in Germany as "Gemeinlastprinzip" (common burden principle), meaning that the public at large should accept its share of responsibility as well. Canada as well as the European Union and Germany are in the process of implementing systems of waste management which will, due to the high investments that a reorganization 15 of production processes requires from industries, have to be left relatively unchanged over a long period of time. Legislative measures should therefore only be taken if their consequences and impact on the environment have been well considered and if they are also justifiable from a long-term perspective. This thesis hopes to shed some light on the direction which future development might take. 16 Chapter 2: Introduction to the policy of environmental protection and waste management as framework for the analysis of Canadian and German law I. Background of a modern ecological approach to environmental and waste management policy For a long time, western industrialized countries, built on the notion of ever-continuing progress and maximization of wealth, have relied on an exploitation of the earth's resources and on the environment's presumed capacity to assimilate unlimited amounts of waste produced by humans. Waste has always been accepted as an inescapable by-product of human activity. For many years, waste production and disposal were not perceived as a significant problem because they remained within the assimilative capacity of the eco-system. To the extent that it existed, waste management focused on the prevention of health hazards and nuisance caused by waste. Over the last two decades it has been increasingly realized that the earth's eco-system is finite. Major environmental disasters like the London Smog of 1956, the pollution of the Great Lakes, the acid rain problem and ozone depletion, have proved the assumption of an infinite assimilative capacity of the earth to be wrong. Gradually, people have become aware that the steady increase in production and standard of living since the beginning of the industrial revolution has only been possible at the expense of severe environmental degradation, the extent of which is only gradually being realized. It turned out that the earth's carrying capacity had been far over-estimated, and it became apparent that a more careful management of natural resources, renewable and non-renewable, as well as a prudent 17 management of the waste produced by human societies were needed. Waste, for the first time, was perceived as an issue of environmental protection. At the same time, an understanding of the connection of environmental degradation with practices in international trade, the lifestyle of consumer societies and the discrepancies between industrialized and the so-called developing countries emerged. It was realized that pollution problems did not halt at borders and needed to be approached not in single, point-source oriented actions, but in a comprehensive integrated manner, affecting various aspects of life, from industrial production to consumption behaviour. For waste management this implies that it must be approached not by a simple reliance on disposal of waste, but that the focus must be on a prevention of waste in the first place. It also requires a move away from the view of environmental protection as a task of governments to an acceptance of individual and collective responsibility for the environment. Environmental degradation is caused by the aggregated decisions of all members of society, which implies that everyone must be involved in the effort to reestablish the vital link between the eco-system and the economy. Thus, it can be seen that environmental law affects diverse and fundamental areas of society, such as economic and industrial activity, but also each individual's life in manifold ways. It is therefore necessarily closely connected to questions of the organization of a state and its economy. Generally, the role of law in a democratic society is not to compel change, but to reflect it.20 Law is an instrument to operationalize the policy that has been established to achieve certain societal goals, which are driven by the values a society has embraced. The difficulty in the environmental context, however, is that there is no consensus on how the 20Elizabeth Swanson, Putting Sustainable Development to Work: Implementation through law and policy (Edmonton: Environmental Law Center, December, 1993) at 1. 18 issue of environmental protection should be approached. Part of this stems from the fact that there is no general agreement on where the roots of environmental degradation lie. The problem of environmental degradation has widely been diagnosed as resulting from a market failure. In principle, according to the model of the prevailing theory of neo-classical economics,21 the perfect state of equilibrium in a market-economy, the "Pareto-optimum," is reached by a play of the free forces of the (undisturbed) market, where the preferences of the individual persons, expressed in their economic choices, determine the allocation of resources (rational choice theory).22 Assuming that each person, being perfectly informed and willing to trade commodities, strives for utility maximization, individuals are supposed to trade a commodity until they reach the point where no further trading can make one individual better off without making the other worse off. In the perfectly efficient equilibrium state resources should be traded at a price reflecting their relevant value expressed in the economic choices; thus, scarce resources would have a high price and be used only to an extent where it is most beneficial for all members of society. In the neo-classical model, natural resources are an input for human production and consumption processes, their scarcity forcing economic agents to make choices regarding the ends for which they are to be used. Environmental degradation or environmental quality are the result of the decisions 2 1 See for example E. Roy Weintraub, General Equilibrium Theory (London: Macmillan, 1974), particularly at 28-40. 22Ibid.; Allen V. Kneese, Economics and the Environment (New York: Penguin, 1970) at 20; see also T.F. Schrecker, political economy of environmental hazards (Ottawa: Law Reform Commission of Canada, 1984) at 42ff. 19 of all individual economic agents, weighing the benefits derived from increased production and consumption against the benefits enjoyed when environmental quality is improved.23 From this perspective, difficulties arise when environmental goods are not traded on the market and therefore are not used rationally because they do not represent a cost-factor in economic decision-making.24 Everyone ends up relying on the action of other agents to manage environmental resources wisely, a phenomenon referred to as the "prisoner's dilemma" or "free-riding" problem.25 The solution to this failure of the market to allocate resources efficiently, so long as uncompensated externalities exist, is sought in public policy, which should provide for an "internalization" of the external costs caused by polluters. According to this, the state corrects the market failure by assigning a shadow price to the externality, which is included in the individual's cost-benefit calculation and ultimately leads to the reaching of a "Pareto-optimum exploitation of nature." It has been widely postulated by neo-classical economists, but also others, that such a shadow price should be assigned by 23Frank J. Dietz & Jan van der Straaten, "Missing Links between Economic Theory and Environmental Policy" in Dietz et al, supra, note 1 at 100. 24Arthur Cecil Pigou (Economics of Welfare, 4th ed. (London: Macmillan, 1952)), the first economist to pay attention to environmental problems, discovered the cause of environmental degradation in "external economics" or "spill-over effects." He defined "external diseconomy" as the production of a negative by-product by one or more economic agents, which, in principle, is undesired, but generated "behind the back of the market." As the loss experienced by the victim does not present an iminent cost-item to the originator of the external diseconomy, the costs of exploiting nature have been constantly underestimated. This led to a greater harm caused to nature by production and consumption than economic agents would reasonably want it to be. 2 5 A prisoner's dilemma is a situation where the rational choice for each individual in a set prevents the set of individuals from releasing joint gains from co-operation. Rational choice analysis therefore sees the purpose of public policy in solving such problems of collective actions, such as pollution. See, e.g., Albert Weale, The new politics of pollution (Manchester: Manchester University Press, 1992) at 38-46, particularly at 41, with further reference. 20 the use of "economic instruments."26 It is presumed that with the help of such state interventionist economic instruments, that correct the market failure but allow for more flexibility in the choice of environmental protection measures than traditional command and control instruments, an optimal state of environmental management will be reached. From this perspective, the solution to environmental problems can be found in the market, while the role of law is restricted to giving a frame for the market to regulate environmental protection. This approach, however, is confronted with fundamental problems.27 Even from a merely economic standpoint, it must be recognized that an economy which does not heed the needs 26See, e.g., Peter Bohm & Clifford S. Russell, "Comparative Analysis of Alternative Policy Instruments" in Allen V. Kneese & James L. Sweeny, eds., Handbook of Natural Resource and Energy Economics (Amsterdam: Elsevier Science Pub. Co. ,1985) Vol.1 and Johannes B. Opschoor & H. Vos, Economic Instruments for Environmental Protection (Paris: OECD, 1989). Negative economic incentives could be to impose taxes on environmentally harmful conduct, in the form of effluent charges, product charges, administrative charges or tax differentiation. Positive incentives could be given through subsidization of environmentally friendly conduct by means of grants, loans, soft loans and tax allowances. 2 7I will just refer to some major points of the standard critique applied to neoclassical economics. These include that the concept of a cost benefit analysis, on which the rational individual decisions are based, usually involves discounting the present value of benefits, which is prone to neglect the only estimable worth of environmental goods in the future (see e.g. Thomas Tietenberg, Environmental and Natural Resource Economics (Glenview, Illinois: Scott, Foresman and Company, 1988) at 492. John M. Gowdy, "Further Problems with Neoclassical Environmental Economics" (Spring 1994) 16:2 Environmental Ethics 161-171 at 167). Our limited scientific knowledge on the functioning and thresholds of the eco-system makes it difficult to measure the monetary value of environmental protection. Other environmental goods may only have an intrinsic value or an imperceivable importance for the eco-system as a whole. Thus, a cost-benefit analysis is likely to be biased towards the costs for environmental protection, which are frequently easier to measure (Frank J. Dietz & Jan van der Straaten, "Sustainable Development and the Necessary Integration of Ecological Insights" in Dietz et al supra, note 1 at 33; see also Gowdy, Further Problems with Neoclassical Environmental Economics, ibid, at 169/170). Acknowledging that it is difficult to attach a price to certain goods, neo-classical environmental economists have developed models such as "hedonic pricing" or "contingent valuation" to determine the value of a pristine lake or a scenic view. These are based on the willingness to pay (or willingness to 21 of the environment acts contrary to its own raison d'etre by destroying the thing that sustains it.28 An old Maori proverb puts it starkly: "Tukino ao tukino koe - Destroy nature; destroy yourself"29 The concept of neo-classical economics reduces the environment to a merely economic object.30 This is incompatible with the fundamental premise that ecological insights must be made the basis of economic decisions. It also tells a lot about the underlying values of neo-classical environmental economics. Neo-classical environmental economics tend to rely on a picture of humans as competing and utility maximizing individuals which ever strive for growth in wealth and living standard.31 This marginalizes values such as sell) of individuals for the respective commodity. (See for that David W. Pearce & R. Kerry Turner, Economics of Natural resources and the Environment (New York/London: Harverster Wheatsheaf,1990) at 141-158.) These methods, however, merely indicate individual preferences for a particular environmental quality, making it difficult to aggregate individual preferences into a collective statement of public policy (Dietz & van der Straaten, ibid, at 32). Finally, the neo-classical approach towards reaching a balanced relationship between humans and the eco-system relies on the notion of progress in a traditional sense of economic growth. This presumption that human ingenuity will provide for ongoing wealth maximization is not justifiable with view to the earths limited carrying capacity and resources (This is recognized by "ecological economists", see James Baines & John Peet, "Sustainable Development and Stock Resources" in Dietz et al, supra, note 1 at 45; Karin Mickelson & William Rees, "The Environment: Ecological and Ethical Dimensions" in Elaine L. Hughes et al, Environmental Law and Policy (Toronto: Emond Montgomery Publications Limited, 1993) 1-29 at 7-9; a fundamental work is Nicholas Georgescu-Roegen, The Entropy Law and the Economic Process (Cambridge, Mass.: Harvard University Press,1971). 28Der Rat von Sachverstandigen fur Umweltfragen (hereinafter: RSU/The Council of Environmental Advisors), Umweltgutachten 1994 "Fur eine dauerhaft-umweltgerechte Entwicklung" (1994 Environmental Report In Pursuit of Sustainable Environmentally Sound Development, Fundamentals of Environmental Ethics, Bonn, 1994) at 6. 29See Baines & Peet, ibid, at 81, referring to Palmer, 1989 at 14. 30The use of the term "externalities" already implies that the price mechanism lies at the heart of neoclassical economics, transferring environmental deterioration to the periphery of economic thought (Dietz & van der Straaten, supra, note 27 at 49). 31The so-called "homo economicus" or "economic man", Schrecker, supra, note 22 at 43. See also John M. Gowdy, "Progress and Environmental Sustainability" (Spring 1994) 16:2 Environmental Ethics 41-55 at 42-44, particularly at 43, where it is referred to the standard work of Edwin Mansfield, Microeconomics, 7th ed. (New York: W.W. Norton, 1991), 22 environmental compatibility, social compatibility (including the responsibility for others, e.g. third world countries or future generations) or the protection of a "merit-good," such as the environment, for its own sake.32 The market-approach is inclined to view economic, social and ecological development separately,33 while in order to achieve a state of balance between human activity and the eco-system it is essential to view these three components as a single integral whole in need of constant renewal.34 To survive, the structure of the economy must be such that it goes full circle and ensures that production and consumption stating that "The goal of economic growth is a relatively new one; most past societies have had economies that were unprogressive."(at 9). 32Those values have some continuity or are social reproduction-oriented and could be regarded as a priori values on nature conservation, that exist at a collective, not an individual, level. As opposed to that, the neo-classical mode of cost-benefit analysis tends to be focused on a short-term perspective as it relies on the preferences of individuals as determinants of the value of environmental good (Johannes B. Opschoor & Jan van der Straaten, "Institutional Aspects of Sustainable Development" in Dietz et al, supra, note 1 at 57). 3 3For example, the notion of progress, as it has been relied on and defined in western societies since the Victorian age and the beginning of industrialization, is increasingly being challenged by environmentalists. The seemingly unlimited possibilities, which presented themselves with the age of technology led to a rather selective view of the world,- the optimism and belief in progress and a new feeling of security and superiority diverted from all negative side-effects of "progress" on nature. (See RSU, supra, note 28 at 12/13 and Mickelson & Rees, supra, note 27 at 3-5). It relies on an understanding of the world based solely on physical and technical laws of natural science which are supposed to provide an answer to all questions of the functioning of nature. Inherent to the scientist's view, however, is a separation between the observer and the observed, which has led to the objectification of the natural world by western philosophy and science: "the Carthesian dualism," as found in Descartes' work, Mickelson & Rees at 3; Macdonald, supra, note 17 at 266-267. As the RSU puts it, the ecological crisis is closely connected to the rise of the modern world, to the "modern scheme of things" (Projekt der Moderne, Jurgen Habermas). The newly gained rationality allowed humans to methodologically apply themselves to deducing the reality empirically presented to them, with the aim to make full use of the possibilities offered by the world. "The concept of modern times means an externalization of reason, the use of the world in all its opportunities, the emergence of homo faber, rational restructuring of labor in the service of a hitherto unknown belief in the whole of humanity." (RSU, supra, note 28 at 12). 3 4RSU, supra, note 28 at 4. 23 processes are embedded in the natural cycles they depend upon. It follows from that, that the priority in economic and environmental management must be the maintenance of the functions of the environment. What this requires is a fundamental rethinking of our attitude towards the natural world. Such a rethinking is postulated by those who see environmental management as an ethical problem, related to the worldview our societies are built on. The purpose of ethics is to examine a person's self-accountability for her actions, for the way she lives, how she approaches the world in which she lives and how she uses her own capabilities.35 Such an approach raises a number of questions. Is it right for us to determine the needs and wants of future generations, for whose existence in a livable world we should take responsibility? Is it, apart from the actual feasibility, legitimate to assign a monetary value to environmental goods, such as eco-systems or "useless" animals? Is it a valid assumption that individual preferences and values count exclusively in all matters? And do humans have a moral responsibility for the well-being of nature? From an ethical perspective, humans must understand their potential to impact the fragile web of life, of which they are simply a part, but one with immense power. Recognizing that the world is not made for human benefit alone, people should, as moral and intelligent individuals, accept their responsibility for the maintenance of a healthy ecological and social state of the world.36 An essential shortfall of neo-classical economics is that it fails to 3 5RSU, supra, note 28 at 11. 36In a Kantian sense they bear an inherent responsibility, which cannot be delegated to others, to make decisions for themselves and pursue their self-development to find harmony, which ultimately is only possible if they can morally justify their actions and their position in the world (RSU, supra, note 28 at 18). 24 address this relationship of responsibility between humans and the natural world. The valuation of nature needs to be de-linked from the utilitarian approach taken by neo-classical economics, which in an anthropocentric manner essentially focuses on humankind as the center of the world.37 It should be acknowledged that nature has an inherent value in itself, an approach that has been described as the concept of reverence towards nature and towards life, representing the necessary counterbalance to a form of dealing with reality which instrumentalizes it.38 In ethical terms, this would require that the natural world would, apart from any instrumentalization, deserve to be protected in its richness and diversity that it would consequently be deemed immoral to carelessly damage or destroy it.39 37The materialistic objectification of the environment by neo-classical economics reflects that humans in western societies have separated themselves from "their environment," regarding themselves not as an integral part of the whole eco-system with which they could identify themselves, but instead considering the world as something existing for human benefit that can be used and exploited. 3 8RSU, supra, note 28 at 19. Reverence, letting an object speak for itself, is created where the observer recognizes in it an inherent greatness which he or she cannot evade and is an essential part of human life, where people are captured by the fascination of nature. See also Lawrence Tribe, "Ways Not To Think About Plastic Trees: New Foundations For Environmental Law" (1974) 83 Yale L.J. 1317. The concept of "reverence for life" was developed originally by Albert Schweitzer as a universal ethical principle,- that good lies in the conservation, advancement and enhancement of life, as opposed to evil, arising from the destruction, impairment and obstruction of life. (Kultur und Ethik. Kulturphilosophie (Munich, 1923) 2d. part at 17; see Philosophy of civilization, 2d. ed. (London: A. & C. Black, 1929). 3 9RSU, supra, note 28 at 20: It is a difficult question to decide upon the consequences of this concept, which could ultimately lead to the conclusion to grant animals or even all natural life the same, equivalent rights as they are granted to humans. Such a far-reaching concept is postulated for instance by the animal rights movement, (Peter Singer, Animal Liberation, 2d. ed. (New York: New York Review of Books, 1990), Tom Regan, The Case for Animal Rights (Berkeley, University of California, 1983)). A discussion of the worthiness and validity of such concepts of rights for the natural environment is beyond the scope of this thesis. Nevertheless, a reasonable practical consequence to be drawn from the notion of reverence could for example be the adoption by states of environmental bill of rights, including a constitutional right to a healthy natural environment, which could improve the status of environmental protection among other constitutionally accepted goods and 25 A merely mechanical approach towards the solution of environmental problems, meaning that public authorities would just secure the right rules of the economic game, without worrying about the attitude that the players bring into the game, has already proven to be of limited effect by using the traditional instruments of environmental management over the past decades. It is not very likely that relying on economic instruments for environmental protection alone will bring about the fundamental change needed to achieve a state where the needs of the natural world and of humankind are balanced. To diagnose the ongoing environmental degradation as a plain consequence of a "market failure" seems to be too simplistic, as it neglects the fact that the historically developed value system and worldview of our western societies is an essential key to our attitude towards the way we treat the "environment." The achievement of a balanced relationship between humans and the natural world implies a deeper reform, a change in societal values,- a "moral", not merely a "mechanical" reform.40 It seems essential to redefine our relationship towards "the environment." This implies a respect for nature and a responsibility for nature's well-being that has long been neglected in economic and environmental decision-making. A good example of this broader concept of rights (E.g., by means of improved enforcement induced by individuals, especially in German law, where a right to action arises whenever (the implementation of) a provision touches personal rights.) 40This distinction is made by Weale, supra, note 25 at 27, referring to Mathew Arnold. He further notes that in the 1950s the belief became firmly established throughout western democratic societies that ethical issues should not be allowed into public affairs. This is exactly the point where "ecological economists" and representatives of the environmental ethics movement see the major shortfall of conventional environmental and economic politics. The need for such a "moral reform" is expressed in the immense increase in literature on "environmental ethics" trying to redefine the relationship of humankind to nature. 26 responsibility is the strategy of verinnerlijking developed in the Dutch National Environmental Policy Plan (NEPP).41 Verinnerlijking means the endorsement by all social actors, industry, producers and consumers, of responsibility for their environmentally impacting actions to a much higher degree than hitherto. Recognizing the distance -in space and time between cause and effect- as a major cause of careless environmental degradation, NEPP extends this responsibility to members of the own society, of future and of other societies elsewhere in the world.42 The plan is built upon a partnership between government, industry and consumers, who should realize that the level of pollution is a result of their joint decisions. Such a concept manifests a qualitative shift in the relation of the state to the civil society which seems to be fundamental to a rethinking of environmental policy. The moral content of citizenship is changed, as the state, in affirming the importance of individual responsibility for the environment, is doing more than seeking efficient and effective means to previously set goals, but is instead choosing ends, by selecting a particular interpretation of the network of rights and duties that bind the citizens and the state to a unit.43 As Weale puts it, the object of policy then must not simply be a good environment, but good citizens in relation to that environment, making the step from "mechanical" to "moral" reform.44 A 4 1NEPP is based on systems theory, regarding the natural and social world as a complex, interlinked system, where disturbances at one point can lead to malfunctions at another. Human environmental impact should therefore, wherever possible, be prevented at source so that the integration of environmental considerations into public and corporate policy, as well as personal morality is an essential premise for a sustainable environmental management. See the case study by Weale, supra, note 25 chapter 5, particularly at 128 and 133-135. 42Weale, supra, note 25 at 133 quoting from NEPP p.87. See also Opschoor & van der Straaten, supra, note 32 at 60-61. 43Weale, supra, note 25 at 150. 