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«ENVIRONMENTAL RESEARCH OF THE FEDERAL MINISTRY FOR THE ENVIRONMENT, NATURE CONSERVATION, BUILDING AND NUCLEAR SAFETY Project No. (FKZ) 3711 11101 ...»

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According to the second sentence of Article 191 (2) TFEU, Union policy on the environment shall be based on the precautionary principle and on inter alia the principle that preventive action should be taken. It is disputed whether both principles are synonymous or whether the principle of preventive action is the more general and the precautionary principle the more specific principle. 392 In any case, both principles are legally binding and not just political maxims. 393 As the precautionary principle is not defined in Article 191 (2) TFEU, it is ultimately for the courts to flesh out the principle. 394 The ECJ and the ECI have developed case law not only for the environmental sector, but also in the area of health protection. In the latter area, a detailed elaboration of the precautionary principle has been established by the ECI in the Pfizer judgment of 11.9.2002 395, which some consider to be the leading case on this principle. 396 Furthermore, the EU is promoting some geoengineering projects within the 7th Research Framework Programme.

See Umweltbundesamt (2011), p. 13-14.

See Callies (2011), Art. 191 para. 27 with further references.

See Callies(2011), Art. 191 para. 48 with reference to ECJ, C-284/95 (Safety HiTech), para. 36.

COM(2000) 1 final, p. 9.

ECI, case T-13/99 (Pfizer Animal Health).

Meßerschmidt (2011), chapter 3 para. 108 with a further reference.

Options and Proposals for the International Governance of Geoengineering According to the ECI in this case 397, the precautionary principle applies in situations in which there is a scientific uncertainty. In such a situation, a preventive measure may only be taken if the risk, although the reality and extent thereof have not been ´fully´ demonstrated by conclusive scientific evidence, appears nevertheless to be adequately backed up by the scientific data available at the time when the measure was taken. The resulting risk assessment is a twofold task: First, the Community institutions have to determine the level of protection which they deem appropriate for society (political component). Depending of the individual case, the authorities may thereby take into account, inter alia, of the severity of the impact on human health were the risk to occur, including the extent of possible adverse effects, the persistency or reversibility of those effects and the possibility of delayed effects as well as of the more or less concrete perception of the risk based on available scientific knowledge. Second, a scientific risk assessment must be carried out before any preventive measures are taken (scientific component). Such an assessment has to be entrusted to experts and be based on the principles of excellence, independence and transparency to ensure the scientific objectivity of the measures adopted. It must also enable the competent authority to decide, in relation to risk management, which measures appear to it to be appropriate and necessary to prevent the risk from materializing. Thus, decisions of the Community institutions are to be taken in the light of the best scientific information available and to be based on the most recent results of international research. If a full risk assessment is impossible because of the inadequate nature of the available scientific data, the competent authority must weigh up its obligations and decide either to wait until the results of more detailed scientific research become available or to act on the basis of the scientific information available.

A similar approach, encompassing both the political and the scientific component, is taken by the Commission in its Communication on the precautionary principle of 2.2.2000. 398 According to Krämer, however, risk assessment as a requirement for preventive action under the precautionary principle could only be introduced by way of legislation. 399 He thereby refers to the decision of the ECJ in the Afton Chemical case 400, where the court did not consider a risk assessment necessary.

These criteria may thus be taken into consideration for preventive measures against geoengineering as a technology potentially harmful to the environment. However, the issue that geoengineering itself might be a preventive measure against the possible harms of climate change – in general: that a potentially harmful action might be necessary to prevent another potential harm - does not appear to be reflected in EU case law on the precautionary principle.

The precautionary principle under German law for the most part has similar legal implications as the EU principle. 401 It is detailed in specific laws which make it applicable to the single case.

Furthermore, geoengineering is relevant to the principle of the protection of the environment and basic individual rights. The former is laid down in Article 37 CFREU and Article 20 a of the German constitution (Federal Basic Law of Germany: Grundgesetz – GG). On both levels, no The following is drawn from para. 142-163 of the case.

COM(2000) 1 final, p. 2-3.

Krämer (2011), chapter 1 para. 28.

ECJ, case C-343/09.

See Meßerschmidt (2011), chapter 3 Para. 132.

Options and Proposals for the International Governance of Geoengineering right to a healthy environment is created, but a principle to be observed by the Union respectively the German State authorities. Again, it has to be beared in mind that geoengineering is not only a potential threat to the environment, but aims at protecting the climate as part of the environment.