44Weale, supra, note 25 at 150. He makes the connection of the NEPP's concept to classical theorists of democracy, according to whom the health of the citizen republic was dependent upon the virtue of its citizens, a theme found also in the political theory of Rousseau, John 27 logical consequence of a rethinking of the individual's responsibility for the state of the environment is thus that it must find expression in a democratic reform as well. In practice this would mean, for example, that public participation in environmental decision-making must be given a bigger role ("shared decision-making"), that citizens would be given a bigger role in the enforcement of environmental law, and that a cooperative rather than a confrontational relationship between government and citizens should govern environmental management.45 Environmental law must play a stronger role in pursuing environmental protection than it envisaged by neo-classical economists. Instead of simply providing a framework for the market to regulate environmental protection, it should reflect the responsibility of individuals and the society for environmental degradation. A concept of responsibility relies on individuals as moral and intelligent beings, able to realize their responsibility for the environment on their own, which should, ideally, motivate people's actions. To achieve this state, the law should give guidance to individuals to support them in realizing and accepting their responsibility. Individual preferences as the determinants of environmental protection under a market approach tend to be rather short-sighted, not reflecting a holistic perspective Stuart Mill and Jefferson. This is in contrast to the liberal idea of the state (Ackerman, Dworkin or even Rawls), which often marks neo-classical economics, where the function of the state is to provide a device for harmonizing the otherwise conflicting desires pursued by individuals. To perform this function, it needs the acceptance and understanding, but not the virtue of its citizens. The state, in liberal concepts, must remain strictly neutral between competing conceptions of the good, merely providing a legal and constitutional framework within which individuals can pursue their separate ends. A shortcoming of these concepts is that they provide no method by which collective goods, such as the environment, can be secured, as the state should not seek to influence the citizen's conception of the good. 45See e.g. British Columbia Ministry of Environment, Lands and Parks, Environmental Action Plan for British Columbia (Victoria, 1992) at 2. 28 on the worth of the natural world. It is necessary to further individual awareness of responsibility, and in some cases people will not be prepared to accept their share of responsibility, which must be ensured legally.46 II. Principles for a modern environmental policy and law The fundamentals of an ecological environmental protection policy, based on an ethical approach of responsibility, can be found in policy concepts that have evolved over the past years. Increasingly, a need for a holistic approach towards environmental protection is recognized. Such a holistic approach forces people to realize the impact of individual action 46This change in perspectives is reflected in the work of ecological economists and progressive environmentalists, who take a political-economic approach towards environmental management. They rely on an integration of environmental considerations with economic decision-making, where the maintenance of a healthy environment must have priority. This prohibits the deliberate interference with major cycles in the eco-sphere to an extent that makes them hazardous for life and requires the management of waste and harvesting of resources within the earth's carrying capacities (Baines & Peet, supra, note 27 at 81. See also Mickelson & Rees, supra, note 27 at 6-11 and Mathew Gandy, Recycling and the Politics of Urban Waste (London: Earthscan, 1994) at 61 [hereinafter Gandy 1994]). In view of our limited scientific knowledge on the functioning of the eco-system, a strict precautionary approach towards environmental management is postulated. This requires anticipatory and adaptive, instead of reactive action, and refraining from conduct whose harmful potential cannot be sufficiently judged and controlled (Baines & Peet, supra, note 27 at 82; Dietz & van der Straaten, supra, note 27 at 47). Ecological economics and environmentalists take an ethical approach, arguing for individual responsibility for the environment, and for the need to reverse our addiction to material goods, implying to draw clear distinctions between "wants" and "needs" (Macdonald, supra, note 17 at 263, 274; Opschoor & van der Straaten, supra, note 32 at 57,59; Baines & Peet, supra, note 27 at 94; RSU, supra, note 28 at 40; Mickelson & Rees, supra, note 27 at 18-20). Their approach towards an environmental reform is based on an interactive link of the ecological, social and economic world and thus implies a social reform as well (see Gordon & Suzuki, It's a Matter of Survival (New York: Allen and Unwin, 1990) at 104-105; RSU, supra, note 28 at 33, 36-38; Gowdy, "Progress and Environmental Sustainability", supra, note 31 at 53/54; Macdonald, supra, note 17 at 275-277, with reference to Robert Paehlke, Environmentalism and the Future of Progressive Politics (New Haven: Yale University Press, 1989), at 257). 29 on the environment, as environmental considerations must be integrated into all aspects of life. It thus implies individual responsibility for the environment. In the following part, I will set out the essential concepts embraced by modern environmental and waste management policy. A link will be established to the environmental policy adopted in Canada and Germany. In recent years, environmental policy in both countries has moved towards a modern, more preventive and proactive approach towards environmental protection. Setting out a concept for a sound waste management in the context of Canadian and German waste management policy therefore means mainly to establish priorities and interpret principles that have already been adopted by national policies, by integrating the ecological and ethical approach as it has been delineated above as the fundament into policies. Two basic concepts, developed in the economic policy context, are the notion of sustainable development and the polluter pays principle. These concepts, however, should not be understood in a merely economic sense.47 In the context of environmental management, they can serve as guiding principles standing for an idea of a balanced and viable relationship between human activity and the eco-system, built upon a responsible attitude of humans towards their environment. 47But see Swanson, supra, note 20 at x and 71, who argues that by being integrated primarily in the context of environmental protection, as opposed to legislation concerned with economic development and decision-making, sustainability, being inherently an economic concept, becomes diluted. To her, its useful purpose seems to be reduced to economic legislation, where it implies that economic decisions should heed to the conditions set by the eco-system. 30 A. The notion of sustainable development and its implications for environmental and economic policy The struggle over solutions to the problem of environmental degradation was brought to a head in 1987, by a report of the World Commission on Environment and Development (WCED), the "Brundtland Report," which called for the adoption of a concept of "sustainable development."48 This concept, claiming the need for an integration of environmental considerations into economic decisions, was embraced by countries throughout the world, including Canada and Germany.49 The "Brundtland Report" argued that the prevailing patterns of economic growth would not be ecologically viable, and that this would not automatically be redressed from within the economic process and economic institutions. One significant element of the report was that it acknowledged that the viability of the economy and of humankind itself was dependent on a healthy environment, as opposed to the long-prevailing assumption of unlimited growth which was based on a perspective that separated the economy from the environment, denying a vital link between the economic realm and the eco system. This demanded a new policy, economic and environmental, with repercussions for the treatment of natural resources as factors of production and as welfare determinants (including the environment as receiving medium for waste), for valuation theory and for the evaluation of market-forces. The question arose of how the normative concept of sustainable 48The WCED, established in 1983 and chaired by the Norwegian prime minister, Gro Harlem Brundtland, published its report "Our Common Future," supra, note 6. 49Canada, Canada's Green Plan, supra, note 5 at 5; Commission of the European Community, Toward Sustainability: A European Community Programme of Policy and Action in Relation to the Environment and Sustainable Development, supra, note 5 at 18. 31 development was to be interpreted and operationalized for implementation into national economic and environmental policies. The Brundtland Report defined sustainable development as: "Development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs.... A process of change in which the exploitation of resources, the direction of investments, the orientation of technological development, and institutional change are all in harmony and enhance both current and future potential to meet human needs and aspirations."50 Leaving the question of economic growth relatively open, the report acknowledged that economic development in developing countries is a fundamental prerequisite for life, whereas the expansion of production and consumption is the main driving force of environmental deterioration in developed countries. Critical objectives for "sustainable" environmental and economic policies were seen in reviving economic growth, changing the quality of growth, conserving and enhancing the resource base and merging environmental and economic considerations in decision making.51 Thus, the concept mirrors an integrated, holistic approach towards environmental management, based upon a notion of collective and individual responsibility for the eco-system and for other humans. Its broadness, however, permitted a sweeping range of interpretations of the concept. It thus was criticized by environmentalists as not setting reasonable and clear limits to human activities, neglecting the need for an overall curbing of economic growth which would imply mainly a major cutback in economic activity in industrialized nations.52 While the broad 5 0WCED, supra, note 6 at 43, 45. 5 1WCED, supra, note 6 at 49. 52Macdonald, supra, note 17 at 272/273 for example claims that the WCED's proposal fails to meet its own test, by suggesting that we must make resource use more efficient, but also increase resource consumption which would allow the developed nations to maintain their 32 formulation of the concept allowed for its acceptability and adoption throughout the world, its disadvantage is that its operationalization is hampered by scientific uncertainties and its openness to interpretation. Definitions of the concept thus range from "sustaining intergenerational welfare" to "maximizing the time of the existence of the human species" or "sustaining nature and its diversity."53 A thorough discussion of the usefulness and interpretation of the concept of sustainable development is beyond the scope of this thesis. It will therefore only be included in so far as it is a necessary element of the subsequent discussion of concepts that can be seen as subservient principles to operationalize the idea of sustainable development. 1. Integrated environmental management An essential consequence of the requirement that environmental concerns be considered in all economic decision-making, is the concept of integrated pollution control.54 In essence, this means two things: first, that the environmental impacts of products and services must be considered throughout the entire life-cycle, from cradle to grave; secondly, that all public decisions must be based on a coherent policy concept, applied by all government levels and branches, and be assessed in their impact on the environment.55 Canadian and German living standard, while the developing countries would achieve living standards of the western world. This steady state or decrease in energy and resource consumption in developed countries would, nevertheless, result in a net increase in consumption, expecting the earth to support a great deal more wealth, while it is apparent that the planet's carrying capacity is already overstrained, meaning that such growth cannot be sustained. See also: Mickelson & Rees, supra, note 27 at 7-9. 5 3 See John M. Gowdy, Progress and Environmental Sustainability, supra, note 31 at 45. 54Baines & Peet, supra, note 27 at 82. 5 5Up to now, it is generally the case that environmental issues are handled by a Ministry of Environment, but at the same time other departments, like agriculture, economy or traffic, 33 legislators traditionally mainly have regulated the protection of different environmental media, air, water, soil in separate laws. Policies underlying these laws are often not consistent, whereas an integrated approach towards all media would have the advantage of an equal level of environmental protection being applied throughout the law.56 Related to this is the issue of cross-media transfers of pollution, i.e., it should be prevented that pollution is abated at one point, while the problem is simply transferred to another medium where it creates an environmental impact.57 Projects of environmental relevance should undergo an environmental impact assessment, before being carried out, to identify the costs in terms of environmental degradation, resource and energy use, to be weighed against the benefits a project would bring. have an immense influence on environmental politics (with corresponding structures on other government levels) (Norman Vig & Michael E. Kraft, "Conclusion: The New Environmental Agenda" in Vig & Kraft, eds., Environmental Policy in the 1990s (Washington: Congressional Quarterly, 1994) 369-392 at 371-372; Riidiger Breuer, "Umweltschutzrecht" in Ingo von Munch ed. Besonderes Verwaltungsrecht, 9th ed. (Berlin, New York:de Gruyter, 1991) at Rn.48 [hereinafter Breuer 1]). Weale, supra, note 25 at 20,22 points out the international dimension of this aspect, if states pursue different policies or a free-riding strategy. See the "environmental cross-section-clause" in Art. 130r s. II ss.l (3) E U Treaty which prescribes that the requirements of environmental protection are accounted for in the determination and implementation of other community policies (guided by the principles of European environmental policy; Treaty on European Union, "Maastricht Treaty", signed the 7 February, 1992, in effect since 1 November, 1993 [1992 O.J. (C191)]. 56See Vig & Kraft, ibid, at 371. Similar concerns have been uttered by the European Commission who found that harmonization of waste definitions and management across the E.C. was a crucial element of operating the Single European Market efficiently and without detriment to the environment (See Gev Edulje, "European Union Waste Policy" in (1994) 4:5 European Environment 18-20 at 18/19. "Weale, supra, note 25 at 20. For instance it would have to be considered that the incineration of waste to decrease its quantity or its hazardous potential, with a possible gain of energy, at the same time creates air pollution and residues, which often are highly contaminated and need special waste treatment and that emissions contribute to acidification of waters and soil. Cumulative impacts of polluting activities which, in and of themselves, would not present an environmental risk to an extent that would justify their restriction must be borne in mind. 34 2. Precautionary management A fundamental concept of a sound environmental policy is the precautionary principle, which has been made the guiding rule for Canadian and German environmental policy.58 It is a respone to of our limited knowledge on the functioning of the eco-system and its sub-systems and the environmental impact of human life on the natural world. Today, it is apparent that humans have caused severe environmental degradation by polluting and restructuring the natural world (in Europe, there is basically no landscape that is not man-made), and exploiting natural resources, to an extent that has not been realized hitherto. Continuously we are discovering unpredicted effects of human behaviour on the eco-system, so that a strictly precautionary approach towards environmental management seems to be the only reasonable way that can lead to a sustainable human existence. It should be noted that, internationally, the precautionary principle is understood in the sense of international environmental policy, as requiring that "where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for post-poning cost-effective measures to prevent environmental degradation."59 Strictly following a precautionary approach, humans should thus refrain from activity that could lead to environmental impacts whose extent, consequences and controllability are inestimable. In this thesis, however, the precautionary principle is understood in the sense developed in 58See B.C. Ministry of Environment, Lands and Parks, A Legislation Discussion Paper (Victoria, April 27,1992) at 19: The adoption of this principle by the German and other European governments served as a model for British Columbias precautionary approach as set out in the paper. 59Principle 15 of the Rio Declaration on Environment and Development, Rio de Janeiro 3-14 June 1992 A/CONF. 151/5.item 9 of the provisional agenda in (1992) 4:22 Environmental Policy and Law at 268. 35 German environmental policy and adopted by British Columbia. This includes a precautionary approach in the sense of abstaining from activities connected with unknown risks, but also has further implications. The precautionary principle, as it has for instance found expression in the "prevention principle" in Art. 13Or (2) of the E.U. Treaty, requires proactive action to prevent environmental damage, and that any such damage should be rectified at source.60 It explicitly recognizes the existence of uncertainty (environmental and social) and seeks to avoid irreversible damages via a safety margin into policy.61 In German environmental policy and law (Art. 34 Reunification Treaty), which has served as model for British Columbian environmental policy, the principle has been structured into three aspects: (i) the "protection principle," aiming at preventing dangers as defined under traditional police law, (ii) the "principle of risk minimization", where risk is defined as a lower level of probability of damage than it is given in the situation of a "danger", and, (iii) the "planning system-variation", which aims at a considerate use of natural resources.62 In Germany, the "protection principle" (Schutzprinzip) has its origin in the constitutional duty of the state to 60The terms "prevention" and "precautionary principle" are both used, but have substantially the same meaning. Both aim at the prevention of impairment of the environment and allow for the taking of measures already in a stage where a risk has not been proven, but is, on a substantiated basis, assumed. See Himmelmann, "Allgemeines Umweltrecht" in Kimminich, Otto, Heinrich von Lersner & Peter Christoph Storm, Handbuch des Umweltrechts (Berlin: Duncker & Humblot, 1994) (quoted as HdUR and author)at Rn.33-34. 61Organization for Economic Co-operation and Development, Managing the Environment (Paris, 1994) at 43; Dietz & van der Straaten, supra, note 27 at 47-48. The principle presents the "substantive model" for a modern conception of environmental protection, Tunnesen-Harms, "Allgemeines Umweltrecht" in HdUR, supra, note 60 at Rn.5 62See B.C. Environment, A Legislation Discussion Paper, supra, note 58 at 14. 36 protect the life and health of the people and requires intervention of public authorities in the case that these constitutional rights are endangered.63 a) Protection principle and risk minimization principle The "protection" and "risk minimization" aspects of the principle are closely related, as the step from a risk, which represents the possibility that a harmful event might occur, and which is merely suspected (substantiated by facts), to a situation of a danger, where the probability of damage is high, is often not easy to determine.64 The significant characteristic of the precautionary principle is that, in its risk minimization aspect, it lowers the threshold for measures of preventative action beyond the prevention of dangers-oriented traditional police 63Tunnesen-Harmes, "Prinzipien des Umweltrechts" in HdUR, supra, note 60 at Rn.9; BVerfGE 56,54,63; 77,38l,402f; BVerwGE 52,339,346. The differentiation results in a practical difference if the "protection principle" is implemented separately in environmental law, if, e.g., the "neighbours"are protected from negative impacts of polluting activities, such as in § 5 I No. 3 BImSchG. In such a case, the provision grants a right of standing to the respective persons mentioned in it (neighbours), who may then judicially enforce the law. As opposed to that, "pure" precautionary provisions aiming at risk minimization, such as the emission standard-setting TA Luft and § 5 I No.2 BImSchG, do not grant subjective rights to citizens and may thus just be enforced only by administrative authorities (see Breuer 1, supra, note 55 at Rn. 182-187); but see also BVerwGE 72,300,315ff: if protection standards have not been set, it is possible that precautionary emission standards (not point source-oriented, but media- or contaminant-oriented standards) are able to grant subjective rights (Tiinnesen-Harmes, "Rechtsschutz im Umweltrecht" in HdUR, supra, note 60 at Rn. 100.) 6 4For the differentiation see Tiinnesen-Harmes, "Prinzipien des Umweltrechts" in HdUR, supra, note 60 at Rn. 11-17; Michael Kloepfer, "Umweltrecht" in Norbert Achterberg & Giinter Piittner, Besonderes Verwaltungsrecht (Heidelberg: C F . Muller, 1992) at Rn. 663 [hereinafter Kloepfer 2], At this place it cannot be dealt with the dispute among German lawyers on the determination of and differentiation between a "risk"and a "danger." See for that e.g. ibid and Susanne Lottermoser, supra, note 4 at 44-52. The German Federal Administrative Court in its ^///-judgement refused to accept a distinction between the precautionary and the protection principle, arguing that potential risks and known hazards are on a continuum and that both, without a necessary sharp distinction, required an approach to reduce the risks of nuclear power as much as possible, considering the state of science and technology (BVerwGE 72,300) 37 law: it encompasses timewise and spacially distant risks, below the threshold where they already present dangers (in the sense of police law), it allows for measures where an actual damaging incident is unlikely up to merely precautionary measures, and it addresses the issue of cumulative reaction and cross-media transport of pollutants.65 It requires a long-term perspective, considering also the state of environment future generations will live in, and, related to that, a far-sighted spacial perspective to prevent environmental dangers like acid rain in the future.66 Furthermore, the risk minimization principle allows the taking of action already at a point where the probability of actual danger is scientifically not proven, but nevertheless cannot be excluded. In view of our limited scientific knowledge this is important as it legitimizes the implementation of strict pollution standards or even bans of certain products, if these are considered to be of imperceivable and uncontrollable risk, without having to give a scientific proof of probability of damage.67 In a sense, "the precautionary principle shifts the burden of proof from those who would protect the environment having to prove damage, to industry which must not so much prove safety...but must assume that any unnatural substances or natural substances in unnatural quantities, has the "Kloepfer 2, ibid, at Rn. 663. 66Ibid. at Rn. 664. In its Voerde-judgement, the German Federal Administrative Court found that precaution implied a spacially and timely far-sighted approach to emission control, if emissions are threatening the quality of the sensitive environment in regions far-away from the emission-source. It argued that stringent standards were justified without scientific proof of causation because the costs of pollution abatement had to be considered from the point of view of the economy as a whole, and thereby recognized the key issue that a failure to address a pollution problem does not save costs, but merely displaces them elsewhere around the economy, e.g. in the form of forest damage or damage to buildings (BVerwGE 69,37,42f). 67Kloepfer 2, ibid, at Rn.665 with further reference. Weale, supra, note 25 at 80-83. 38 potential for harm and must therefore be either contained, or not used at all, especially if there is evidence of toxicity.68 However, it has to be acknowledged that risks can never be totally ruled out, particularly in an industrial society as we live in. Arguing that an element of risk always remains and has to be accepted in an industrial society, the use of nuclear power has been legitimized by the German Constitutional Court, and this argument appears repeatedly in environmental law literature.69 It is a questionable one, as it explicitly acknowledges the potential of danger inherent to a specific action, but declares it as negligible, implicitly putting economic considerations in priority.70 Transferred into other areas of environmental management, for instance the management of toxics and persistent pollutants, where harmful potential scientifically cannot yet be proved, but nevertheless is suspected or claimed by some scientists, such an interpretation of the precautionary principle seems too narrow and not very far-sighted. From a sustainability-perspective it must be possible to restrict such potentially harmful conduct, as the once-unforeseen threats of ground-water contamination 6 8P. J. Taylor, The Precautionary Principle: Implications for the Paris Commission (1988), at 5, quoted in B.C. Environment, A Legislation Discussion Paper, supra, note 58 at 20. 69"Beyond the threshold of practical perceivability of a possible incident of damage," ("Restrisiko"), BVerfGE 49,89, 140ff. Kloepfer 2, supra, note 64 at Rn. 666. It has to be mentioned that the court decided upon an action brought by citizens who claimed that the state had a consitutional duty to protect peoples life and health from nuclear hazards. 70It is true that in a democratic and liberal society the freedom rights of individuals need to be balanced against other societal interests that would speak for their restriction and that such a restriction would need to be proportional (see e.g. Breuer 1, supra, note 55 at 532 with further reference). But nevertheless, it seems irresponsible to declare the -scientifically proved- risk of a nuclear accident as inconceivable under modern control standards. In a decision upon a "remaining element of risk" it cannot be left out what the actual consequences of a realization of the risk would be, and the risk would gain importance in the balancing of interests in the proportionality test, the more important interests were likely to be harmed and the greater the damage would be. 39 by persistent pollutants leaking from industrial or waste disposal sites or the acid rain problem demonstrate.71 This fact is partly acknowledged by the essential aim of the risk minimization principle, to keep environmental impacts at a minimum. It legitimizes restrictive preventative state action in cases where environmental risks are only suspected or insufficiently proved to provide a "safety margin."72 b) The "resources for the future-aspect" of the precautionary principle The third aspect of the precautionary principle is that it requires "in a future perspective, the management of our future environment, in particular the protection and the development of the natural foundations of life."73 Practically, this aspect is closely interwoven with the other two, as described above.74 It demands a prospective management of the environment to protect humans from environmental hazards and the loss of environmental quality, and, similarly, to protect the environment from human impairment. It has been interpreted in a quite anthropocentric manner as serving the purpose to create "reserves for future pollution" in the interest of industry.75 Others view it more broadly as a mandate to plan environmental management carefully in order to preserve "room to maneouvre" ("Freiraumthese") for future use of the environment, be it recreational, residential, agricultural or for the purpose 7 1 Similarly arguing: Tiinnesen-Harmes, "Allgemeines Umweltrecht" in HdUR, supra, note 60 at Rn.32 72Bender & Sparwasser, supra, note 3 at Rn.48; Kloepfer 2, supra, note 64 at Rn.667. 7 3 B.C. Environment, A Legislation Discussion Paper , supra, note 58 at 19 referring to the German version of the precautionary principle, the "Vorsorgeprinzip." 74Kloepfer 2, supra, note 64 at Rn.669. 75BT-Drs. 7/179 at 32. 40 of environmental protection.76 From the ecological point of view on environmental protection taken above, it is clear that a narrow, use-oriented interpretation must be rejected. The significance of this aspect of the principle lies in its aim to guarantee the sustainability of human and other life on earth in the long-term, which implies the maintenance of a healthy natural environment, independent from its usefulness for humans. c) Implications of the precautionary principle for waste management: the hierarchy of the three R's To prevent further, possibly irreversible damage to the environment, the discharge of substances which are foreign to or rarely occur in the eco-cycles and are mainly extracted from the stocks of fossil natural resources and energy should thus be minimized or, even better, stopped. Consequently, the speed of depletion of fossil natural resources needs to be reduced considerably, which could be achieved by converting radically to recycling of minerals and synthetics and switching to renewable resources. However, a full-circle economy with a 100% recycling-quota is unlikely ever to be achieved. Production, consumption and recycling processes inevitably will always cause a continuous depletion of resources and a discharge of waste into the environment; thus, a restrictive, precautionary approach appears to be the sole reasonable solution. This is particularly relevant for persistent pollutants which are not, or are only slowly, broken down in the environment and often present an environmental risk in minimal concentrations. 76See Kloepfer 2, supra, note 64 at Rn.668; Bender & Sparwasser, supra, note 3 at Rn.48. The so-called "Freiraumtheorie." 41 A precautionary approach towards waste management would account for the regenerative capacity of the eco-system and seek to limit the harvesting of resources and discharge of waste to the carrying capacity of the earth. It would, however, not strive for an unrealistic "zero-waste discharge" target, which is not feasible and could undermine the credibility of environmental policy. Environmental solutions should accept the irreversible fact that we live in an industrial world. Thus, the aim must be to convert industrial production patterns and consumption habits towards an environmentally compatible state that recognizes ecological limits, but makes use of the possibilities available.77 Such a precautionary approach underlies the "hierarchy of the three, respectively five, R's" of waste management policy: These mean, that the reduction (prevention) of waste must be the prior goal, followed by the reuse of waste material, the recycling of waste for material or energy recovery, and finally, as the least desirable solution, the safe residual disposal.78 (1) Prevention of waste Prevention of waste, without doubt the least environmentally impacting alternative, must be made the primary goal of waste management. Waste minimization has two aspects, a quantitative one, aiming to reduce the amount of waste produced, and a qualitative one, seeking a reduction of toxicity.79 Waste minimization can be achieved best by an integral life-7 7SeeB.C. Environment A Legislation Discussion Paper, supra, note 58 at 14. 78Bender & Sparwasser, supra, note 3 at Rn.883; B.C. Environment, ibid at 12-13; Matthew Gandy, Recycling and Waste (Aldershot: Avebury Studies in Green Reserach, 1993) at 45, [hereinafter Gandy 1993]. 79Gandy ibid at 45, with further reference; B.C. Environment, ibid at 12. 42 cycle approach as it has been described above, to provide for production of goods with the least environmental impacts in resource consumption and pollution. With respect to qualitative waste prevention a minimization of toxic and persistent materials in products is indispensable to prevent future disposal and cleanup problems. A waste prevention strategy would also require to improve the quality, efficiency and durability of products, to further the use of reusables and refillables and to influence people's consumption behaviour as ultimately, the market-demand directs production.80 (2) Reuse of waste The second-preferable option would be to reuse waste materials. Gandy differentiates here between the reuse of materials within production processes, and the reuse and repair of end-products to prolong their usefulness before entering the waste stream. Pre-consumer recycling within production processes can be subsumed here, as it is much easier than post-consumer recycling, because contamination of the recyclables and economically manageable quantities are not such a problematic issue (production waste in proximity to industry being potential raw material).81 With respect to products, reuse schemes would include the establishment of returnable container schemes, the furtherance of reusable products in general and the elimination of 80This touches a crucial point: RSU, supra, note 28 at 40 emphasizes that modern economy is not only geared towards meeting demands, but also towards creating such demands, thus continuously creating new artificial scarcities where production becomes an end in itself. See also Macdonald, supra, note 17 at 274-275. 81Gandy 1993, supra, note 78 at 45. 43 built-in obsolence in consumer durables.82 Reuse and refillables schemes would need to be considered carefully in their environmental impacts, as it is not unquestioned if they would in any event, due to the advantage of energy and resource preservation as well as waste reduction, present the environmentally friendlier alternative to disposable materials.83 This relates to the issue that a shifting of environmental impacts, by trying to remedy impacts at one point to another, should be prevented. (3) Material and energy recycling Recycling includes two options: to reclaim raw material from the recyclable to be used in new products and to recover energy from burning waste materials. Post-consumer material recycling includes a variety of measures, such as the collection of waste paper, glass and plastic, the magnetic separation of ferrous scrap at some incineration plants and waste transfer stations, and to compost organic waste.84 Options to recover energy from the calorific value of materials include incineration in heating and power systems, the production of refuse derived fuel, the use of landfill gas as a 82Particulary in technological instruments, which nowadays often are not repairable, but pose immense disposal problems. 8 3For the complexity of studies on life-cycle impacts of various alternative packaging types see the comparative study on the use of refillable milk glass bottles and disposable plastic bags as packaging for milk, suggesting, e.g., that refillable systems will use more wood and nuclear power, have a higher acidification impact and cause more input of nutrients, whereas plastic bags use up more landfill space and fossil energy, see Hans-Jurgen Oels, Life Cycle Assessment on Packaging Systems (Berlin: Federal Environmental Agency, 1994), Figures 5a-c. 84It can be organized in curbside-collection schemes, like the blue-box system, so-called bring-systems, where centrally on-street collection facilities or recycling centers are provided and centralized sorting plants (Gandy 1993, supra, note 78 at 47). 44 fuel source and high temperature pyrolysis of tyres and plastics.85 It is debatable whether this form of waste treatment should be called "recycling" at all, as ultimately, the burnt materials are destroyed and not used again, which the term implies. The recovery of energy as an alternative to material recycling is a highly contentious issue in terms of its environmental impacts.86 As long as waste can simply be burnt, this presents, in economic terms, the cheapest and easiest alternative for waste producers, so that incineration in effect removes the incentive to develop innovative environmentally friendly production technologies and products. It is beyond the scope of the thesis to get further into the dispute on the merits of material and energy recycling, but it should at least be mentioned, as there is currently a strong tendency in European countries to open the doors for more incineration of waste.87 While recycling, in general, is useful, it often is an end in itself, as it is currently impossible to recycle many materials to the quality standard of the original raw material. This results in an ongoing demand for new primary raw material, accompanied by a production of secondary material of minor quality which is manufactured into more or less useful products, ranging from park benches to the filling of jackets. Accordingly, the reduction of waste and 8 5 Gandy, supra, note 1993 at 47. 8 6For instance, it results in air pollution, destroys potential raw material and takes the pressure from waste producers to find the ultimately needed solutions to prevent and reduce waste. The ash from incineration often is highly toxic and needs to be disposed of safely in special landfills, causing high overall disposal costs and ultimately creating possible future cleanup problems (see James T. O'Reilly, "After the Applause Ends" (1994) 41:2 Federal Bar News & Journal 106-113, at 109-110). 87Gandy 1994, supra, note 46 at 114/115, argues that the current environmental policy in Germany is a "market-lead incineration path;" it is predicted, that the 1993 Technical Instructions on Waste from Human Settlements, enacted under the federal Waste Management Act, will tighten environmental controls on landfills to such an extent that a further 36 incinerator plants will be built in Germany by the early twenty first century (Gandy 1994 at 104, relying on figures published in Warmer Bulletin, May 1993). See also "National Affairs/Germany/Waste Recycling" (1994) 24:1 E.E.L.R. at 30. 45 the exploitation of resources cannot be sufficiently addressed by the means of recycling efforts, so that efforts of waste prevention and reuse must be granted top priority in a sound waste management concept.88 (4) Residual disposal Disposal of waste in landfills is the traditional form of waste treatment, which for several reasons has become increasingly unpopular over the past years. The discovery of contaminated ground and ground water, caused by leaking landfills and migrating pollutants in the soil, has resulted in the so-called NIMBY syndrome, which stands for the phenomenon that people frequently reject the construction of waste treatment facilities in their neighbourhoods.89 Additionally, landfills can only be safely constructed on geologically suitable ground, which limits the number of possible sites and has in the past years caused a "landfill crisis," as disposal space is running out, without any new sites to replace it under construction.90 In any event, as the continuously emerging contamination and cleanup problems show, disposal of waste only shifts the problem of pollution to a later time, where it often takes on unpredicted dimensions, due to cumulative effects and cross-media transfer. Disposal should therefore be only the last resort of waste management, and, if it is the only option, be undertaken in a cautious manner, where pollutants are well-contained and the site is monitored. 88The recycling of waste will be further considered in the context of a case study on stewardship for packaging in Chapter 5. 890'Reilly, supra, note 86 at 110. 90Peat Marwick Stevenson & Kellog, supra, note 2 at 1. 46 In summary, a sound waste management policy guided by the precautionary principle would strictly focus on waste prevention. Ultimately, there is no other way to reduce resource depletion and prevent further environmental degradation through pollution caused by production processes and waste. 3. Cradle-to-grave principle The principle to consider environmental impacts of a good throughout its whole life-cycle is closely related to the precautionary principle.91 A precautionary waste management policy implies inter alia that it is not sufficient to consider only the various options of waste treatment of a product, once that it has been discarded, but that an anticipatory approach must be taken, to account for environmental impacts arising from the production process and the use of a product as well.92 For life-cycle assessment, the instruments of eco-audits or productline-analysis are used which include (a comparative) examination of the environmental, as well as the social and economic impacts of a product in a very broad sense.93 Life-cycle assessments will further the awareness of manufacturers of the 91Kloepfer 2, supra, note 64 at Rn. 671. 92Firms therefore should establish environmental codes df practice and environmental audit procedures (Canada, A Framework for Discussion on the Environment (Ottawa, 1990) at 12). Kloepfer 1, supra, note 13 at Rn.24. 93Richard N. L. Andrews, "Risk-Based Decisionmaking" in Vig & Kraft, supra, note 55 209-226 at 227. E.g., a cotton product would be assessed with respect to the impacts of the production of cotton (pesticides, agricultural practice in the country of origin), the impacts of producing the end-product (particularly air, water pollution), its durability (waste-problem); this would be compared to the environmental data of alternative products, to reach a final conclusion on the "pro's and con's" of manufacturing that product (uZwischenbericht der Enquete-Kommission "Schutz des Menschen und der Umwelt -Bewertungskriterien und Perspektiven fur umweltvertrdgliche Stoffkreisldufe in der Industriegesellschaff (BT-Drs. 12/5812) at 41-43, case-study on textiles at 108-132). 47 environmental impacts of their products, which is likely to lead to improved product design and material choices, especially if producers are given additional incentives to improve the environmental compatibility of their products.94 As such studies are complex and cost-intensive it is advisable to develop standards for products on a national or trans-national basis, which would also minimize possible barriers to trade. These would serve as a basis for firms to assess the environmental compatibility of their products. B. The actors in environmental management: introduction to the polluter pays principle A precautionary and integrated waste management implies that people accept individual and collective responsibility for environmental impacts, as set out above. Traditionally, waste management has been considered a public task handled by local communities. Waste producers are often only obliged to dispose waste into the public waste management system, to ensure orderly and safe disposal. As a consequence, the environmental costs of waste management, be it the operating of disposal facilities, the monitoring of closed landfills and eventually the undertaking of cleanup measures, or the running of curbside-recycling-systems are mainly public costs. These are ultimately borne by the taxpayer, irrespective of his or her contribution to the production of waste. A part of the costs is recovered from charges levied for using the public waste system, tipping fees charged at landfills and contributions of industry to the municipal 9 4 A great portion (90%) of the waste produced is a by-product of production processes, which shows the importance of life-cycle assessment for products. Gandy 1994, supra, note 46 at 23-28 referring to a study by N. Koptyciok & R. Oswald, "Eine Abfall-Odyssee" in Institute for Ecological recycling, Abfall vermeiden (Frankfurt a.M., 1988). 48 curbside-systems. However, the main burden of costs remains with the public. In times of tight budgets and a continuous rise of waste management costs, due to tightened environmental standards, this represents a significant incentive for governments to seek to shift the burden towards other, private, actors, the producers of waste. Such cost-shifting is in most cases justified by reliance on the principle "that the polluter should pay." The relevance of this principle, however, should not be reduced to an economic function. It may also serve as an integral instrument in environmental management to ensure the responsible participation of all members of society as an essential premise for reaching a sustainable, environmentally friendly society. The notion "to make the polluter pay" makes sense as it offers the possibility to give producers of waste an incentive to accept their environmental and social responsibility by means of coercive legislative measures or influencing economic instruments. In the following part, the concept of "polluter pays" will be set out, including the history and the various versions of the principle, with a view to examining it as a possible tool for the implementation of the concept of responsibility as it has been developed above. In this context, two further concepts, the "common burden principle," as it has been developed in German environmental policy and law, and the "cooperative principle," will be discussed as well. 49 1. Historical background of the polluter pays principle The polluter-pays principle (PPP) has become a widely accepted concept of environmental policy since its formulation as a "background economic principle for environmental policy"95 by the OECD in 1972. The principle, as then adopted, implies that the polluter should bear the cost of pollution reduction measures necessary to bring the environment to an "acceptable state" as defined by public authorities. Accordingly, the polluter should pay the costs of pollution prevention, control and restoration measures, however they are determined by the state, and irrespective of whether these costs were incurred as the result of the imposition of some charge on pollution emission, or some other suitable economic mechanism, or were debited in response to some direct regulation leading to enforced reduction in pollution.96 The PPP, however, did not pursue a full internalization of environmental costs. It was neither seen as a rule for the compensation for damage caused by pollution nor served it as an instrument to determine liability for environmental harm.97 The idea behind it was basically a non-subsidization principle,98 to preclude possible distortions of international trade and investment patterns caused by government assistance to polluters.99 9 5 OECD, Managing the Environment, supra, note 61 at 41 (italics are mine). 9 6 OECD, The Polluter Pays Principle (Paris, 1975) at 15. 9 7 OECD, The Polluter Pays Principle, ibid, at 6. Sanford E. Gaines, "The Polluter-Pays Principle: From Economic Equity to Environmental Ethos," (Summer 1993) 26:423 Texas Int. L.J. 463-496 at 468. 9 8 OECD, ibid at 6-7. Exemptions were allowed for some industries where PPP would create severe difficulties, transition periods for countries otherwise facing socio-economic problems in consequence of their environmental policies and situations where no serious trade and investmet distortions were to be expected. "The PPP is the exact opposite to the so-called "Coase-theorem," which claims the principal equivalence of positive and negative incentives as instruments of environmental policy. According to this, it makes no difference (ideal circumstances assumed) if the polluter is 50 The origins of the principle lie in the welfare economic ideas like Pigou's of the 1920s, that, ideally, prices of goods and services should reflect their full social costs. To avoid an over-utilization of resources and pollution, prices should "tell the truth" on environmental costs related to products.100 Making the polluter pay is seen as one way to internalize these environmental externalities, as it allocates the equivalent of the benefits foregone by pollution to those agents that cause it.1 0 1 The PPP in its original sense thus was a mere economic cost allocation instrument, where the costs serve as an economic incentive for "the polluters" to improve the environmental compatibility of their conduct.102 In Germany, a similar principle has for a long time been guiding the police law, the "causation principle."103 It implies that a person has to prevent the causation of "negatively" targeted through financial liability or if he is given a positive incentive through subsidies or compensatory payments from the person injured (!) for the abatement of pollution (the so-called "bribes and charges" controversy). It seems questionable from a moral point of view that the person who suffers from environmentally harmful conduct should pay the polluter for stopping the pollution. The practicability of this theory also seems limited in view of the difficulties arising if the persons suffering from pollution need to be organized, the free-riding problem and the characteristic of the environment as a "public good", which would lead to the group of persons profiting being always bigger than the group of persons that are willing to pay (Kloepfer 1, supra, note 13 at 86 with further reference, Opschoor & van der Straaten, supra, note 32 at 71. See Ronald Harry Coase, "The Problem of Social Cost", (1960) 3 J. Law & Econ. 1). An example is the Waterpenny-model implemented in Baden-Wiirttemberg; To achieve the aim of saving water, a tax is imposed on city-citicens, who present a group that is easily targetable and which tends to be better-off than the farmers, who receive subsidies from the funds raised if they refrain from using and watering their land (see Bender & Sparwasser, supra, note 3 at Rn.788). 100Ernst-Ulrich von Weizsacker, Erdpolitik, Okologische Realpolitik an der Schwelle zum Jahrhundert der Umwelt (Darmstadt: Wissenschaftliche Buchgesellschaft,1989). 1 0 1 OECD, Managing the Environment, supra, note 61 at 41. Gunter Hartkopf & Eberhard Bonne, Umweltpolitik 1 (Opladen: Westdeutscher Verlag, 1987) at 109-110. 102Bender & Sparwasser, supra, note 3 at Rn.45; Hartkopf & Bohne, ibid, at 110. 1 0 3The German translation of "polluter pays principle" is identical with this term originating from police law (Verursachungsprinzip). As a consequence, both principles are sometimes discussed together, without differentiation. With the ongoing extension of the PPP this is becoming less problematic, but nonetheless sometimes is confusing. 51 environmental harm by her conduct, and that in the event of an environmentally harmful incident she is obliged to remediate the consequences. Thus, the causation principle is a substantive legal rule for the allocation of liability, and its main role lies in the allocation of costs. It is from this starting point and other general considerations of justice, as they are found in delict law, that the PPP has been approached in German environmental policy, connecting it with the welfare economics as described above.104 Over the years, the initial version of the PPP, as it had been laid down in plain language already in the Environmental Program of the Federal Government of 1971, has been extended in its function, which is partly due to the fact that the principle is influenced from different scientific angles, the economics, social sciences, environmental policy and law.105 In the following, the various "strands" of the PPP will be delineated as they have developed in the OECD-context, in the European Community, Germany and Canada. Two main issues lie at the heart of the principle. First, there is the question of the scope of liability. The principle could only address environmental costs, which also raises the question of which costs should be covered. However, it could also be given a "substantive" content and address the issue of allocating liability for environmental protection measures. Secondly, the question must be 104Bender & Sparwasser, supra, note 3 at Rn.51; Kloepfer 1, supra, note 13 at 83ff; Tunnesen-Harmes, "Prinzipien des Umweltrechts" in HdUR, supra, note 60 at Rn.38. Under common law, similarly, exists the rule that the polluter who creates an environmental harm is liable to pay compensation and costs to remedy that harm, Restatement (Second) of Torts §§ 822,826 (1977). As the case study on remediation of environmental damage will show, the causation principle is partly still the guiding rule for the allocation of costs and liability in Germany, where the traditional general police law is applied in areas that are not regulated by specific environmental legislation. 105Kloepfer 1, supra, note 13 at 85ff. It was then simply stated that "whoever impairs or damages the environment, shall pay for the costs." See also Gaines, supra, note 97 at 466 and 469. 52 resolved of how to define "the polluter" as the payer of costs and addressee of such measures. Before turning to these issues, the different versions Vs System-Variationen") of the PPP will be introduced, as they have been developed in German environmental policy and law. 2. System-variations or versions of the PPP The first version of the PPP is built on administrative law, obliging polluters to reduce environmental impacts to a minimum prescribed by law. Such law typically aims to prevent, minimize and, if that fails, to remediate pollution. The allocation of costs follows the substantive administrative obligations, in extent and legal ground. The polluter must bear the actual costs of environmental protection measures. Consistently applied this rule would also require a non-compliant polluter to pay the costs of environmental protection measures he would have had in case of compliance with the law.106 Under the second version of the PPP, the costs to be borne by the polluter are not only determined by the extent of her substantive liability under the administrative law, but require her also to bear the costs of environmental harm caused by her pollution in compliance with the law. Accordingly, polluters would have to pay for the environmental costs of socially, i.e. legally, accepted pollution as well. This idea is useful where one seeks to internalize the 1 0 6For the versions, "System-Variationen," see, e.g., Breuer 1, supra, note 55 at Rn. 13-16; Kloepfer 1, supra, note 13 at 84 with further reference. This version corresponds with the initial (German) interpretation of the PPP, see OECD, The PPP, Statement of the West-German delegation, supra, note 96 at 68,78 and Umweltbericht 1976 der Bundesregierung, BT-Drs.7/5684 at 8. 53 costs for the utilization of the environment, such as its waste assimilation capability, and could be realized via charges, fees or permits. The third version completely disconnects the link between the allocation of costs from the material liability for environmental protection as it is set down by environmental law. In addition to the costs determined under the first two versions, the polluter should pay a price for the use of scarce environmental goods. The artificial scarcity price, determined by the state, should be fixed at a level that accounts for the scarcity of the environmental good and is high enough to present an economic incentive to restrict environmental impacts to the necessary desired level.107 3. The scope of the PPP - the PPP as a cost and liability allocation instrument Since 1974, there have been various attempts to extend the scope of the PPP beyond its original meaning restricted to the allocation of costs for pollution control, prevention and abatement measures. Inseparable from this issue is the choice of instruments to implement the PPP. Initially, it was intended to rely as much as possible on the use of economic instruments. These can be categorized as effluent and input charges and taxes, subsidies, deposit-refund systems, financial enforcement systems (administrative charges) and the creation of markets through the introduction of emission permit trading systems or the privatization of common property sources.108 Along with (proposed and existent) extensions 107These versions can be applied cumulatively or singularly. Whereas the first version can be implemented through traditional instruments of a command and control scheme, which, for instance, provides for reimbursements for costs, under the second and third version the costs can (also) be imposed by means of economic instruments (Breuer 1, supra, note 55 at Rn.16. See also OECD, Managing the Environment, supra, note 61 at 42). 