Basic individual rights at stake in relation to EU activities include Articles 2 (right to life) and Article 3 CFREU (right to the integrity of the person), corresponding to Article 2 (2) GG in relation to German State authorities. In a decision concerning a genetic installation, the Higher Administrative Court of Hessen deduced from the obligation of the State to protect life and the integrity of the person according to Article 2 (2) GG that specific legislation was necessary for the establishment and operation of such an installation, thus ruling out the application of the 4th Federal Immission Control Ordinance in the case. 402 It has also been claimed in the context of geoengineering that specific legislation by the German Parliament was generally required to allow such activities. 403 However, as far as an activity falls under the scope of an existing Act of Parliament, the activity is already regulated by a parliamentary decision, which may be further specified by the courts in interpreting this legislation. If the existing legislation is considered outdated or insufficient, it is the legislative bodies´ political decision to provide for new legislation. 404 The situation is only different if the existing legislation does not sufficiently take account of basic rights or other constitutional law involved in the activity at stake. In this case, contrary to the decision of the Higher Administrative Court of Hessen, it is up to the German Constitutional Court to declare the existing legislation void and request new legislation.

On the other hand, basic individual rights relevant to geoengineering also include the right to freedom of research granted by Art. 13 CFREU and Article 5 (3) GG. Scientific research, which includes all kind of research activities by any actor 405, shall be free of constraints. According to Article 52 (1) CFREU, the rights and freedoms granted by the CFREU may be limited by law if these restrictions are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others. Thus, limitations may also be based on the principle of the protection of the environment (Article 37 CFREU). 406 In the context of geoengineering, limitations may in particular comprise codes of conduct and similar requirements related to research activities. However, Article 5 (3) GG does not amount to a right to research funding. 407 In contrast with Article Art. 13 CFREU, freedom of research granted by Article 5 (3) GG may only be limited by other constitutional provisions such as the above-mentioned rights to life or to the integrity of the person according to Article 2 (2) GG. Although the principle to protect the environment under Article 20a GG is a constitutional provision as well, there is an argument that it may only act as a limit to freedom of research if it is detailed by specific laws. 408 Decision of 6 November 1989 – 8 TH 685/89.

Winter (2011), p. 460.

See Sendler (1990), p. 233-234.

See e.g. Ruffert (2011), Art. 13 GRCh para. 8.

Kingreen(2011), Art. 52 GRCh para. 67.

Ginzky (2012), p. 450.

Bethge(2007) para. 223 with reference to other positions.

Options and Proposals for the International Governance of Geoengineering Other general provisions relevant to geoengineering techniques include rights to information and to participation, in particular EU and German legislation implementing the Aarhus Convention such as Directive 2003/4/EC on the right of access to environmental information and Directive 2003/35/EC on the participation of the public in certain environmental decisionmaking processes. Of particular interest for German law is the recent decision of the ECJ in the Trianel case 409, which allowed non-governmental organisations a wide access to justice in matters of EU environmental law and rejected the narrow interpretation implemented in the Federal Environmental Remedies Act.

5.2.3 Stratospheric aerosol injection The injection of sulfate aerosols into the stratosphere above state territory is subject to state jurisdiction, as the stratosphere is part of national territory. Thus, German law and possibly EU law are applicable.

The injection of sulfate aerosols into the stratosphere may be relevant to legislation protecting the ozone layer as well as legislation protection the atmosphere in general.

The core legislation on the protection of the ozone layer, Regulation 1005/2009/EC, does not include SO2 as a regulated substance. Thus, EU law on the protection of the ozone layer does not prohibit sulfate aerosol injection, nor does German law supplementing this part of EU law.

Relevant legislation protecting the atmosphere in general may consist of legislation on the improvement of air quality, on the protection of the environment and human health against certain emissions, and on regulation of pollution from installations.

Improvement of air quality is primarily intended by Directive 2008/50/EC on ambient air quality and cleaner air for Europe, which has been transposed into German law by the 39th Federal Immission Control Ordinance. It contains immission limit values for the protection of human health as well as information and alert thresholds for sulphur dioxide (SO2). 410 However, Article 2 (1) defines ‘ambient air’ as outdoor air in the troposphere, thus excluding exposition in the stratosphere.

Directive 2001/81/EC on national emission ceiling for certain atmospheric pollutants aims at limiting emissions of acidifying and eutrophying pollutants and ozone precursors in order to protect the environment and human health. It was adopted following the Gothenburg Protocol to the UNECE Convention on long-range transboundary air pollution to abate acidification, eutrophication and ground-level ozone. By 2010 at the latest, Member States shall limit their annual emissions inter alia of SO2 to amounts not greater than the emission cealing of Annex I, which for Germany is 520 kilotonnes of SO2, through national programmes. The Directive does not cover emissions from international maritime traffic and aircraft emissions beyond the landing and take-off cycle. Concerning sulfate injection from airplanes, it is not clear whether they have to be considered ‘aircraft emissions’. Arguably only the usual emissions resulting from aircraft traffic, not intended emissions by means of planes, shall be excluded, in line with the principle that exceptions must be interpreted in a narrow sense. Accordingly, the injection of large amounts of sulfate aerosols into the stratosphere above Member States´ territory falls into the scope of the Directive. It might be argued that such an activity would be contrary to ECJ, C-115/09.

See Annex XI and Annex XII.



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