108See OECD, Economic Instruments for Environmental Protection (Paris,1989). 54 of the application and scope of the PPP goes an alteration of the range of instruments suggested for its implementation. Initially, the PPP should solely serve the allocation of costs of pollution prevention, control and remediation.109 A clear differentiation was made between the allocation of costs for economic reasons of efficiency and optimality to legal liability and responsibility.110 It has been suggested that the principle be expanded beyond this economic focus, to a substantive principle for the allocation of liability, for taking environmental protection measures and for paying damages caused by pollution. As Kloepfer stated in 1989, the PPP nowadays no longer is considered a mere economic cost allocation principle in environmental policy. It is now seen as a general rule stating that the person who causes pollution should principally bear the substantial and financial responsibility for environmental protection, be it by taking preventive, control or remediative measures or compensating financially for pollution.111 It is agreed today, that environmental quality can only be achieved and maintained by taking a variety of measures and procedures. The choice of instruments,- regulation, taxes, charges, state aids, permits, agreements, is seen not as a matter of principle, but depending on the nature of the environmental problem, 1 0 9The original OECD version speaks only of control and prevention, whereas later on in OECD literature (and the Delegation of the Federal Republic of Germany in the 1975 PPP-paper, supra, note 96 at 67: "compensating for pollution"), remediation costs are mentioned as well (OECD, Managing the Environment, supra, note 61 at 42 with further reference). This has probably been overlooked by Gaines who limits the PPP to costs for prevention and pollution control, supra, note 97 at 473. 1 1 0 OECD, Managing the Environment, supra, note 61 at 41. ulKloepfer 1, supra, note 13 at 84. See also: Breuer 1, supra, note 55 at Rn.12; Eckhard Rehbinder, Politische und rechtliche Probleme des Verursachungsprinzips (Berlin: Beitrage zur Umweltgestaltung Heft A 15, 1973) at 36; for Art.l30r II E U Treaty: Himmelmann, "Allgemeines Umweltrecht" in HdUR, supra, note 60 at Rn.38; Environment B.C., A legislation discussion paper, supra, note 58 at 14. 5 5 circumstances and the administrative and legal frameworks.112 The reasoning behind this extension of the PPP to material obligations of the polluter, beyond financial liability, is that it does not make a qualitative difference under the aspect of allocation of costs if the costs are allocated indirectly, by establishment of duties to take pollution preventive, control or remediative action, or directly by the imposition of charges, duties to compensate financially for environmental protection measures, such as reimbursement of cleanup costs or monitoring costs of public authorities. In the end, the substantive environmental protection duties, as they are imposed under traditional command and control legislation and law on product standards and procedures, for example, environmental impact assessments, lead to an imposition of the costs of environmental protection on the polluter as well - theoretically at least, if they are not borne by the public, via subsidization or the financing of public authorities - and as such can be viewed as an "economic incentive in a broader sense."113 An extension of the PPP is useful for implementing the required integrated, precautionary approach towards environmental protection. To realize the individual responsibility of all social agents for environmental impacts, a broad and consistent range of instruments for implementation is needed. It thus seems logical to extend the application of the PPP to issues of liability for environmental protection measures and damages. The advantage could also be a consistent approach towards liability throughout environmental policy and law. A significant example for extending the PPP is to use it for allocating liability for environmental damage caused by polluting activities. Damage costs are not included in the 1 1 2 OECD, Managing the Environment, supra, note 61 at 42,13-14, with reference to the environmental policy of the E.C. Tiinnesen-Harmes, Allgemeines Umweltrecht, in HdUR in HdUR, supra, note 60 at Rn.38. 113Kloepfer 1, supra, note 13 at 84. 56 original version of PPP, but, as social costs of pollution do not only embrace the costs caused to the general public, but also those caused to third persons who suffer from pollution, the inclusion of damages as costs that principally must be paid by the polluter makes sense. As a matter of justness and common sense it has always been a rule of tort law that a person injuring another person has to compensate her for the loss.114 It is also increasingly discussed to apply the PPP in the regulation of resource use. Under slogans such as "user pay," the question of resource pricing is addressed, where subsidization by taxpayers and cross-subsidization among water service users would be abolished. User costs are the benefits foregone by consuming a resource now rather than leaving it for future consumption. Economic and regulatory instruments should be used to achieve the aim that the costs of harvesting or extracting a resource, as well as extraction-associated externalities and "user cost" elements are met.115 Through such systems the tacit promotion of exploitation of natural resources, through state subsidies for raw materials (oil, coal) or through operating public waste and water facilities to a great extent on public cost, could be redressed. 114Tunnesen-Harmes, Allgemeines Umweltrecht in HdUR, supra, note 60 at Rn.35 therefore argue that a recursion to the PPP as guiding rule for liability allocation for damages is not needed. This may be countered by the advantage of a consistent approach towards liability throughout environmental policy and law. A first link between the economic and the legal principles relating to damage compensation has also been made by OECD in 1991, when it emphasized the necessity to internalize damage costs (Managing the Environment, supra, note 61 at 42). Such an extension of the principle can be noted in legislative efforts such as the proposed Directive on Civil Liability for Damage Caused by Waste of the European Community, which expressly relies on the PPP as a foundation for the allocation of liability (COM(91)219 fmal-SYN 217; see Edulje, supra, note 56 at 20; Opschoor & van der Straaten, supra, note 26 at 66). 115See OECD, Managing the Environment, supra, note 61 at 45, referring to Pearce & Turner, supra, note 27; see also Baines & Peet, supra, note 27 at 88-90. 57 Finally, a new concept established to implement the PPP is the idea of stewardship. It implies that environmental degradation costs should be included as a cost factor right from the time products and processes are developed, resulting in "ecologically fair prices."116 Accordingly, producers, distributors and vendors, as well as, ultimately, consumers, are targeted by measures imposing responsibility for products, from cradle-to-grave. Such stewardship models have recently been implemented in waste management and will be considered in a case study. 4. The person of the polluter under a concept of environmental responsibility The trend to extend the PPP is related to the question of who should be considered a "polluter." The PPP, as it has been developed by the OECD and adopted by states, has been called a value-free economic instrument for cost-allocation.117 In the German context, the notion that the PPP has no inherent normative and moral content may also be influenced by its wording, "causation principle," causation being determined strictly scientifically. Accordingly, the question of defining "the polluter" was left to national environmental policy.118 A polluter, generally, is someone who contributes to the degradation of the environment, which gives rise to social costs. Environmental pollution may result from several conditions, occurring simultaneously - in the case of cumulative effects - or successively - through a chain of polluters. Thus, there may be a variety of agents that possibly could be held liable 116Federal Environmental Ministry, Environmental Policy in Germany (Bonn: July 1994) at 13. 117Hartkopf & Bohne, supra, note 101 at 111. 1 1 8 OECD, Managing the Environment, supra, note 61 at 42. 58 under the PPP. The question of who should, in a specific case, be determined as the person liable, "the polluter," should be addressed from the standpoint taken above, that the ultimate aim should be to achieve a maximal level of environmental protection and that this can be realized best if everyone assumes responsibility for their environmentally impacting acts. It is therefore reasonable to adopt a broad perspective on the possible range of polluters, including not only the persons directly, physically causing pollution, for example, the consumer who dumps a product or the car-driver, but also others, that indirectly contribute to environmental degradation, for example, the manufacturer, the producer of gasoline, the vendors. From that group, the persons to be held liable for costs or environmental protection measures should then be determined in accordance with a variety of factors. The polluter should be chosen pragmatically at the point in the chain, or among the contributors to pollution, where environmental protection can be achieved most effectively and efficiently, taking the administrative and economic circumstances into account.119 Factors to be considered also include the ability to influence the environmental problem effectively or which persons can be targeted most effectively. However, the PPP does not require the imposition of responsibility on the polluter in each and every case, notwithstanding the respective circumstances.120 Such a principle would lead to socially incompatible and unjust consequences and to conflicts with our legal systems, which require that aspects of fairness and justness as well as equity and the proportionality of public measures need to be maintained. Therefore, the determination of the polluter and 119Himmelmann, "Allgemeines Umweltrecht" in HdUR, supra, note 60 at Rn.39, with reference to the policy of the European Commission; Hartkopf & Bohne, supra, note 101 at 111; OECD, The PPP, supra, note 96 at 26. Rehbinder, supra, note 111 at 3Of. 120Kloepfer 1, supra, note 13 at 88. 59 his or her share of responsibility should be guided by such factors as the actual contribution to the problem, the impact liability would have on a person and her capability to pay, for example on a small firm as opposed to a huge one, who carries the burden more easily, the impact on other social groups, such as a possible loss of jobs or rising prices or the impact on competitiveness.121 In recognition of the fact that the imposition of responsibility might be either impossible, as a polluter cannot be determined or such liability would be unlawful or not supportable, German environmental policy has developed the "common burden principle." It means that environmental protection is financed by the state and that costs are redistributed via the tax system.122 The common burden principle recognizes the environmental responsibility of the society as a whole, which benefits from polluting activities and is also called upon where the balancing of interests -social, economical and distributional- speaks against the application of the PPP, which is generally the primary rule for allocation of responsibility. It is of independent relevance where the state takes precautionary environmental protection measures.123 The PPP could also be applied as a concept of group-responsibility for environmental degradation.124 Cases where collective responsibility could be a useful approach are those, where persons with common characteristics contribute indirectly to environmental harm, 1 2 1 See Gaines, supra, note 97 at 473; Tiinnesen-Harmes, "Prinzipien des Umweltrechts" in HdUR, supra, note 60 at Rn.38; Kloepfer 1, ibid, at 86. n2"Gemeinlastprinzip", Kloepfer 1, ibid, at 89; Breuer 1, supra, note 55 at Rn.674; Hartkopf & Bohne, supra, note 101 at 112-113. 123Breuer 1, ibid, at Rn.674-675; Bender & Sparwasser, supra, note 3 at Rn.53. 1 2 4 OECD, The PPP, supra, note 96 at 26. In German "Gruppenlastprinzip" See Bender & Sparwasser, supra, note 3 at Rn.54. 60 such as the manufacturers of cars, whose products cause air-pollution, use valuable resources and present a substantial problem in waste management, or the chemical industry, who produces hazardous waste. Such groups could be targeted via charges or taxes to contribute to the solution of environmental problems they cause. These could supply funds for remediation or damages to be paid to persons suffering from pollution. The collective responsibility principle is particularly useful in cases of cross-media transfer, where pollutants cause hanriful effects timewise and spatially delayed from their source so that proof of causation by a specific polluter is often impossible (e.g. contaminated sites, acid rain). 5. Cooperative environmental management A final idea to be mentioned in the context of the various stakeholders involved in environmental management is the principle of (social) cooperation, adopted by Canadian and German governments.125 Relying on the insight that environmental protection is much more likely to be successful, if it is pursued in a common, co-operative effort, the (procedural) rule implies that environmental protection should be based as much as possible on a consensus among state and other parties. Examples for its application are informal consultations between authorities and industry over the issuance and content of permits, self-obligations of industry to reduce environmental impacts and consultation of stakeholders in legislative processes. The cooperative principle acknowledges that in a liberal state, not all areas of life are subject to state regulation and that a balanced relationship must be maintained between 125Bundesregierung, BT.-Drs.7/5684 at 9; B.C. Environment A Legislation Discussion Paper, supra, note 58 at 19. 61 "individual liberties and social needs."126 It enables the integration of stakeholder knowledge and interests at an early point of state decisions, improving the acceptance of state measures, but is often also accompanied by an exclusion of the public from consultations, the possibility of hollow compromises and a lack of enforceability of informal agreements on environmental protection measures.127 6. Concluding remarks on the PPP as an instrument to implement environmental responsibility In summary, there is a trend to apply the PPP in various areas of environmental protection, including the management of resources and the prevention of environmental damage, tackling it from a preventive and future-oriented angle, as well as the remediation of environmental harm and payment of damages, addressing environmental protection reactively. Common to the suggested extensions of the PPP is the notion that the environment should not longer be considered as free public good which can be exploited and harmed without consequences. The aim is also to make environmental protection efficient, both economically and environmentally.128 The extension of the PPP and the instruments suggested for its implementation is a logical consequence of a broadened approach towards environmental protection, pursuing an integrated and precautionary management of the environment. 126Bundesregierung and B.C. Environment ibid. Breuer 1, supra, note 55 at Rn.18. Hartkopf & Bonne, supra, note 101 at 114. 127Kloepfer 2, supra, note 64 at Rn.678-680; Bender & Sparwasser, supra, note 3 at Rn.55; Hartkopf & Bohne, ibid, at 114-115. 128Breuer 1, supra, note 55 at Rn.12; Bundesrepublik Deutschland, Umweltbericht 1990, BT-Drs.il/7168at27. 62 It is apparent after the considerations above, that the determination of the polluter will involve value judgements, as it can only take place in the context of the environmental policy that is to be implemented, which is inevitably based on a certain worldview. This inseparable link of the PPP to environmental policy is missed by those who, from a merely economic perspective, claim that is has no moral content. The notion that the polluter should pay itself - it could also be left to society - already has a bias which cannot be denied. The PPP has been called an "empty formula" and a "general alibi concept."129 In my opinion, however, the PPP, although it may be a broad policy concept, can serve a useful function. As an instrument of environmental policy it may help to ensure that individuals adopt the responsibility for environmental impacts of their conduct which is necessitated by a concept of precautionary and integrated environmental management. A general and broad, but also flexible, policy concept for allocating responsibility, which is applied throughout environmental management, may ensure equal standards of environmental protection and liability throughout all areas of environmental management. It has to be acknowledged that the economic approach to environmental management has been much criticized, as noted above,- and that the PPP originates exactly in that area. However, as I have set out, the concept has evolved as a principle of environmental management over the years and has the potential to stand for an individual responsibility for the environment. Taking a practical approach towards environmental protection, there should be no reason not to make use of such a concept, especially in its extended modern version, if it promises to be a useful tool to promote environmental protection. In this 1 2 9 RSU, Umweltgutachten 1978, BT.-Drs.8/1938 at Tz.1703 (P.523). 63 regard, I would adopt Joan Robinson's statement, that "the market may be a poor master, but it can be a useful servant."130 A further discussion of the merits and' shortcomings of the concept as it is currently handled is included the case studies below. 1 3 0As quoted by Gowdy, "Progress and Environmental Sustainability," supra, note 31 at 53. 64 Chapter 3: The development of German and Canadian waste management legislation and policy Over the last two decades, German and Canadian waste management law has undergone substantial changes. Not only has the mass of legislation increased significantly, but the approach taken towards pollution has also evolved. Up to the late 1960s, the focus was on a simplistic prohibition of pollution. Since then, the approach has become more sophisticated. Legislation of the 1970s and early 1980s frequently aimed at the reactive control of pollution through permit systems. More recently, this type of scheme is being replaced by legislation based on the concepts of integrated and preventive pollution control. With the move towards a preventive approach of environmental protection, the perspective on the responsibility for waste and environmental management has changed as well. While formerly waste management was seen as a merely public task, there has been a move towards the notion that the individual person should take responsibility for the waste she produces. This chapter will give an overview on these developments in German and Canadian waste management law and policy. The transition from a reactive, "end of the pipe," to a proactive approach will be illustrated by delineating selected significant developments. The aim is not to give a comprehensive overview of Canadian and German waste law, but rather to point out the evolving policy mirrored in the law. I. Germany Since 1972, there have been three major pieces of legislation in Germany which exemplify the transition outlined above. The focus of the law has shifted from the prevention of health 65 risks and nuisance caused by unsafe dumping -the traditional "police approach"- to an emphasis on the ecological and economic aspects of waste production and treatment. A. Background131 Prior to 1972, waste management was considered a local task, with only a minimal involvement by the federal state. Local authorities came under growing pressure in fulfilling this task when, in the course of industrialization, population became denser, huge working class areas developed and waste production increased. By the beginning of this century, the simple municipal collection systems first implemented slowly began to be replaced by a systematic collection and disposal system. The two world wars, however, prevented the complete implementation of this system until the 1960's. The main purpose was to guarantee an orderly collection and transport of refuse from city areas. Emphasis was placed on the collection and removal of waste, rather than its treatment and disposal, so that 90% of the garbage ended up on about 50,000 municipal dumping sites by the end of the 1960's. This primitive approach to disposal lacked even a minimum of preventive measures. 133 131This introductory part is, where no further reference is given, based on Lottermoser, supra, note 4 at 1-23. 132Before 1972 the only federal German law concerned with the disposal of waste was the Federal law on Epidemics of 1961, which transferred the responsibility for hygienically safe waste management to the municipalities. 1 3 3 Sites were partly situated in densely populated areas or in water protection areas and only 130 of these sites could be regarded as safe^  generally, the requirements concerning construction and running of sites were minimal (see Begriindung zum Regierungsentwurf des Abfallgesetzes, BT.-Drs. VI/2401 at 7). 66 After the second world war, the era of the "economic miracle" brought substantial affluence to the German population, accompanied by an avalanche-like growth in the production of waste. Household waste doubled in volume between 1950 and 1960.134 -p/he cause was the evolution of the "consumer and throwaway society." Automization enabled the immense production of goods - that later turned to waste - and new shopping systems introduced prepackaged one-way convenience goods for self-service shoppers. In addition to the increasing use of short-lived and trendy products, the volume and design of packaging, which now also functioned as advertisement space, became more lavish. Packaging became the main contributor to waste production. Other factors also contributed to the waste problem. Central heating and the decline of household gardens displaced traditional waste disposal systems, such as composting and burning of waste. Also, ironically, improved pollution control measures, such as sewage and air filter systems, produced growing amounts of sewage sludge and sometimes highly toxic residues that required special waste treatment. 135 Alongside the increase in mass, the composition of waste changed. There were the rising amounts of wrecked cars, construction waste and bulk rubbish as well as hazardous industrial waste. 136 1 3 4In the last 40 years, the volume of household waste doubled, the total amount of waste increased by 500% (Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, (hereinafter BMU), Concept of the Federal Republic of Germany for avoiding and reducing the volume of waste-packagings, supra, note 9 at 3. 135See also Philip Kunig, Gerfried Schwermer & Ludger-Anselm Versteyl, Abfallgesetz, 2d. ed. (Munchen: Beck, 1992) at Einl. Rn. 1,2. 1 3 6 At the beginning of mass industrialization, not much attention was paid to environmental risks, so that the careless handling of hazardous materials caused whole industrial areas to become contaminated by substances resulting from production, especially in early industrialized regions like the Saarland and the Ruhrgebiet where coal mining and heavy industry settled. This, and the above-mentioned uncontrolled disposal of waste, were the 67 A person responsible for waste was faced with a confusing collection of individual rules found in various laws with differing legislative goals. With the exception of the Federal Law on Epidemics and a provision of the 1869 Act on Commerce (§ 16 I Gewerbeordnung),13'7 dealing with industrial waste, waste management was left to local authorities and frequently unregulated. At the beginning of the 1960s, the federal government began reviewing waste treatment and designed a draft federal Waste Disposal Act. Because of jurisdictional disputes between the federal government and the Lander, however, this Act could not be passed. 138 In 1971, the federal government in its Environmental Program set up a "trilogy of principles for environmental policy" which would gradually become the basis of all environmental legislation: the precautionary principle, the PPP and the cooperative principle. 139 The Environmental Program was to be the basis for a long-term environmental policy. For the first time, it granted environmental protection a status equal to that of other, more origin of a large number of contaminated sites, one of the most complex and difficult matters of today's environmental management. 137Gewerbeordnung (Act on commerce) of 1869; restated on 1.1.1978, BGB1.1 at 97 and on 1.1.1987, BGB1.1 at 425. 1 3 8As the Basic Law did not expressly assign the matter of waste law, the Lander argued that the federal state lacked the legislative power to enact such a law and thus should be restricted to the creation of a framework law to be specified by the Lander. The German Basic Law (the constitution), recognizes three types of jurisdiction. First, where jurisdiction is clearly assigned to one level of government, the respective level may regulate the whole matter in its law. Secondly, where, concurrent legislation is assigned to the Lander and the federal state, the former may regulate in those areas that have not been legislated by the federal state. Thirdly, the federal state can be assigned the power to enact "frame-work legislation," which means that it may legislate the outlines of a concept following to which the Lander will then legislate a matter. In that case, usually only the Lander law is enforceable law, with exemptions, such as some provisions of the Federal Water Supply Act. See Hans D. Jarass & Bodo Pieroth, Kommentar zum Grundgesetz, 2d. ed. (Munchen: Beck, 1992) at Art. 71 Rn.1-3; Art. 72Rn.l-8; Art. 75 Rn.1-3. 139Lottermoser, supra, note 4 at 37/38. 68 traditional, matters of public interest.140 The enactment of a federal waste law, as the first major environmental statute to be passed after the declaration of the Environmental Program, was finally made possible by an amendment of the Constitution, when the Ldnder-ruled Bundesrat (the second Chamber) agreed to grant the federal state concurrent jurisdiction over waste management. I 4* The Waste Disposal Act (AbfG), enacted on June 11,1972, is executed by the Lander.n j s complemented by the Lander waste management legislation, regulating areas left out by the federal law, such as the clean-up of contaminated sites, the organization of local waste management and also the important issue of financing waste management. Even though there have been some significant amendments of the 1972 Act throughout the years, particularly in 1986, the basic organizational structure has remained the same and underlies current legislation. Only the Closed Substance Cycle and Waste Management Act of July 8, 1994, which will not become law until 1996, contains a whole new legislative approach. B. Basic features of the Waste Disposal Act of 1972 The 1972 Act was a response to the uncontrolled proliferation of dumping grounds. Thus, it focused on the handling of waste in the narrow sense of waste disposal - comprising its collection, transport and dumping or incineration. According to § 2 AbfG, waste treatment 140Lottermoser, supra, note 4 at 33. 141Based on the new Art. 74 No. 24 GG, the Abfallbeseitigungsgesetz (AbfG) was passed on 7.6. 1972, BGB1.1, at 873. 142This is both according to the law itself and the general rule of Art. 83 GG, stating that federal law is executed by the Lander if not otherwise regulated. 69 was to follow the rule of disposing waste in a manner that posed no dangers to the general public, The Act consists of three parts, dealing with the organization of waste disposal, monitoring of disposal, and control of the amount of waste. 1. Definition of waste Waste is defined in § 1 I AbfG and includes all movables which the possessor wants to get rid of or which for reasons of the welfare of the general public need to be disposed of in an orderly manner. It thus contains a subjective and an objective component. Under the subjective, liberal notion of waste, the application of the Act depends solely on the will of the possessor, who can decide if his or her possessions will become waste or not, regardless of whether they still have a value and could be traded on the marketplace. The underlying rationale is that public authorities in charge of waste management shall be required to accept materials regardless of whether they may still be used or traded. It therefore has also been called the "notion of waste of the throw-away society. "144 1 4 3The "general public" is defined by an exemplifying, non-conclusive enumeration of legally protected rights and goods, such as human health, animal life, soil or water. 144See Kunig, Schwermer & Versteyl, supra, note 135 at-§ 1 Rn.12. On the other hand, the possessor has the right to make use of her goods, irrespective of whether they are considered by others as waste (Breuer 1, supra, note 55 at Rn. 242). The subjective definition of waste was interpreted restrictively concerning materials that the possessor wants to hand over for reuse or recycling. As long as a person wanted the materials to be traded at waste exchanges that exist for certain, particularly industrial wastes, or wanted to hand it over to a charitable organization or to a scrap or waste paper merchant for recovery, the material was not considered to be waste, but an "economic good". The same was true for waste materials handed over to municipal disposal institutions with the purpose of recycling. Hence, under the Act of 1972, there was a substantial uncertainty with respect to the definition of waste and thus the applicability of the Act (in particular to recyclables) as it mainly depended on the will of the (former) possessor of the waste (See Kunig, Schwermer & Versteyl, supra, note 135 at § 1 Rn.31-33). 70 The second, objective aspect of the definition of waste ensures that a person unwilling to dispose of her possibly hazardous possessions as waste in an orderly and safe manner may be required to do so by handing it over to waste management authorities. It is thus a corrective addition to the liberal approach taken in the subjective definition of waste. 145 2. Organization of waste management § 3 I AbfG requires that waste be handed over to local waste management authorities. This implies a prohibition of dumping refuse in the countryside or on private grounds, one of the main problems before the enactment of the AbfG. 1^ 6 Also according to § 3 AbfG, the municipalities or regional districts in charge of organizing waste disposal under Lander waste law are obliged to dispose of waste produced in their areas themselves or by contracting with third parties to carry out the disposal process. Commercial or industrial waste that, because of its amount or hazardousness, is difficult to handle in the disposal process may be excluded from the public system (§ 3 III, IV AbfG). Local authorities have used this provision extensively, so that most small business waste generators must make their own arrangements for safe waste disposal. 145Breuer 1, supra, note 55 at Rn. 242; Kloepfer 1, supra, note 13 at Rn.29. 146Kunig, Schwermer & Versteyl, supra, note 135 at § 1 Rn.12. 71 3. Monitoring of waste disposal To prevent the emergence of hazards, the operation of waste treatment facilities was subject to permission by public authorities. 147 The complexity of the approval process depended on the scale of the operation (see § 8 AbfG). § 9 AbfG provides authority to monitor the operation of a facility; it also requires already existing facilities to inform authorities of their operation. Operators have to notify authorities of the closure of their facility; authorities are then mandated to order restoration (not only clean-up) of the site (§10 AbfG). This was introduced to prevent the further proliferation of contaminated sites, but did not apply to facilities that had been closed before the enactment of the AbfG. 4. Control of the amount of waste The central provision concerned with controlling waste production was § 14 AbfG. It empowered the federal government to regulate by ordinance the use and sale of packaging and containers. Packaging "which would in the disposal process require unreasonably high efforts due to its amount or volume" could be prohibited from commercial trading or its sale could be restricted. The Act concluded with provisions on the approval process (§§ 20-30 AbfG) and on criminal offenses and administrative fines for breaches, §§ 16-19 (now 18,18a) AbfG. 1 4 7 § 4 AbfG states that garbage may only be treated and disposed of in waste disposal plants. Those include scrapping facilities for cars and waste paper (§ 5 AbfG) and must be approved in a complicated administrative process that ensures public participation (§ 7 AbfG). 72 5. Evaluation The focus of the Act is rather limited as its primary goals are to protect human health and to gain control over uncoordinated disposal. The latter goal has been achieved quite well, as the large number of dumping sites was reduced substantially. 148 However, while the reorganization of the waste management system into fewer, but well controlled facilities bears an element of resource preservation, as less land is wasted for disposal and the environmental impact of waste treatment facilities is centralized. However, the Act contains only few elements of resource preservation in the sense of the future oriented aspect of the precautionary principle. It is characterized by a rather "static-conservative" objective, as there is no precautionary notion of risk management beyond the level of mere prevention of dangers - which still resembles the function of classical police law. 149 While this traditional police law only applies if a danger is already present, however, the Waste Disposal Act is more flexible. It applies where waste causes mere nuisance ("impairment of general well-being", § 2 I No.l AbfG) and, more importantly, purports to prevent dangers before they arise through disposal obligations and permit requirements for the collection, transport and disposal of waste and provisions on monitoring. 1 4 8 To about 3000 by 1987, of which 339 were used for household waste. Disposal facilities, which increasingly have had to meet strict control and safety standards, and also incineration and composting facilities have been installed as central regional institutions (Lottermoser, supra, note 4 at 32). By 1993, there remained 263 (1975: 4,415) disposal sites for household waste, 49 incinerators and 43 special waste disposal and incineration facilities, Umweltbundesamt & Statistisches Bundesamt, Umweltdaten Deutschland 1995, (Berlin,1995)at39. 149Protection of human health, which was the main focus of the 1972 Act, is one of the classical goods protected by general Lander legislation on law and order (see Lottermoser, supra, note 4 at 46). 73 On its face, § 14 AbfG promises to provide some means to ensure a modern waste management system, aimed at waste prevention, in particular with regard to waste that poses significant problems. However, to make use of the instruments provided to restrict commercial distribution or production of environmentally harmful packaging products, a high threshold had to be met which rendered their use de facto impossible. 150 Even if the threshold could have been met, it would have been too late to create effective legal instruments to handle the problem; from a precautionary point of view, measures must be taken before an environmental problem has arisen. It is much harder to tackle a problem once it has appeared and the structures that promote it are in place. The limited regulatory means available under § 14 AbfG have never been used under the 1972 Act. Consistent with the market-economy approach and the notion of cooperative environmental management underlying § 14 AbfG, 151 the government instead relied on so-called industry "voluntary self-regulations".152 To rely on these before the enactment of regulatory law, which infringes freedom and economic rights of the producers of waste, is generally in accordance with the proportionality principle grounded in the constitutional rule of law. 153 According to this principle, however, to gain legally required preference over 150Ordinances on the basis of § 14 AbfG could only be enacted if products required unreasonably high efforts in the disposal process. This requirement was in fact impossible to prove, as, for example, one would have had to prove that throughout the country one-way beverage containers were used to such an extent that waste disposal facilities were overly strained and that predominantly such waste was sent for disposal (Kunig, Schwermer & Versteyl, supra, note 135 at § 14 Rn.3; see also Lottermoser, supra, note 4 at Fn.187). 1 5 1BT-Drs. 10/5656 at 78; Kloepfer 1, supra, note 13 at Rn.62; Bender & Sparwasser, supra, note 3 at Rn.915. 152Kunig, Schwermer & Versteyl, supra, note 135 at § 14 Rn.l, 6. 1 5 3The proportionality test implies that restrictive state measures must be suitable to reach the ends pursued by the state, and that they, after a balancing of the interests of the person affected and those of the state, prove to be the least impacting, but equally effective means 74 restrictive measures imposed on waste producers under § 14 AbfG, voluntary self-regulations, as the less infringing, but unenforceable, means, would have to be equally qualified to achieve the goals pursued by the government. That this was not the case was proved by the continuous increase in the use of throw-away bottles, despite of a 1977-self-regulation of the beverage industry to limit their use and not use high volume plastic bottles at a l l . 1 5 4 The systematic approach of the Act is characterized by the primary goal of the legislature in 1972 to gain control over and organize waste management in a centralized way. 155 Thus, waste management was organized as a public task of regional authorities (§ 3 II AbfG), while objectives of waste reduction and internalization of costs through the implementation of the PPP in its broader sense, not being reduced to a mere principle of accounting for costs, have evidently been neglected. The last possessor of an item before it became waste was determined as the polluter only in the sense of the purely economic aspect of the PPP, as this person was charged a fee to cover the disposal costs. These charges were determined by municipal acts on local taxes. to achieve the objective pursued by the state and do not overly impact other legal rights of the respective person (Jarass & Pieroth, supra, note 138 at Art. 20 Rn.56-61; BVerfGE 67,157 at 173-175). 1 5 4The portion of multi-way containers used for mineral water, beer and soft-drinks sank from 90% in 1970 to 70% in 1988, while at the same time the use of one-way containers increased by 50% (Lottermoser, supra, note 4 at Fn.195; federal government in BT-Drs. 11/756 at 14). To prevent the total deconstruction of the well-established refill system based on a deposit-refund incentive for consumers to take bottles back for refill, the government therefore finally decided to amend § 14 AbfG in 1986 and subsequently enacted the "Ordinance on Take back and Deposit Refund Systems for Plastic Beverage Containers" in 1988. 155Lottermoser, supra, note 4 at 32. 75 The reason for this public and institutionalized organization of waste disposal is evident. It was not feasible to leave those possessing waste in charge of its disposal. Waste management authorities are thus obligated to manage household and small business waste, but can delegate this function to producers of industrial waste where the amount or other characteristics make the waste hard to handle (§ 3 III AbfG). Such waste producers will generally have the knowledge and means for the safe disposal of their waste, so that they can be imposed responsibility and forced to pay for disposal either in own disposal facilities or, instead, in those of third parties who take care of their waste. Imposition of responsibility for waste disposal encourages waste avoidance as waste generators will be eager to avoid the substantial expenses for disposal. 1^ 6 However, in total, the PPP was only inadequately implemented in the 1972 Act. C. Regulation of industrial by-products waste under the Federal Act on Protection from Immissions Soon after enacting the Waste Management Act, in 1974, the government addressed the issue of managing industrial by-products as well in the.Federal Act on Protection from Immissions - Bundesimmissionsschutzgesetz (BImSchG). 157 This i a w a n ( j the ordinances based on it regulate the operation of industrial facilities, including the management of industrial waste, while the AbfG regulates household waste and the operation of waste 156Kunig, Schwermer & Versteyl, supra, note 135 at § 3 Rn.39. The PPP found further expression in the possibility to oblige the operator of a decommissioned disposal plant to recultivate the site. 157Federal Act on Protection from Immissions of 1974, BGB1.1 at 721. 76 disposal facilities.158 The BImSchG requires major industrial facilities to obtain a special permission outlined in §§ 4,8,14 BImSchG. All others need only to give notice of their operation and are subject to less strict requirements, §§22 BImSchG. In order to obtain the permission needed to operate an industrial facility (§ 4 BImSchG), the operator has to fulfill the basic obligations set down in § 5 BImSchG. They include the duty to reuse/ recycle residuals arising from the production process as much as it is technically possible and economically feasible. D. Program on Waste Management of 1975 The gaps in the 1972 waste management regime were soon recognized and addressed in the "Program on Waste Management" of 1975 (AWP). 1^ 9 The programmatic title indicates a "milestone" shift of the policy focus from efforts concentrating on safe disposal as they were found in the environmental program of 1971, to a focus on waste management. The government for the first time presented a comprehensive concept for the minimization, recycling and disposal of waste. 1^ 0 Waste management should involve not only the treatment of garbage itself, but apply to all processes that contribute directly or indirectly to the production, avoidance, recycling etc. of waste. Relying on the hierarchy of the three R's, the AWP thus focused on minimizing waste, by reducing industrial by-products and the 158See e.g. Hans D. Jarass, Bundesimmissionsschutzgesetz, 2d. ed. (Miinchen: Beck, 1993) at § 5 Rn.69. 159Abfallwirtschaftsprogram der Bundesregierung 1975, BT-Drs.7/4826 (hereinafter AWP 1975). 160It was induced by mounting prices of raw materials and the threat of a possible shortage in energy supply caused by the oil crisis and corresponded to the "Report on the Environment" 1976, where the federal government stressed the importance of "garbage as a source of resources and energy" (Lottermoser, supra, note 4 at 69). 77 environmental impacts of production processes, and producing more durable and reusable goods. Further issues to be addressed were the use of waste as source for raw material and energy and the composting of organic waste, 1*>1 The program emphasizes that the major role in realizing these policies should be played by all those participating in the economy - producers, consumers and distributors. The program was seen as an appeal to these groups to make use of a range of instruments in order to promote systematic and precautionary waste management. 162 The reuse and recycling of waste should be regulated by the market, whose experience with recycling of production waste had always been quite successful. 1^ 3 The role of the state should be restricted to waste disposal and its traditional tasks of prevention and protection of public goods. It could also step in with subsidies and other measures to improve and support the general set-up for the maximization of recycling efforts. 1^ 4 The AWP of 1975 indicated a trend at the political level from traditional end-of-the-pipe waste management towards a more comprehensive approach. However, as will be shown in the following part, the implementation of the program has been a slow and as yet unfinished process. E. Implementation of the Program of Waste Management until 1986 The Lander were first to base their statutes on principles of modern waste management. Nordrhein-Westfalen, for instance, stipulated a priority of the reduction and reuse/recycling 161Lottermoser, supra, note 4 at 70/71; AWP 1975, supra, note 159 at 3. 162Lottermoser, ibid, at 72; AWP 1975, ibid, at 4. 1 6 3For example, there was the well-established waste exchange of the Chamber of Industry and Commerce, Kunig, Schwermer & Versteyl, supra, note 135 at § 1 Rn. 15,35. 164See Lottermoser, supra, note 4 at 74 and AWP 1975, supra, note 159 at 4,9 for detail. 78 of waste in local waste management under the premise that it was technically feasible and economically reasonable. And Hessen's Waste Management Act obliged local authorities to reduce and recycle while providing for charges as financial incentives to promote recycling (§ 2 IX AbfGHess). At a federal level, there have been several amendments to the Waste Disposal Act prior to the revision of 1986.165 The amendment of 1976 for the first time set down the three R's hierarchy in federal waste management law. it also introduced a mandatory self-monitoring system for waste disposal and production facilities. § 11a AbfG, whose protective purpose is the preservation of the environment per se (specified in the obligation to strictly follow the three R's hierarchy) 167 shifts the responsibility for the production and handling of waste to the operator of a facility. It requires that an employee be appointed to act as supervisor at each facility, To monitor compliance with the Act and promote waste minimization. 168 The introduction of the supervisor shows a new emphasis on private responsibility for the environment and a move towards implementing the PPP and the cooperative principle. 169 1 6 5The focus of the 1982 amendment was the regulation of sewage sludge (see § 15 AbfG), specified in the Klarschlammverordnung (Ordinance on Sewage Sludge) of 25.6.1982, BGB1.1 at 534. It restricts the use of sewage sludge in agricultural production, and aims to protect the soil and the consumers of agricultural products from overmanuring resulting in contamination, particularly by heavy metals and nitrates (Kunig, Schwermer & Versteyl, supra, note 135 at § 15 Rn.l). In 1986, the rules on the permission process for waste disposal facilities were replaced by the general law on administrative planning process (Planfeststellungsverfahren) in the Lander Administrative Procedure Acts (Erstes Gesetz zur Bereinigung des Verwaltungsverfahrensrechts (First Law for the Adjustment of the Law on Administrative Procedures) of February 18, 1986, BGB1.1 at 265). 166Kunig, Schwermer & Versteyl, supra, note 135 atEinleitungRn.10. 167Kunig, Schwermer & Versteyl, supra, note 135 at § 11aRn.l. 1 6 8The supervisor (Betriebsbeauftragter), who is solely responsible to the facility, not to the state, would report compliance problems directly to the facility operator through year end reports. 169Kloepfer 1, supra, note 13 at Rn.56; Lottermoser, supra, note 4 at 81. 79 The 1985 amendment intended to regulate "hazardous waste tourism."1 / u §§ 2 I S.l, 13 AbfG now require disposal in the country of origin, a provision which has often been challenged with regard to its consistency with the principles of freedom of movements of goods and services and the prohibition of discriminating barriers to trade set down in Art. 7a 11,30,59 E.U. Treaty.1^1 The likely increase of disposal costs due to this provision was accepted with a view to the urgent need for protection of the environment from unsafe transport and disposal of waste. ^2 The most significant change in law until 1986 was the introduction of § 5 I No.3 into the BImSchG. The duty to reuse/recycle industrial by-products if this is technically possible and economically feasible, set down in § 5 BImSchG, was now complemented by the additional obligation to avoid the production of waste in the first place, followed by the duty to recycle, and "if this could not be expected", to safely dispose of the residuals. Thus, prevention and recycling of waste were placed on equal footing, and their priority over disposal was no longer dependent on the "economic reasonableness" of waste minimization efforts. 173 xhe obligation to avoid or recycle waste now only depended on the proportionality 1 7 0The so-called "Seveso-or Schdnberg Novelle," (of 31.1.1985, BGB1. I, at 204) was a reaction to the "wild goose chase of the 41 Seveso barrels" containing highly toxic dioxins through Europe, as well as to the increasing export of west-German hazardous waste to the German Democratic Republic. Hazardous waste was mainly sent against hard currency to the waste disposal facility in Schonberg, which today is one of the biggest worries of those concerned with contaminated sites. For reference to the section see: Schwermer, Kunig & Versteyl, supra, note 135 atEinleitungRn.12, Kloepfer 1, supra, note 13 atRn.14. 1 7 1The principle of domestic disposal of waste, in combination with the subjective and objective waste definition, posed difficulties, as under E.U.-law, waste for recycling was regarded a "good" and waste treatment a "service" so that the German restriction of waste shipments collided with the European rules of free movement of goods and services (see for that Kunig, Schwermer & Versteyl, supra, note 135 at § 13c Rn.6ff, lOff). 172Schwermer, Kunig & Versteyl, supra, note 135 at Einleitung Rn.13. 173Gesetz zur Anderung des BImSchG vom 4.10.1985, BGB1.1 at 1950. 80 considerations underlying each regulatory act of the state. The prior position of economic considerations in the decision making on waste handling, where all relevant aspects have to be taken into account and balanced, was eliminated. And in the proportionality test, environmental protection (waste management in this case), as the objective of the law according to § 1 BImSchG, was upgraded in its importance as factor to be balanced against economic factors. While on the whole, the provisions regulating waste management increasingly contained elements of the philosophy of the three R's and private environmental responsibility, all this can only be said to be true for the industrial sector. The private waste producer, the consumer, was only indirectly affected; there was no reference to any obligation with respect to waste minimization at the consumer level. The legislation generally lacked a comprehensive cradle-to-grave approach towards waste management, continuing to take an "end of the pipe" approach, and lacking means to influence production processes through legal or economic incentives. F. Act on the Avoidance and Disposal of Waste of 1986 (AbfG) 1 7 4 A move from waste management policy focusing on waste disposal to waste avoidance and recycling is expressed in the title of the Waste Management Act of 1986, where "Disposal" (Beseitigung) was replaced by "Avoidance" and "Entsorgung"- a term that can only be translated by "Disposal," but which emphasizes the safe management aspect. According to the legal definition in § 1 II AbfG, Entsorgung means the recovering of material or energy 174Gesetz iiber die Vermeidung und Entsorgung von Abfallen (Abfallgesetz) vom 27.8.1986, BGB1.1 at 1410. 81 from waste as well as its disposal and related measures of collection, transport and storage. The Act, while maintaining the old statute's structure, presented an entirely new law, replacing the old Waste Disposal Act by November 1, 1986. 1. The definition of waste In § 1 I AbfG, the definition of waste was refined. § 1 I S.2 AbfG defines materials handed over to waste management authorities for energy or material recovery as waste under the Act. The change is significant because measures taken to manage this waste, from collection to recycling and marketing recyclables or secondary products, are now considered to be waste management and can thus be taken into account in the calculation of the waste charges paid by users of the public waste management system. 175 This has provided the possibility of shifting the formerly public costs of waste management in a broad sense to the consumer who disposes of the waste, an internalization of costs in the original sense of the ppp 176 175Kunig, Schwermer & Versteyl, supra, note 135 at § 1 Rn.32 with further reference; BGH UPR (1990) at 297, 298. 1 7 6 To guarantee the further existence of the partly well developed junk dealer system (old clothes, scrap metal, glass and paper), § 1 III No.6,7 AbfG excluded materials from the waste definition which were handed over to such dealers, provided, the safe recycling was proved and "no public interests would speak against the exemption." Such public interests could be that power stations run on the basis of waste incineration are in need for supply, Lottermoser, supra, note 4 at 89. 82 2. The precautionary principle and the hierarchy of the three R's The most significant change was the new requirement (legal directive/"Gebot") that waste avoidance and recycling/recovery take precedence over waste disposal, § la, 3 II AbfG. Through this priority requirement, a precautionary approach is introduced into the Act. 1^ 7 With respect to the order of priority between the objectives of prevention and recycling/recovery, the Act adopts the equal ranking found in § 5 I No.3 BImSchG. 1^ 8 Both objectives of waste avoidance and reuse/recycling have a programmatic function in the interpretation of the Act and serve as guidelines for the federal government in making ordinances based on § 14 AbfG to implement and specify the principles. While the goal of waste avoidance is found only in this declaratory form -the Act includes no direct obligation to realize it-1 reuse and recycling/recovery are given express preference over waste disposal. Regional waste management authorities a n ( j a i s o industrial or commercial 1T7Bender & Sparwasser, supra, note 3 at Rn.883. 178However, it could be concluded from the systematic setout of the Act, where waste avoidance is mentioned first (§ la I AbfG), followed by recycling/recovery in § la II AbfG, as well as from the parliamentary debates, that in fact the three R hierarchy should be made the basis of the Act and the formulation was mainly used for reasons of consistence with the BImSchG (Lottermoser, supra, note 4 at 90; Bender & Sparwasser, supra, note 3 at Rn.883,884; but see Kloepfer 1, supra, note 13 at Rn.57) 1 7 9But see for industrial facilities the waste avoidance obligation as described above under § 5 I No.3 BImSchG. As long as there are no ordinances based on § la, § 14 AbfG with respect to waste avoidance obligations, facilities operated under the BImSchG may therefore be under stricter obligations regarding the three R hierarchy than those that are subject to permission under the AbfG. The obligation under § 5 I No.3 BImSchG can be enforced by the permission authorities who may according to § 17 BImSchG restrict a granted approval or impose additional obligations to ensure compliance with the conditions for operation of a facility prescribed by § 5 BImSchG. 180Their management can be monitored and enforced with respect to the implementation of the hierarchy by the way of "legal supervision" ("Rechtsaufsicht") measures imposed by superior authorities (Hartmut Maurer, Allgemeines Verwaltungsrecht, 6. ed. (Miinchen: Beck, 1988) at §23 Rn.l8ff.) 83 waste producers who have been excluded from the public waste management system on the grounds of § 3 III AbfG are obliged to follow this hierarchy (§ la II AbfG). The objective of the federal government when passing the new Act was to reach a total recycling rate of about 50% of household waste. 1^ 1 Contrary to the original government proposal, however, this goal is not to be achieved on the basis of an absolute legal priority of recycling /reuse and recovery over waste disposal. a) The priority of recycling and recovery according to § 3 II S.3 AbfG Much controversy during debates on the Act was generated by § 3 II S.3 AbfG. It states that waste should be recycled/recovered whenever (i.) it is technically feasible (even if preparatory treatment of recyclables is necessary) (ii.) the additional expenses in relation to waste disposal are reasonable1*^ (iii.) if a functioning market for the secondary material 181Bender & Sparwasser, supra, note 3 at Rn.886. 182This presents a relatively high threshold for the proof of substantial reasons for the disposal of waste instead of recovery, as matters of public welfare such as the protection of the environment need to be assessed in the determination of "reasonableness" of the excessive costs (Kloepfer 1, supra, note 13 at § 12 Rn.72; Kunig, Schwermer & Versteyl, supra, note 135 at § 3 Rn.35). It is not enough if recycling costs are economically unreasonable, potential profits gained from the use or sale of the secondary products must also be taken into account. A decision must be based on a medium or long-term perspective, thus including issues such as the availability of landfill space or long-term risks, as far as these present cost factors. The focus of the essentially materialistic cost-benefit-analysis has been broadened by § 4.3.4 Technical Instructions on Waste, stating that environmental benefits achieved through recovery, may they be financially measurable or not, are a relevant determinant for the "reasonableness" of excessive costs as well (Gesamtfassung der zweiten Allgemeinen Verwaltungsvorschrift zum Abfallgesetz (Technische Anleitung AbfahV TA Abfall), of 12.3.1991 BMB1. at 139). The terminology of "reasonable costs" was chosen to be consistent with the formulation in § 5 I No. 3 BImSchG. It expresses that waste management, as opposed to mere disposal, is primarily a cost factor to local authorities as long as there is a lack of markets for recycled materials. Cost result also from sorting, collection and storage of the recyclables. (Kunig, Schwermer & Versteyl, supra, note 135 at § 3 Rn.35). 84 produced in the recycling process exists or can be created. Recycling is given mandatory priority over disposal only if all three conditions apply. The legislators wanted to avoid a principle of waste recycling "come what may. "183 The third requirement that the recycled materials and energy must be marketable merits further examination. The rationale of this requirement is that it would neither make economic sense to manufacture recycled products for which there is no need or use, nor would it further the environmental awareness among the population if recycling would prove to be a senseless end in itself. 184 Therefore, there must be at least an indication of a long-term market demand. The Act supports the creation of markets by local authorities who, for this purpose, should contract with third private parties, § 3 II S.3 AbfG. 185 Local authorities are urged to delegate waste management as much as possible to the private sector, as, ultimately, a "market-based waste economy," as uninfluenced as possible by state intervention, should be established. 186 This exemplifies the basic theme of the separation between private economy and public service in German waste management. Ideally, the function of public authorities should only be to guide and control waste management, ensuring a coordinated and reasonable waste management industry throughout the country. I 8 7 183Lottermoser, supra, note 4 at 92. Underlying § 3 II S.3 AbfG is therefore the concept of a cost-benefit-analysis. This prevents recycling from becoming an insupportable financial burden on those responsible for waste (ibid, at 93; BT-Drs. 8/3887 at 7). 184Kloepfer 1, supra, note 13 at 701; Kunig, Schwermer & Versteyl, supra, note 135 at § 3 Rn.35; BT-Drs. 8/3887 at 13. 1 8 5E.g., there could be a cooperation with brokers who arrange for the sale of recycled materials, Lottermoser, supra, note 4 at 96. 186Kunig, Schwermer & Versteyl, supra, note 135 at § 3 Rn.35; ibid, at 94-96. 187See Lottermoser, ibid. 4 at 72. 85 b) Ranking of material and energy recovery under § 3 II AbfG During parliamentary debates it was disputed whether the law should give material recycling preference over energy recovery or whether both should be given equal importance. Although this discussion was finally resolved by parliament in favour of the latter position, debate on the interpretation of § 3 II S.3 AbfG has never stopped. 189 xhe new Closed Cycle Economy and Waste Management Act of 1994 has settled the debate by principally putting both options on an equal footing, § 4 I No.2 KrWG. The decision on the respective method of recovery is to be made on a case to case basis, guided by the objectives of reaching a high level of return, using the method with the least environmental impact, and producing materials or energy that are marketable (§§ 5 II-IV, 6 I KrWG). 3. Extension of the ordinance power to implement the three R's under § 14 AbfG The principles of waste avoidance, reuse and recycling under §§ la and 3 AbfG will be implemented mainly in ordinances enacted on the basis of § 14 AbfG. Corresponding to the 1 8 8The opposition argued that material recovery would preserve resources, while incineration lead to the destruction of raw materials, and that the calorific value of waste was low compared to other energy sources. Incineration would cause emissions as well as toxic residuals that needed to be discarded. Those in favour of an equal ranking of both recycling methods argued that markets for recycled materials were limited and that incineration and composting of the 70% of waste for which material recycling was thus no option should be possible. Incineration would prolong the life span of landfills by 4-5 times and waste air cleaning techniques were already much better developed for waste incinerators than for traditional power stations run on fossil fuels (see BT-Drs. 10/3629 and 810/5656 at 61). 1 8 9 § 3 II S.3 AbfG gives no clear answer to this question,- it just states that "recycling (which can be interpreted as material or energy recovery in German) of waste has priority over disposal measures if... there is a market for the recovered material or energy." 86 change in policy manifested in § 3, § 14 AbfG was significantly extended in 1986, too. As the former version of § 14 AbfG 1972 had proved to be largely ineffective, serving merely as a "toothless threat," § 14 was restructured. § 141 AbfG aims to reduce the amount of waste (weight and volume), while § 14 II AbfG seeks to minimize the toxicity of waste. 190 § 14 AbfG mainly targets the industrial and commercial sector and contains interlocking instruments to implement the three R's. The intertwined system of measures reflects the fact that an effective waste management with the ultimate goal of waste reduction cannot be implemented without a sweeping change in production techniques and processes and the products as well. 191 The amendment thus introduced instruments of modern waste management to influence the waste stream. § 14 I AbfG, concerned with hazards caused by waste, basically provides four instruments to be regulated in ordinances after consultations with affected circles (industry, environmental organizations and waste management authorities). 192" These include the mandatory labeling of products containing hazardous materials, 193 the possibility of excluding hazardous materials from the general waste streaml94 and the power to mandate 190Quantitative and qualitative waste reduction. Particularly the management of hazardous waste materials, like used batteries, waste paint, cleaning agents and solvents or mercury containing thermometers, should be advanced. Kunig, Schwermer & Versteyl, supra, note 135 at § 14 Rn.4; Entwurf der Bundesregierung, BT-Drs. 10/2885 at 12. 191Kunig, Schwermer & Versteyl, ibid, at § 14 Rn.7. 1 9 2BT-Drs. 10/5656 at 77. 193This should enable informed consumer choices in the purchase, use and disposal of products and facilitate the sorting of problematic waste or recyclables (Kunig, Schwermer & Versteyl, supra, note 135 at § 14 Rn.14). 194Increasing costs caused by the separate treatment should be compensated by lower costs in the management of the less contaminated remaining waste. The sorting of waste before entering the waste stream should also facilitate its recycling (Kunig, Schwermer & Versteyl, supra, note 135 at § 14 Rn.15). 87 the installation of take back or deposit refund systems by distributors of products. The law makes a subtle differentiation between the original proposal of a direct obligation to take products back, and the current version, demanding that distributors offer the possibility of giving a product back. Distributors may thus comply with their obligation directly or through the installation of separate systems organized by industry which guarantee compliance with the AbfG. 195 Finally, the use of certain products can be restricted to ensure safe waste management, and their sale may be prohibited if there is no other reasonable way to prevent the release of noxious substances in the waste management process. This allows the government to influence the handling of a substance "from cradle to grave" and to account for environmental concerns that traditionally have not been the focus of waste management. 196 § 14 I AbfG is interlocked with § 14 II AbfG, concerned with the amount of waste produced. While ordinances enacted under § 14 II AbfG may include measures similar to 195This formulation was favoured because of the "Danish Bottles Case," pending before the European Court of Justice (ECJ) since 1981. A Danish Ordinance mandating the take back of beverage containers was challenged on the grounds of being an illegal barrier to trade under the E.U. Treaty. With a view to this unresolved case, German legislators decided to leave room for maneuver to distributors with respect to the organization of take back systems. Concerns regarding the consistency of § 14 AbfG and ordinances based on it with European law have later been refuted by the decision of the ECJ. The court ruled, on the basis of a former decision on waste oil, that "the protection of the environment as a substantial objective of the European Communities can justify certain restrictions on the free movement of goods" and that "deposit-refund systems are an indispensable element of a system that seeks to ensure recycling and are thus necessary." (Decision of 20.9.1988, Commission v. Denmark, case 302/86 (1988); see also decision on waste oil of 7.2.1985-240/83) 196Formerly, restrictions on the use or sale of products could only be based on §§ 14, 17 Chemikaliengesetz, e.g. the Ordinances on the prohibition of PCB, PCT and VC of 18.7.1989, BGB1. I at 1482 (Kunig, Schwermer & Versteyl, supra, note 135 at § 14 Rn.21a,12). 88 those under § 14 I AbfG, the section also requires the government to publish target rates for waste avoidance, reduction and reuse/recycling of certain wastes in the Federal Gazette. This governmental appeal is the mildest means available under § 14 II AbfG, with the lowest impact on the free market and rights of freedom and property of the addressees. It is used to avoid coercive measures^ a n c j j s a n expression of the cooperative principle. 1^ 8 x n e potentially affected circles must be heard before the creation of an ordinance and the publication of targets, in order to utilize their experience and knowledge. This ensures that measures grounded on § 14 II AbfG respect the principles of a free market economy. 199 The interplay of the various instruments is well illustrated by the implementation of § 14 AbfG in the field of packaging waste. After self-regulations of industry had failed and the use of one-way beverage containers made from plastics had even increased, by about 50% since 1 9 7As a "formalized threat", Bender & Sparwasser, supra, note 3 at Rn.917. 198It is disputed whether the government must make use of this mildest means before it takes the stronger measure of enacting an ordinance to achieve the reduction of certain waste. In the light of the cooperative as well as the proportionality principle the government should have to attempt to achieve its objectives through appeals before taking regulatory measures. Some even argue that priority should always be given to voluntary private efforts such as self-obligations of industry. However, where unenforceable government appeals would not be sufficient to reach the necessary degree of waste minimization (e.g. if industry refuses to comply), appeals are not the least impacting available means in the sense of the proportionality principle because they will not be as effective as the stronger regulatory means available under § 14 II S.3 AbfG. If objectives are set and their achievement is endangered by industry's failure to make the necessary compliance efforts, the persons concerned need no longer be protected in their trust to be given the freedom to chose the most convenient way for the required realization of social goals. In this case, regulatory measures should be available to the government, (see Kunig, Schwermer & Versteyl, supra, note 135 at § 14 Rn.22; Bender & Sparwasser, supra, note 3 at Rn.917; Kloepfer 1, supra, note 13 at Rn.62 and BT-Drs. 10/5656 at 77ff.). 199That § 14 I AbfG does not rely on the means of targets in form of government appeals is due to its purpose to prevent dangers caused by noxious substances contained in waste materials. This purpose is incompatible with the concept of § 14 II AbfG to take regulatory -mandatory - measures only if government appeals have already failed (Kloepfer 1, ibid, at Rn.64; Bender & Sparwasser, ibid, at Rn.917). 89 1977, the federal government enacted the "PET-Ordinance" based on § 14 II S.3 No.2, 3 AbfG.^ OO It required establishment of a take back and deposit refund system for plastic bottles and set targets for the avoidance, reduction, reuse and recycling of beverage containers. 201 As industry was rather reluctant to comply with the ordinance, the federal government finally enacted the Packaging Ordinance on the basis of § 14 I S. 1 No. 1, 4, § 14 II S.3 No. 1-3 AbfG. It requires distributors and manufacturers to reduce packaging to the amount necessary for sales purposes and to take back and reuse or recycle used packaging material. The Ordinance operates on the basis of minimum target rates to be met within a certain time frame.202 4. Evaluation of the policy underlying and implemented in the Act of 1986 The 1986 Act represents the step from a traditional notion of waste disposal aimed at preventing dangers to a more farsighted, comprehensive and integrated approach. The three R's hierarchy has been made the foundation of German waste management. A problematic feature of the Act, however, is that the principles set down in § la AbfG need to be implemented in ordinances under § 14 AbfG to develop legal force. Interpreted in the light of § la AbfG, the instruments contained in § 14 AbfG would need a primary focus on the goal of waste avoidance. The interplay of the principles of waste management and the 200Verordnung iiber die Rucknahme und Pfanderhebung von Getrankeverpackungen aus Kunststoffen of 20.12.1988, BGB1.1 at 2455 (PET-VO, so-called "Coca-Cola VO" as it was enacted pursuant to Coca-Cola's announcement to use PET bottles). See footnote 154 and accompanying text. 201Federal Gazette at 2237, 2733; see also federal government in BT-Drs. 11/5284 at 25f; BT-Drs. 11/6170. 2 0 2For the Packaging Ordinance see the case study in Chapter 5. 90 instruments in § 14 AbfG should and could enable the government to interpret § 14 in a broad way and to implement more measures aimed at waste prevention. §§ la, 14 AbfG are significant as they allow the government to address producers and distributors of future waste products and to shift the responsibility for waste to dealers and industry. With these instruments, an integrated and a precautionary approach in the sense of both, the prevention of hazards and the management of resources for the future, has found its way into waste management legislation.203 Current government action leads in the right direction towards a "cradle to grave" waste management. However, cases where § 14 AbfG has been implemented indicate a strong focus on recycling and, where such systems have traditionally been used, on reuse efforts. That the Act does not grant waste avoidance absolute priority is a significant failing. While this would be difficult to enforce, as a signal to society it would not be without effect. A further weak point of § 14 AbfG is that it does not provide sufficient means to bring about a reduction of hazardous waste which currently is produced in almost unmanageable amounts. 204 203Waste has also been discovered as a resource. This focus on the economic advantages of waste management ("pollution prevention pays") reflects the preferential reliance of waste management policy on market forces as regulators. 2 0 4In many Ldndern the capacities for hazardous waste management are (almost) exhausted, leading to shipments of waste. (Bender & Sparwasser, supra, note 3 at Rn.951, 866ff). § 14 II No.5 AbfG could be complemented by powers to prohibit the production and marketing of such products, which presently can only be based on laws lacking a "waste focus," such as § 17 ChemG. § 14 II No.5 AbfG could be a used to tackle this problem by forcing industry to substitute hazardous substances in products by less problematic ones (Kunig, Schwermer & Versteyl, supra, note 135 at § 14 Rn.31; Bender & Sparwasser, supra, note 3 at Rn.918). 91 The instruments made available to the government have been criticized as being "dirigiste."205 However, while their use may have some economically discriminatory side-effects, the rising production of, in many cases superfluous or noxious, waste, with a reluctance of industry to make voluntary waste minimization efforts, calls for effective and, in particular, enforceable government measures. The system established under § 14 AbfG is still much characterized by the notion of cooperative environmental protection. It is, in a market economy, reasonable to rely on "soft-law," such as recycling rates objectives, as a first step. These may, in interplay with the announcement of coercive measures in case of their ineffectiveness, have the power to cause "voluntary" action by industry.206 g u t j n contrast to the 1972 Act, the law provides strong regulatory instruments to respond to a failure of a cooperative approach. The effectiveness of this system, however, depends on the government's willingness to take the necessary regulatory steps in case of industrial non-compliance with set targets, and to implement and enforce these persistently.207 205Bender/Sparwasser, supra, note 3 at Rn. 919. 2 0 6 As the federal government stated in its report on the implementation of the AbfG (BT-Drs. 11/756 at 12): "Effective successes in the avoidance and recycling of waste will hardly be achieved against the resistance of the circles concerned...Instead of state directive and prohibitive regulations, the cooperative principle should therefore be implemented as much as possible." 207While there have been examples of strict implementation of § 14 AbfG, such as the "Ordinance on Solvents" or the "Ordinance on Waste Oil," (Verordnung iiber die Entsorgung gebrauchter halogenierter Losemittel (HKWAbfV) of 23.10.1989, BGB1. I at 1918), One can still note a substantial reluctance of government to make full use of the range of instruments available under § 14 AbfG. For instance, even though a major German bulk food chain, which consistently relies on self-service and one-way container systems, announced its refusal to make voluntary changes to its marketing system, the government refrained from enacting an ordinance that would make the alternative offer of beverages in multi-way systems mandatory ("lex-Aldi" (Kloepfer 1, supra, note 13 at Fn.96), BT-Drs. 10/2885 at 50; BT-Drs. 10/5656 at 78). 92 Further on the way towards a consistent implementation of the three R's hierarchy is the waste management law regulating industrial production under § 5 I No.3 BImSchG. Here, a clearer preference of waste avoidance is stated and high recycling rates are achieved. 208 Limits to this are set by saturated markets, which illustrates the need to give waste avoidance the preference and to strengthen efforts to improve the market situation for recycled products. 209 The mandatory application of the three R's hierarchy by regional waste management authorities, those who are responsible for the treatment of their waste themselves, and those targeted by § 14 AbfG-ordinances, manifests a shift of responsibility for waste from the state towards the waste-generating individual. The insight that traditional waste management, relying on end-of-pipe management, imposed and directed by the state, does not promote the development and use of innovative production manners and products with less environmental impact has gained acceptance. The picture of "the polluter" has changed; there is now a broader focus on producers and distributors of products and, indirectly, on consumers as well.210 Waste is recognised as a problem whose solution needs to involve all contributors to waste production. Thus, the PPP has found stronger expression in the legislation, systematically implemented in combination with the cooperative principle. 2 0 8But see also text accompanying footnotes 245, 246, infra, for the three R's hierarchy under the BImSchG. Kunig, Schwermer & Versteyl, supra, note 135 at Einleitung Rn.24: Recycling rates of almost 100% for metallic residues, of 80% for paper and corrugated cardboard and of over 50% for metallurgical slag are the average. 2 0 9For example by prescribing recycled material content for certain products for which there is no definite legal basis in the current legislation. 210Consumers are necessary participants in the preparatory process of recycling, like the sorting of materials. Their environmental awareness and preparedness to minimize waste through their consumption behaviour shall be promoted through informative measures, such as labeling of products. 93 The Act of 1986 is presently valid German law, but a new comprehensive waste management law, the "Kreislaufwirtschafts- und Abfallgesetz" was passed on July 8, 1994 and will come fully into force by the end of a two year period after its publication.^!! In contrast to the Act of 1986, which showed a substantial shift in policy, but maintained the systematic approach set down in the Waste Disposal Act of 1972, the Kreislaufwirtschaftsgesetz is entirely new legislation. Before turning to this Act, I will first refer to some changes in law between 1986 and 1994, a period which was largely influenced by the German reunification, impacting environmental law and policy as well. G. The development of waste and related environmental law from 1986 to 1994 Legislation of this period showed a move towards integrated waste and environmental management and a broadened perspective on environmental impacts, away from the anthropocentrism characterizing traditional environmental law. A significant example of this trend is the 1990 Federal Act on Environmental Impact Assessment.212 The approval process for certain private and public projects, including waste disposal facilities, now must involve an environmental impact assessment (EIA). Direct and indirect environmental impacts of a project, including ecological interactions, shall be determined and evaluated in a comprehensive fashion and be taken into account in the decision on the approval of the operation. 2 1 1BT-Drs. 12/8084, BR-Drs. 654/94. 212Gesetz uber die Umweltvertraglichkeitsprufung, BGB1. I, 205 enacted on 1.8.1990 to implement the European Directive on Environmental Impact Assessment for Certain Public and Private Projects (85/337/EEC of 27.6.1985). 94 Private responsibility for environmental degradation has been enhanced by the federal Environmental Liability Act (UmwHG)213 of 1990. The Act establishes private liability of owners of a plant for damages caused in the course of industrial operations that have an increased potential for causing harm. The Act improves the position of those suffering personally and directly from environmentally harmful operations,- through a presumption of cause,^14 rights to information against the polluter and the public authorities involved, and the liability of operators despite their compliance with law. The potential threat of liability should provide significant impetus for a more responsible environmental management. Thus, the Act has a preventive as well as a remedial function.215 A concept of modern environmental policy was set down in the "Treaty between the States" (Staatsvertrag) of 18.5.1990 and the "Unification Treaty" (Einigungsvertrag) of 213Gesetz fiber die Umwelthaftung of 10.12.1990, BGB1.1 at 2634. 214Breuer 1, supra, note 55 at Rn. 101 with further reference. Proof of causation and fault on behalf of the owner is made substantially easier for the victims in order to compensate for the weaker position of victims and their difficulties in bringing sufficient proof for the link between injury and harmful act. The statute contains a refined array of rebuttable presumptions and counter-presumptions regarding causation. If a plaintiff can show that a firm is "inherently suited" to cause the occurred injury, and the firm cannot prove that it operated in compliance with the law, or that there is another firm "suited to cause the specific harm" as potential injurer, the burden to prove causation shifts from the plaintiff to the defendant. The Act applies to all listed operations, including disposal facilities and incinerators. It does not regulate remediation of such environmental damage that is not a damage caused to another person. Neither does it provide a legal basis for liability for so-called "summation damage" caused through the accumulation and transport of pollutants, such as acid rain damage. The Act complements the negligence-based liability regime under § 823 Civil Code and the strict liability of owners of land that is a source of damage to a neighbour's land under § 906 Civil Code, as well as § 22 Federal Water Supply Act and § 14 BImSchG, which include strict liability rules for the storage or handling of water pollutants and harmful effects of industrial facilities. 2 1 5 A similar proposal for a Directive on Civil Liability for Damage caused by Waste by the European Communities, will be considered in the case studies. Under this directive, producers of waste would be held absolutely liable for property damage, personal injury and injury to the environment caused by waste. 95 31.8.1990. Both included transition rules for the application of West German environmental law in East Germany.216 Art 16 Staatsvertrag and Art. 34 Einigungsvertrag established a "German Environmental Union," where the task of future legislation should be "to protect the natural basis of human life, following the precautionary, the polluter pays and the cooperative principles, and to promote the homogeneity of the ecological conditions of life on a high, at least on the standard reached in the Federal Republic of Germany" (FRG), Art. 34 Einigungsvertrag.217 These programmatic statements for the first time have fixed these principles as general guidelines for future legislation and political action.218 They manifest that environmental protection based on the listed principles has gained a firm and substantial position as an element of public policy. For waste management, the reunification had a "boomerang effect," when West Germans were faced with their waste that had been exported to and disposed of in East German landfills, and now needed to be cleaned up.219 The issue of contaminated sites in the new Lander is addressed by Art. 1 § 4 III of the Framework Law on the Environment (URG), which was enacted by the East German government to specify transition steps.220 Public 216Staatsvertrag, BGB1. II at 518; Einigungsvertrag, BGB1. II at 885. 2 1 7The translation of the treaty provision is my own. 218They do not have the status of constitutional law, but nevertheless will have legal relevance and influence program- and planning legislation in which the legislator, according to the rule of law, will have to specify this self-commitment (Breuer 1, supra, note 55 at Rn.54). 2 1 9In 1992 the German government planned to spend 18 billion D M for cleaning up east German contaminated industrial sites until the year 2000 systems ((1992) 2:22 Environmental Policy and Law at 108). 220Umweltrahmengesetz of 29.6.1990, GB1. I Nr.42 at 649. With the Unification Treaty, west German law has come into force in the east German Lander, where former East German law, such as the Umweltrahmengesetz, is still valid Lander law as long as it does not violate superior federal or European law. According to Art. 9 Einigungsvertrag Art. 1 § 4 III URG in the amended version of the Act of 22.3.1991, BGB1.1 at 766 remains in force. 96 authorities may release owners, possessors or buyers of facilities which serve industrial or commercial purposes from liability for damage caused by the operation of the facility or the use of the site before July 1, 1990.221 wbii e this exemption contravenes the essentials of the PPP, it was needed to render East German industrial grounds and facilities marketable. It addresses the concern that potential investors would refrain from getting involved in many areas fearing that possible contamination of grounds and costly remediation orders could endanger their investments. As in many cases, where the old operators or owners/ possessors were no longer available for clean-up liability (due to bankruptcy or dissolution of the firm) the public would have had to pay for remediation in any event, the benefit of investments222 could justify this exception from the principal rule of letting the polluter pay. Other amendments to environmental legislation, among them the BImSchG and the AbfG, can be considered as a step backwards for environmental protection. After reunification, waste managers suddenly faced the problem that waste exports to the former German Democratic Republic (GDR), which had been heavily relied on, were no longer possible or at least had to be reduced. As a response to this sudden and urgent need for more waste management capacity, § 4 BImSchG was amended to allow "the recycling and treatment" of waste in facilities which predominantly do not serve the purpose of waste management. 223 Examples given by the government included the incineration of waste in cement kilns or power stations. As the BImSchG does not even oblige operators of such facilities to recover 2 2 1 A release is granted if it seems necessary on a balance of all interests of the applicant, of those who have been damaged by the operation of the facility and environmental interests. The exemption comprehends private and public liability for contamination and damages. 222Such as the maintenance or creation of jobs or the modernization of industrial facilities, which now often meet high environmental standards. 223Anderungsgesetz zum Bundesimmissionsschutzgesetz BGB1.1 at 870. 97 energy from such processes, the amendments have been much criticized.224 The amendment also cut back public participation in approval processes which was more extensively provided under the AbfG. The same is true for the second amendment to both Acts.225 Since May 1, 1993, municipal waste and sewage sludge incinerators merely require a permit under the BImSchG; they no longer fall within the scope of § 7 AbfG. This makes a substantial difference. Procedures under the AbfG require an EIA and the positive justification of the proposed incinerator; operators applying for a permit do have no right to approval if the planned operation is merely in compliance with the existing law, they must prove the need for a facility. Future operators now no longer have to meet these requirements and have a legal right to operate a plant if it meets the required standards of the BImSchG. 226 The amendments reduce public participation in administrative environmental procedures, with the main goal being to accelerate such procedures and deregulate the operation of industrial facilities and land-use planning. This development is questionable both from a democratic and an environmental standpoint, as public pressure through campaigns and 2 2 4From the point of view of a reasonable waste management, aiming at the preservation of resources, they are indeed questionable. There is no incentive to minimize waste if it in the end simply "disappears," without an obvious need for recycling or reuse. See for further reading Kunig, Schwermer & Versteyl, supra, note 135 at Einleitung Rn.39. 2 2 5The amendment was part of a deregulatory legislation package aiming to facilitate investment in east Germany and ease the building of new private homes, mainly in west German cities (Investitionserleichterungs- und Wohnbaulandgesetz, BGB1.1 (1993) at 383). It contained other changes in law adding to the above mentioned, such as the acceleration of licensing procedures for industrial plants under the BImSchG. Some plants and activities no longer require a licence, others no longer involve public participation in the approval process (Amendment to the 4th Ordinance on Industrial Plants which require a License (4.BImSchV)). In the east German Lander, judicial review of authorization and licensing procedures has been restricted. 226See Breuer I, supra, note 13 at Rn.175. 98 grassroots groups has often significantly furthered environmental protection. A major concern is that unrecoverable mistakes could be made in the effort to quickly construct a new or improved infrastructure in East and West, which could be the origin of environmental problems of the next decades. On the other hand, there was no real alternative to the rapid reconstruction of the East. The existing industrial and waste management facilities often were not anywhere near compliance with western environmental standards and many posed serious environmental problems.227 H. The Closed Cycle Economy and Waste Management Act of 1994 The Closed Cycle Economy and Waste Management Act -Kreislaufwirtschaftsgesetz- was adopted on July 8, 1994, in a package deal together with the national law implementing the Basel Convention on the control of transboundary movements of hazardous waste and its disposal. 228 As the title of the Act indicates, it aims at consistent prevention and recycling 2 2 7In 1992, only 10% of the existing factories were in compliance with pollution control standards and 2/3 of municipalities were without proper sewage systems ((1992) 2:22 Environmental Policy and Law at 108). There have certainly been cases where after an evaluation of the pros and cons of a continued operation of the old facility against those of the erection of a not perfect, but much less impacting plant, the outcome is a substantial benefit for the environmental situation. Nevertheless, it is still questionable if legal amendments to the extent as they were made were indeed the necessary and wise step to achieve a quick reconstruction of the East, particularly as there is no indication that the amendments would be only temporary to adapt to the special situation of the reunification process. 2 2 8The national implementation of the Basel Convention (adopted the 12.3.1989) and of the "OECD-Council decision on the control of transfrontier movements of wastes destined for recovery operations," adopted at Paris on March 30, 1992, was prepared by the enactment of the "European Council Regulation (EEC) No. 259/93 on the supervision and the control of shipments of waste within, into and out of the Community" in force since May 6, 1994. It is of particular relevance to Germany as the world's biggest exporter of waste (FAZ of 9.11.94 at 10). The Directive empowers E.U.-member states to restrict the shipment of 99 of waste, with the ultimate goal of a closed cycle economy.22^ It takes a holistic cradle-to-grave-based precautionary approach towards waste management, relying to a great extent on individual responsibility for waste production. The Act introduces new instruments and concepts, such as product responsibility, and reorganizes the task of waste management between the public and the private sector, introducing mandatory waste management plans for large waste producers. 1. Terminology The definition of waste under § 3 I KrWG is identical with the E.U.-version set down in Art. la Framework Directive on Waste,2^0 defining it as something "which the holder discards or intends or is required to discard." This ensures the consistency of German with European law, which was challenged by some under the old Act.2-*1 § 1 KrWG abandons the disposal-oriented definition of waste. "Waste" now comprises the residues subsumed under § 5 I certain waste, relying on the principle of self-sufficiency in waste management at the Community or state level, the principles of priority for recovery and of proximity of waste management to the location of waste production. The shipment of waste out of or into the E.U. for the purpose of disposal is generally prohibited, exemptions are possible for members of the European Free Trade Association (Iceland, Finland, Liechtenstein, Norway, Switzerland) that have ratified the Basel Convention. For the purpose of recycling, waste can be shipped to or from a larger group of countries. Shipments are generally prohibited to ACP states (the 69 states situated south of the 60° latitude - African, Caribbean and Pacific States). In Germany, a liability fund, supplied with public and waste generators' monies, shall be installed to finance the management of illegally exported waste, which in general be taken back by Germany, in cases where the exporter or generator cannot be held liable. It shall give an incentive to waste generators to carefully consider with whom they contract for transport and disposal of their waste. (FAZ of 9.11.94 at 10). 229Petersen & Rid, supra, note 10 at 8; BMU, Concept of the Federal republic of Germany for avoiding and reducing waste-packagings, supra, note 9 at 4,5. 23091/156/EEC, adopted 18 March 1991 (OJ 1991 L 78/32). 2 3 1 See text accompanying footnotes 170 to 172, infra. 100 No.3 BImSchG as well as recyclable "goods," neither of which was caught by the old A c t 232 Waste is differentiated into waste for recycling (material and energy recovery) and waste for disposal, depending on its actual destiny, not the abstract possibility of recycling. Thus, a possessor of waste who seeks to avoid the obligation to discard it will have to prove specific measures of recycling. 23 3 A second requirement, that the material must be destined for disposal, complements the European definition of waste.234 An act of disposal takes place if the possessor of a movable recycles or discards it in a manner listed in the Act's annexes or abandons it without aiming at further use, § 3 II KrWG. § 3 III KrWG adds to the definition of waste two instances where the "intent to dispose" is assumed: waste comprised of industrial by-2 3 2The objective definition of waste has been specified in accordance with recent caselaw; under § 11 2. Alt. AbfG objects were considered waste if they were no longer used for their original purpose and needed safe waste treatment. Recyclables were only considered "waste" if handed over to waste management authorities. This caused the difficulty that persons stored materials and claimed them to be "economic goods;" such goods, as long as they had a market price, could not be requested to be discarded into the waste management system (see BVerwGUPR (1993) at 389 (tires) and UPR (1993) at 387 (construction waste)). The new Act defines waste more broadly. Possessors of waste materials no longer can escape the applicability of the KrWG by referring to the intended recycling or reuse which formerly rendered the material an economic "good." 233Petersen & Rid, supra, note 10 at 8; Gesetzentwurf der Bundesregierung of 15.9.1993, BT-Drs. 12/5672 at 41; Ludger-Anselm Versteyl & Helge Wendenburg, "Anderungen des Abfallrechts" inNVwZ (1994) 833-843 at 836. 2 3 4 To be applicable, the European definition of waste is, despite the listings of included waste materials in the Annex of the Framework Directive on Waste, in need of specification. E.g., it is unclear if it comprises waste designated for recycling (see Dawn Krystowski "Hazardous Waste In the European Community Council Directive of 12 December 1991 on Hazardous Waste (91/689/EC). It has gained some shape through the waste register issued by the European Commission on January 7, 1994, but whose function is considered to be rather declaratory and illustrative, than being binding law. The list includes 16 broadly described groups of waste materials which "are reduced to absurdity" by the last group, a "catch all clause," including materials of all kind not already listed (Petersen & Rid, supra, note 10 at 8). 101 products (formerly only addressed by the BImSchG) and also movables which are no longer used for either their original or any other purpose. Thus, the question now is no longer whether a possessor of waste has an intent to recycle or dispose, as it was under the subjective definition of waste under the 1986 Act. The decisive question is whether the object, in the eyes of an objective observer, is a "product" in the sense that it has been deliberately produced or is used for a certain purpose, or is "waste", which is of no conceivable use.23 5 2. Basic principles and obligations under the KrWG The Act is divided into a part on waste prevention and recycling and another on waste disposal. Both first state the general principles and objectives - of closed cycle management (§ 4) and safe disposal (§ 10) - followed by specific obligations imposed on producers and possessors of waste to comply with these (§§ 5/11). The basic objectives and obligations shall be specified by federal ordinances (§§ 7/12). According to § 4 I KrWG, waste shall be avoided in the first place, in particular by reducing its amount and hazardousness. If this is not feasible, it shall be recovered for material or energy, § 4 I No.l, III, IV KrWG. The remaining waste shall be excluded permanently from the closed cycle management and be safely discarded (§ 10 KrWG). Instruments to realize the primary goal of waste avoidance are laid out in § 4 II KrWG. They are the recycling of a substance within an industrial facility, waste avoiding product design and consumption of less wasteful and noxious products. The obligation of waste 235Versteyl & Wendenburg, supra, note 233 at 836; Petersen & Rid, ibid, at 9. 102 prevention is specified by § 5 I which refers to § 22 KrWG, regulating product responsibility, and § 5 I No.3 BImSchG. This reduces the scope of applicability of the general obligation to avoid waste stated in § 4II KrWG to the more limited area of industrial waste and product responsibility. In other areas, and where no enforceable ordinances on product responsibility exist, the duty to avoid waste generation will thus have effect only through its influence on the interpretation of provisions of the Act. In principle, the Act recognizes material and energy recovery as equivalent options of recycling.236 The choice of treatment is guided by the environmental impacts of the relevant recovery method. Involving a complex "eco-balance" of ecological, economic, technical, as well as policy factors, the decision on material or energy recovery from specific waste is reserved to the legislator, § 6 I S.4 KrWG.^37 j0 prevent the "down-cycling" of materials, § 5 KrWG postulates to recycle materials to a quality level equaling their former use as 236It clearly differentiates between waste treatment for recovery and the pretreatment to guarantee a safe disposal. § 4 III KrWG defines material recycling as the use of raw or secondary material contained in waste, as opposed to the extinction of noxious waste materials ,such as through its containment in new products. Energy recovery differs from incineration for waste reduction through the calorific value of the burnt waste. Energy recovery is permitted for wastes with a calorific value of over 11,000 Kj/Kg, § 6 II KrWG. Material and energy recycling are distinguished from waste disposal by the purpose of waste treatment: if the aim is to reduce contaminants, disposal is given, whereas recycling is characterized by the aim of a future use of the waste, § 4 III, IV KrWG. 237Where such legislation does not exist, authorities must consider the mentioned factors and additional requirements for permitting energy recovery set out in § 6 II KrWG, such as the actual use of the gained energy and the premise that residues from the incineration process can easily be discarded. Renewable materials are allowed for energy recovery without meeting the calorific value threshold (§ 6 II S.2 KrWG). This opens the possibility for incineration of wood, paper and cardboard. These materials have posed serious problems under the Packaging Ordinance, as markets for recycled products are limited and recycling capacities and technologies (wood) are insufficient. 103 much as possible.2-* 8 § 5 HI KrWG stipulates that recycling must take place in an orderly and non-detrimental (harmless) manner. 23 9 Like the similar regulation under § 5 I No.3 BImSchG24^ this refers to the recycling process as well as to the recycled products241 and is intended to prevent noxious substances, accumulated in the recycling process, from creating risks in the use 2 4 2 o r disposal of recycled products.243 With the extension of the KrWG to waste from production processes, formerly solely regulated by the BImSchG, the new Act had to be coordinated with § 5 I No.3 BImSchG. Requirements with respect to characteristics of recycled or discarded material set up under the KrWG are thus made equally applicable under § 5 I No.3 BImSchG (§ 9 K r W G ) . 2 4 4 The Act now recognizes that the recycling of industrial by-products waste within industrial plants is not a measure of waste avoidance, which was the formerly held position, but a form 238See RSU, Umweltgutachten 1990, BT-Drs. 11/8493 at Tz. 5 Iff. with further reference. An example for down-cycling would be the use of high quality plastics as filling for upholstery (Petersen & Rid, supra, note 10 at 10. 239"Orderly" means that the recycling process must be in compliance with other legislation, e.g., provisions of the BImSchG, like the precautionary and protection principle with respect to harmful environmental impacts pursuant to § 5 I No. 1,2. 240See Jarass, supra, note 158 at § 5 Rn.69. 241Recycling is considered non-detrimental or harmless if no negative impacts on the public from the kind of waste, the contaminants and the type of recycling, and no accumulation of contaminants in the substance cycle are expected. 242These risks are mostly already addressed in other legislation, such as the Act on Product Liability and the Act on Chemical Substances, Petersen/Rid, supra, note 10 at 1. 243Petersen/Rid, ibid, at 11; Landerarbeitsgemeinschaft Immissionsschutz (LAI), "Musterentwurf des LAI fur eine Verwaltungsvorschrift zu § 5 I No.3 BImSchG" in NVwZ (1989) 130-133 at 130; Jarass, supra, note 158 at § 5 Rn.69. As under § 3 II S.2 AbfG and § 5 1 No.3 BImSchG, waste must be recycled as long as this is technically possible and economically reasonable. 244Apart from those, waste management of industrial plants operating under the BImSchG is still solely regulated by this legislation, § 9 KrWG. 104 of recycling. 245 As it was only the recycling of waste that needed to be "orderly and non-detrimental" under § 5 I No.3 BImSchG, the old interpretation of the law avoided these requirements for recycling within industrial facilities.246 § 10 I KrWG requires that waste which is not recycled safely be discarded in order to protect the general public.247 The definition of the goods and the forms of impacts protected under the Act has changed. It now includes animal and plant life, without reference to their use for humans; although they were covered in the old Act under the aspects of their use for humankind and of "matters of the protection of nature," their present inclusion into the Act represents a step away from the anthropocentric view on nature that has traditionally dominated environmental law. 2 4 5This interpretation turned the purpose of § 5 I No.3 BImSchG on its head. It was held "for pragmatic reasons" because measures of waste avoidance needed to be examined in the permission procedure under § 4 BImSchG anyway as "intern" "requirements with respect to the facility operation", whereas the "extern" "orderly and harmless/non-detrimental recycling process" merely had to be examined with respect to plausibility, not being an essential part of the tasks involved in an approval procedure on the operation of a plant (LAI, supra, note 243 at 130,132). 2 4 6 As a measure of waste avoidance it had only to be in compliance with the precautionary and protection principles under § 5 I No. 1,2 BImSchG, which only apply to environmental impacts caused by the operation of a plant, but not to impacts caused by its products or internally recycled materials. As a result, it was impossible to impose requirements on an operator under the BImSchG with respect to the "orderly and non-detrimental" recycling of by-products within a facility (Petersen & Rid, supra, note 10 at 12). E.g., the mixing of filter dust containing cadmium into klinker stone used for construction could not be regulated which enabled the uncontrolled "smuggling" of contaminants into the economic cycle and thus into the environment. 2 4 7This duty applies to waste management authorities and also generators and possessors of waste (§§ 10,11 KrWG). 105 3. Responsibility for waste management and product responsibility At the core of the new Act lies the principle of product responsibility. § 22 KrWG determines that whoever develops, processes or distributes a product is under the statutory responsibility to design the product in a way that prevents industrial by-product waste and that ensures the environmentally compatible recycling or disposal of the product after use. These rules need to be implemented in ordinances under §§ 22,23,24 KrWG to develop an enforceable legal effect. Beyond the effect of its implementation in ordinances, however, the introduction of product responsibility into the Act has significance. The statutory responsibility established in § 22 II KrWG implies a continuous latent obligation of the affected persons to design products in an environmentally friendly manner. The responsibility imposed by § 22 II KrWG is also likely to make it easier for the government to meet the proportionality test when it enacts tightening ordinances under §§ 23, 24 KrWG, as its establishment as a basic obligation strengthens the weight of product responsibility as a factor in the proportionality test. 248 The instruments available to the government using its ordinance power are modeled after the current legislation in § 14 AbfG.249 One innovation is the possibility of obliging consumers to return waste to those who are under a take-back or recycling duty;250 2 4 8 § 22 II presents a guideline for voluntary efforts of trade and industry to minimize waste, who must be prepared for coercive legal measures specifying their product responsibility where such efforts fail (see BMU, Concept of the FRG for avoiding and reducing the volume of waste-packaging, supra, note 9 at 8; Petersen & Rid, supra, note 10 at 10). 249Gesetzentwurf der Bundesregierung of 15.9.1993, BT-Drs. 12/5672 at 1,32. 2 5 0This addresses a major complaint of local waste management authorities who claim that huge amounts of packaging waste end up in the general waste stream. This is handled on public costs, while the private organization running the recycling system established under the Packaging Ordinance is charging a license fee for handling waste packaging that it 106 The idea of product stewardship set down in §§ 22 ff. KrWG is complemented by §§ 5, 10 KrWG, putting the responsibility for waste recycling and disposal on the generator or possessor. Thus, the private "polluter" is now targeted by the Act throughout the life cycle of the (waste) product.251 This concept recognizes the necessity of individual, private responsibility as a premise for effective waste management, which is incompatible with the traditional notion of waste management being a task of local public authorities. In principle, producers and possessors shall comply with their obligations themselves, but are offered two ways to rely on the service of third persons in doing so. While not delegating their own obligation, they can contract with reliable third persons listed in §§ 16-18 KrWG. Alternatively, they can delegate the obligations themselves to reliable persons, provided that waste management authorities agree to this. Safety and legal compliance of private waste managers are controlled through approval procedures and continuous monitoring under participation of local waste management authorities.252 Public authorities are under the same recycling and disposal obligations as producers and possessors of waste, § 15 I KrWG, and can also delegate their obligations to third persons actually does not treat, see case study in Chapter 5. The question, however, remains, how this obligation is to be enforced. 2 5 Exempted from this duty to recycle or discard waste safely on their own are private households and persons who are unable to comply with their duties under §§ 5, 10 KrWG. These groups must hand waste they cannot recycle over to the public waste management authorities, § 13 I KrWG. 252Thereby, authorities maintain control over the organization and planning of local and regional waste management and the constitutionally guaranteed autonomy of communities and regional districts remains untouched. This also responds to the fear of local authorities that further monopoly-like structures like the recycling company DSD, established by the packaging industry to fulfill its take-back and recycling obligations under the Packaging Ordinance, might develop (see also: E.E.L.R. (Aug./Sept. 94) 3:8 at 213; E.E.L.R. (July 94) 3:7 at 185). 107 (§§ 16-18, 15 II KrWG). Local authorities will now have the right to exclude from the public waste system not only waste that is hard to handle, but also waste that is under a take-back obligation pursuant to an ordinance based on §§ 23,24 KrWG 2^ 3 4. Evaluation and analysis of the legislation Targeting producers, possessors and distributors of products as well as of waste, the Act introduces a consistent cradle-to-grave approach into waste management law for the first time. With the notion of responsibility for a product throughout the whole life cycle being an integral element and the full introduction of the three R's hierarchy,254 the Act has finally adopted a clear precautionary approach towards waste management. Shifting the responsibility for products and waste further from the public sector to the private "polluters," the Act targets those persons who have the direct means, expertise and power to influence the wastefulness of product design and manufacturing as well as the product's final destiny in waste management. An exemption from this emphasis on a consistent implementation of the PPP is only made for households where the PPP-approach of responsibility for products and waste is not suitable. Consumer responsibility is addressed in 2 5 3 As this does not apply to household waste, the provision does not resolve the problem of waste management authorities who continuously find green dot waste under the Packaging Ordinance in the general waste stream. But provided that further take back legislation will be enacted, the exclusion option could relieve local authorities from substantial burdens of problematic waste materials (e.g. cars, electronic scrap). 254Under the AbfG, prevention and recycling are put on equal ranks, although the order of the listing in the Act could speak in favour of a higher ranking of avoidance. (See footnote 178 and accompanying text, infra) 108 § 4 II KrWG, denning waste avoidance as consumption oriented at the acquisition of non-wasteful and non-noxious products. Industry has criticized the new Act as being too rigid and incompatible with a free market economy.255 However, the Act leaves the means of coping with product responsibility fairly open to the affected persons. Under this moderate approach, producers and distributors can make use of market mechanisms and it can be assumed that coercive measures will be imposed only if they fail to comply with their obligations under the Act voluntarily.^56 That producers are able to cope with such product responsibility is proven by firms who have discovered the environmentally friendliness of products as a market advantage and have made it the focus of their marketing strategy.257 One questionable aspect from the perspective of the three R's hierarchy is the equal ranking of recovery of waste for secondary material and for energy production. This might cause a lack of incentives to improve recycling methods and to create markets for recyclables, to develop new recyclable and less wasteful products or to raise the content of recycled material in new products. Incineration could also make emerging or existing technologies for material recovery of certain waste, like waste oils and liquid solvents, 255Wolfgang Hilger, "Less Regulation - More Opportunities for Innovation" (1993) 12:1 Environmental Policy and Law at 37. 2 5 6Even then, the organization of waste management would probably be left to them. It is the declared aim of the legislator to make diverse instruments available to the federal government under the ordinance power to enable it to motivate industry to achieve the goals set by environmental policy with the fewest regulatory intervention possible (see Gesetzentwurf der Bundesregierung, BT-Drs. 12/5672 at 35; Thomas Rummler, "Second Osnabruck Talks on German and European Environmental Law" UPR (1994), 176.) Consequently, the Act maintains the use of target rates and objectives ("Zielvorgaben"), which are set up for those who voluntarily comply with their product responsibility, § 25 KrWG. 257Ibid. 109 unattractive and unprofitable.2-'** Another problematic aspect is that the recycling of products into oil which is subsequently used as fuel is regarded as material recycling, not energy recovery. This extends the possibilities of incinerating waste de facto over the limits set in §§ 5 V, 6 II KrWG. In this regard, the new Act could have put more emphasis on the promotion of waste avoidance and the preservation of resources in the first place. Nevertheless, in summary, the new Kreislaufwirtschaftsgesetz can be regarded as a substantial improvement, as it presents a consistent and systematically well structured turn towards a focus on the principles of the three R's and their implementation by using the PPP. However, the true effect of the amendments of 1994 will be manifested in the way and extent that the government is going to make use of its ordinance powers within the next two years before the enactment of the law. This transition period gives industry the chance to comply voluntarily with the obligations set down in the Act to avoid their mandatory application. Thus, it remains to be seen if the government will be prepared to give a precautionary approach, entailing waste avoidance, the priority in the implementation of the Act, so that the ambitious environmental policy model underlying the law will prove to be more than mere window-dressing. II. Canada Canadian waste management legislation shows a similar evolution of a preventive and integrated approach towards environmental management. As in Germany, the state has 258(July 1994) 3:7 E.E.L.R at 185. 110 tended to favour a cooperative approach towards waste management and, more recently, one can note a move towards a reliance on individual environmental responsibility. A. The first generation of Canadian waste management law before the 1970s -pollution abatement legislation Canadian waste management law has its origins in laws created out of a concern for hygiene and public health. During the latter part of the nineteenth century, the high rate of death from such diseases as typhoid was recognized as being caused by contamination of drinking water supplies by human and animal waste.259 Introduction of sewage treatment and disposal and chlorination of drinking water started in many larger Canadian cities prior to the First World War, but, nevertheless, in 1990 over one-quarter of the Canadian urban population still lived in municipalities where sewage is discharged into the environment without prior treatment. 260 As an urban public health issue, jurisdiction on waste management originally was vested exclusively in municipal hands, but was gradually and partly assumed by provincial health boards, formed to provide guidance and leadership to 259Macdonald, supra, note 17 at 86. 260Macdonald, ibid, at 24, referring to information from Environment Canada dated June 19, 1990. The City of Vancouver had made attempts to address the problem of sanitary sewage and surface water already around 1910, to respond to rapid population growth in the metropolitan area and an epidemic typhoid fever. A scheme for sewerage and drainage enacted in 1914 was found to be in need of total reexamination by 1949, as the population in the largely expanded area had increased by four to five times, with a hundred-fold increase of business and industry. As a result, the Greater Vancouver Sewerage and Drainage District was created to match the needs of construction, maintenance and financing a sanitary and storm sewerage and drainage system for the metropolitan area. Enactment the Act to incorporate the Greater Vancouver Sewerage and Drainage District, the main concern was over "problems of health and finance and the aesthetic results." See: Explanatory notes to Bill No.71 Greater Vancouver Sewerage And Drainage District Act, Legislative Assembly of B.C., Bills 1956 at 1-2. Ill local authorities.261 For the most part, older Canadian legislation addressing environmental protection issues did so as a part of a larger statutory scheme concerned with health protection, water or fisheries. Besides regional laws, there was mainly the federal Fisheries Act of 1868 which indirectly dealt with water pollution in s. 33 (2), prohibiting the discharge of substances deleterious of fish into waters. 262 The increase of available scientific data on pollution effects as well as dramatic events demonstrating the hazards of uncontrolled pollution, such as the severe contamination of the Great Lakes,263 caused governments to establish legislative and administrative regimes for pollution control during the 1950s and 1960s. With rising concern over pollution gradually moving from immediate, local, and short-term effects to more subtle and longer-term health threats caused by regional or global pollution, the jurisdiction over pollution control was increasingly lifted from a local to a provincial and federal level. The traditional mode of managing waste was to deposit it in garbage dumps, where rubbish was burned and not regularly covered. Over the last twenty years, these were replaced by "sanitary landfill" sites, engineered and operated in accordance with stricter legislated standards intended to minimize nuisance and potential dangers from leaking and gas.264 According to a study produced in 1986 to assess potential environmental dangers 261Macdonald, ibid, at 86/87. The Vancouver and Districts Joint Sewerage and Drainage Board was established in 1914, Explanatory notes to Bill No.71, Greater Vancouver Sewerage And Drainage District Act, Legislative Assembly of B.C., Bills 1956 at 1. ^FisheriesAct 1932, c.42, s.l, R.S. 1952, c.119. 2 6 3 A study by the International Joint Commission between 1946-1949 for the first time brought up the issue of water pollution by industrial wastes, disposed of in or near the Great Lakes (Macdonald, supra, note 17 at 136). 2 6 4In modern landfills, for example, waste has to be covered at regular intervals and sites usually incorporate systems designed to minimize or collect leachate and gases to reduce 112 from toxic waste, there were 141 active and inactive waste disposal sites in B.C., 220 in Ontario and 5,493 in Canada at that time.265 As the amount of waste constantly increased, while landfill sites were becoming scarce and were also recognized as a risk to the environment, incineration of waste gained popularity in the 1960s/1970s.266 However, by the beginning of the 1980s, smelters, kilns and fossil fuel combustion in thermal power plants were identified as emitters of sulphur oxide and other air contaminants causing acid rain.267 At that time, awareness that industrial air pollution posed a major environmental threat, leading to the acidification of lakes and soil and the destruction of fish habitat and forests. 268 These problems were addressed by the enactment of clean air legislation imposing stricter air quality standards and requiring the installation of best available cleaning technologies. 269 their escape onto adjoining lands or into groundwater or surface water. See Estrin & Swaigen, supra, note 4 at 771 for Ontario. 265Environment Canada, State of the Environment: Report for Canada 1986 (May 1986), cited by Peter N. Nemetz, "Federal Environmental Regulation in Canada" (Summer 1986) 26 Nat.Res.J. 551-608 at 590. Figures vary: Macdonald, supra, note 17 at 206 notes 1,400 landfills for Ontario alone in 1990. 266It also seemed to be the perfect answer to a possible energy crisis, so that a number of incinerators were constructed in Canada (Macdonald, supra, note 17 at 192,209).To replace six local landfills, Greater Vancouver built its "state of the art" mass-burn waste-to-energy plant in Burnaby as well as the Coquitlam Resource Recovery Plant, designed to produce a "fibre-based fuel" in the 1980s. (Recycling Council of British Columbia, Reiterate April 1993 at 3). 267Nemetz, supra, note 265 at 599; Estrin & Swaigen, supra, note 4 at 495. 2 6 8 As a House of Commons report stated: "Canada is facing the greatest environmental threat in 114 years of our existence as a nation." (Report of the Subcommittee on Acid Rain of the Standing Committee of Fisheries and Forestry, House of Commons, Still Waters, the Chilling Reality of Acid Rain (Ottawa, 1981) at 11. 269Nemetz, supra, note 265 at 601/602 gives an overview on action taken by Canadian governments in response to the acid rain problem. See also Estrin & Swaigen, supra, note 4 at 472-476. 113 B. Pollution control legislation bv the beginning of the 1970s: the Pollution Control Act of British Columbia Responding to concerns about safe supplies of drinking water and hygiene the Pollution Control Act of B.C. was enacted in 1956.270 j^e Act originally dealt only with municipalities and municipal discharges. In 1960, the law's focus was shifted to pollution control, when it was made applicable to industrial waste (included in the term of "works" controlled by the Act) and to lands other than municipal areas.271 it established a provincial Pollution Control Board with the mandate to determine water quality standards and to control the pollution of waters by disposal of sewage and other waste material through the issuance of permits. The discharge of such material without a permit was prohibited. A permit conferred the right to discharge waste in the prescribed manner, quantity and quality. It could also require the holder to remediate pollution that is unexpectedly caused by the approved disposal, or require the additional treatment of discharges if this was needed to reduce effluent concentration. Furthermore it could contain monitoring duties and give emergency instructions. Compliance with the Act could be enforced by orders of the Board requiring that the effluent be brought up to a prescribed standard and by sanctions such as imposition of fines or imprisonment. The Act complemented the Health Act (R.S.B.C. 1897, 270An Act to control the Pollution of Waters of the Province, S.B.C. 1956,c.36. Its enactment was a reaction to objections of Richmond officials to a proposed sewage treatment plant of the City of Vancouver to be located in Richmond and to discharge effluent in the north arm of the Fraser River, Alastair Lucas, "Water Pollution Control Law in British Columbia" (1968) 4:1 U.B.C. L. Rev. 56 at 65. 271Lucas, ibid, at 66. 114 c.912 7 2), the Water Act (R.S.B.C. 1960, c.405) as well as the Greater Vancouver Water District Act (S.B.C. 1924, c.22) which also addressed the issue of safe drinking water 2 7 -* During the 1970s most industrial discharges were brought under permit under the authority of this A c t 2 7 4 Sewage treatment and waste management, including the collection, transport and disposal of waste, was organized by municipalities and regional districts.27 ^  As logical caretakers for sanitation in their region, municipal and regional authorities maintained local sewage and waste treatment facilities and enforced by-laws regarding discharges within their boundaries. By prohibiting the discharge of pollutants into the environment, the Pollution Control Act implied a legal obligation of possessors of waste to make use of the public waste management system. Pursuant to the Municipal Act, municipalities had the power to compel persons to make use of public sewage and waste management systems, s.534. For the service of garbage collection and disposal, waste producers were charged a fee determined in municipal by-laws.27^ In most cases such a charge was and still is levied per household, integrated in the tax statement and independent of the amount of waste discarded by the 2 7 2 Since 1917, the provisions on approval of waterworks and sewerage plans modes of disposal of liquid household waste, sewage and other waste had remained almost unchanged, Lucas, ibid, at 63. 2 7 3 By 1967, most provinces had established such commissions to regulate water quality (Macdonald, supra, note 17 at 137). 274Roger Cotton & Alastair Lucas, Canadian Environmental Law, 2d. ed. (Toronto/ Vancouver: Butterworths, issue 21 April 1995) at COMM:7:2. 2751979 Municipal Act, R.S.B.C. 1979 S.531-534A, currently s. 611-613 (sewage treatment), s.614-615 (waste removal), R.S.B.C. 1979, c.290 as of November 25,1993. 2 7 6 S. 534 (If) of the 1979 Municipal Act R.S.B.C. authorized the Council of a municipality to levy such charges. 115 household.277 Municipal sewage or waste treatment operations needed approval under the Pollution Control Act. During the 1960s and 1970s, the Pollution Control Act was amended several times.278 j n 1976, the Director's power to issue a pollution abatement order was extended. Under the old s. 10 (g), the Director had to issue an order to improve effluent treatment, before he or she could order pollution abatement in case of non-compliance. If necessary, abatement could now be ordered without this intermediate step. Enforcement of the Act was also enhanced by raising the maximum fine for offences under s. 20A from $1,000 to $10,000 and the term of imprisonment from up to three months to up to a year.279 The 1977 amendment granted the Minister emergency powers in the case of spills or other pollution requiring action that could not immediately be carried out by the polluter or local authorities. Pollution abatement and remediation costs could be recovered from the person causing or permitting the pollution, under s.26.280 The Pollution Control Act exemplifies a shift towards pollution control that took place in Canadian environmental law by the beginning of the 1970s.281 Until then, the approach 2T7Recycling Council of British Columbia, Reiterate April 1993 at 18. 2 7 8In 1967, administration of the Act was assigned to "the Director," restricting the function of the Pollution Control Board basically to setting policy limits in cooperation with the director, who, for example, prescribed water quality standards and the circumstances that presented a state of pollution (An Act Respecting Pollution Control, S.B.C. 1967, c.34). The 1968 amendment included a re-introduction of a penalty section to assist enforcement and empowered the director to suspend or cancel permits in case of contravention to an order, permit or provision under the Act or regulations. A provision to facilitate future cooperation of federal and provincial governments in the field of pollution control was included (Pollution Control (1967) Amendment Act, 1968, S.B.C. 1968, c.38 s.9, s.5 (1), s.4, s.8). ^Pollution Control (1967) Amendment Act, 1976, S.B.C. 1976, c.40. ^Pollution Control (1967) Amendment Act, 1977, S.B.C. 1977, c.17,53. 2 8 1 Webb, supra, note 16 at 11. 116 towards pollution had relied on an absolute abatement of any conduct potentially harmful to the environment. A good example for this was s. 14 (2) of the Fisheries Act of 1868, a blanket prohibition stating that "...any deleterious substance shall not be drawn into water frequented by...fish...under a penalty not exceeding one hundred dollars...."282 These blanket prohibitions proved to be simplistic and of not much use, as they embraced all kinds of discharges into the environment, regardless of their potential harm and the specific circumstances of discharge, like use or characteristics of the receiving medium. As Webb^> states, their broadness rendered them more or less unenforceable, leading to an '"hear-no-evil-see-no-evil' approach" by administrative authorities. It was realized that such general prohibitions tended to have the opposite effect of their stated aim of preventing pollution, as an offence in most cases would remain unpursued. Thus, the modern type of environmental legislation was developed, consisting of regulatory pollution control regimes like the Pollution Control Act. These pollution control laws provided new flexibility to administrators who could, on the basis of the standards of environmental quality and abatement technology prescribed in regulations, take an individual approach to each polluter. Another substantial improvement was that they allowed the establishment of diverse standards for each industry sector, for particular regions, and for individual operations. 284 ™Ibid. at 11. See also s. 33 (2) R.S. 1952, c. 119. 2S3Ibid. at 69. See also his quotation of the Minister of Fisheries at 14: "the sections in question were all to embracing and all too comprehensive...What we really need ...is not an absolute prohibition on everything thrown into our waters but more precise measurements of what can be thrown into water and still keep it clear, clean and useful to fisheries...." ™Ibid. at 14. 117 C. Litter Act In 1970, waste management legislation under the Pollution Control Act was supplemented by the Litter Act, the first provincial statute focusing solely on the issue of waste management.2*^ As the parliamentary debates reveal, it was a response to the increasing amounts of garbage produced in the course of industrial automization and the development of throw-away convenience products and self-service systems.2*^ The law aimed to induce a shift in attitude towards waste, from the perception of cleaning up litter being a public task to that of individual responsibility for one's own waste.2**7 Based on the aforementioned pollution control scheme, the Litter Act prohibited the disposal of litter on any land or into fresh water, provided a person was not holding a permit to discharge under the Pollution Control Act2**** or came within other exemptions listed in s.3. "Litter" was defined as waste materials, such as for example beverage containers, or other discarded articles or manufactured goods. Industrial by-products, -from processes of mining, logging, sawmilling, farming, or manufacturing, were excluded, s.2. The prohibition of discharge did not apply as long as litter was properly buried in the ground or burnt in compliance with other law, s.4 (b,c), s.5(c). ^Litter Act, S.B.C. 1970, c.22. 2 8 6The honourable Mr. Kiernan, Legislative Assembly of B.C., Debates, 1st Session, 29th Parliament at 670 (17 March 1970). 287Products such as beverage containers were often thrown out into the countryside, particularly along highways, and posed an aesthetic as well as an environmental problem. The Minister of Recreation and Conservation described the law's underlying philosophy as "Buster, it's your litter - if you packed it in there, you pack it out!" (the honourable Mr. Kiernan, Legislative Assembly of B.C., Debates, 1st Session, 29th Parliament at 678 (17 March 1970)). 288Today this would be a permit under the British Columbia Waste Management Act. 118 For beverage containers (beer, cider and pop), the Act established a mandatory deposit-refund system to be run by retailers. S.3 required a retailer selling containers for use off-premises to offer a refund of at least 2 cents upon return of the container. Concerning the further destiny of the waste containers the Act remained silent. Consistent with the then dominant notion of the throw-away society, the focus was on giving consumers an incentive to return containers so that they could be discarded in an orderly manner, and did not purport to support recycling or refill systems. During the legislative debates critics pointed out that beverage containers presented only a small part of the litter problem and that thus the Act discriminated against the soft drink and beer sector, while producers of other commodities for household use were left out.289 Compliance with the Act could be ensured by conviction for an offence under the Summary Convictions Act, s.7,8. However, enforcement of such laws as the Litter Act proved to be problematic as in most cases it is difficult to trace the offender who left litter behind.2 9 0 D. Changing attitudes around the beginning of the 1980s By the beginning of the 1980s, the perspective on waste management started to change. Increasing scientific knowledge on the effects of pollutants and dramatic events such as the Love Canal scandal in New York State, as well as problems in coping with the amounts of waste produced, brought about new approaches to the handling of waste. They were 289Legislative Assembly of B.C., Debates, 1st Session, 29th Parliament at 670,678. 290Estrin & Swaigen, supra, note 4 at 726 note that in Ontario enforcement authorities had never laid any charges for the high fines provided for littering offences under the Ontario Environmental Protection Act and that "maybe six tickets had been issued." 119 manifested in legal action taken on all government levels. In 1982, B.C. enacted the Waste Management Act to replace the Pollution Control Act and the Litter Act. The latter is still in force, as section 41 WMA, which was to repeal the Litter Act, has never been enacted. E. Regulation of waste under the Waste Management Act of 1982: Introduction The creation of the WMA, in force since September, 16, 1982, was induced by the findings of a task force in 1980 that pollution permits and orders addressing violations of the law often were written in ambiguous terms and lacked specific information, rendering their enforcement very difficult. Frequently, a lack of action by authorities had led to "tacit approvals" of the illegal conduct.291 The task force recommended stopping "the practice of amending Pollution Control permits to justify or legalize discharges in excess of present permits."292 1. The legislative scheme established under the Waste Management Act The WMA is the comprehensive pollution control statute of B C , regulating not only waste, but subjects such as air pollution as well. Dealing with discharges in general, it is based on two key provisions. S. 3 prohibits to introduce waste into the environment in such a manner or quantity to cause pollution, unless done in compliance with a permit, approval or regulation or an approved waste management plan, or otherwise legalized in a way 2 9 1This would be relevant in the context of a due diligence defence, see Nemetz, supra, note 265 at 572-574. 2 9 2 A . Ackerman & B. Clapp, Fraser River Task Force Report (Jul. 30,1980, unpublished report, Victoria: B.C. Ministry of the Environment, quoted after Nemetz, supra, note 265 at 574). 120 mentioned in the law. According to ss. 3 (1.2), this prohibition applies to persons who in the conduct of an industry, trade or business cause or allow waste to be introduced into the environment. The terms "waste, environment and pollution" are all defined terms, calling into play a number of other defined terms under the Act. S. 1 (1) defines the "environment" as "air, land, water and all other external conditions or influences under which man, animals and plants live or are developed." "Pollution" means "the presence in the environment of substances or contaminants that substantially alter or impair the usefulness of the environment." "Waste" is defined broadly, including "air contaminants, litter, effluent, refuse, biomedical waste, special wastes and any other (designated) substance...," independent of any commercial value of the substance or capability of being used for a useful purposes.293 The term of "introducing" waste into the environment is not defined by the Act. It leaves it open whether introduction would require an intentional or negligent act or if "migrating pollutants" from polluted sites would come under the law. This would depend on whether a substance can only be introduced once into the environment, or if continuing or additional contamination caused by it would count as a new or continued introduction 2 9 4 2 9 3The latter addition had been necessary after a court under the Pollution Control Act had rejected to apply the law to hog fuel, arguing that it did not constitute waste, due to its capability to be used for a useful purpose (R. v. Maych & Maych, [1981] B.C.D. Crim.Conv.5860-01 (B.C.P.C.)). The term "waste" is not restricted to substances listed in the definition, but an expanded interpretation must be based on the notion of harm to the environment (R. v. Finlay ForestIndust. Ltd., [1988] B.C.W.L.D. 3478, 3 C.E.L.R. (N.S.) 99 (B.C.C.A.)). 294Dianne Saxe, Ontario Environmental Protection Act Annotated, release no. 15, April, 1995, (Toronto: Canada Law Book Inc., Ontario) at A-8 for s. 1 (1) EPA's term of "discharge," which has been interpreted controversially: see Rv. J. Brett Hill (unreported) 1989 Ont. C.A. where a polluter was held liable for 11 days of "continuing discharge", as opposed to Canadian National Railways Co. v. Ontario (Director, Environmental 121 Furthermore, waste "produced by any prescribed activity or operation" is prohibited from being introduced into the environment This was intended to prevent pollution from non-commercial activities, such as changing motor oil, which are too small on an individual basis to allow the Crown to prove that waste was introduced into the environment "in a manner or quantity to cause pollution," but which nevertheless posed an overall environmental problem; 295 Regulations to define such conduct have never been enacted, so that the provision has been left inoperable. A list of exemptions from the prohibition is set out, generally including activities permitted by public authorities and others explicitly listed, s. 3 (3). S. 6 prohibits littering in public places and includes an express statement that liability under the provision, like under s. 3, is strict: according to ss. 4 (6), the onus of establishing that the prosecuted conduct of littering is legal under a permit or approval is on the defendant.296 Pr