B. Air Pollution Regulation of Vehicle Manufacturers in Germany
The Basic Law (Grundgesetz) divides authority for air pollution control between the national government and the sixteen federal states (Länder).[42] Under this arrangement, the national government has adopted substantive standards and licensing procedures to control emissions from industrial facilities, and the Länder bear sole responsibility for implementation and enforcement, an arrangement that is strikingly similar to practices under the U.S. Clean Air Act. There are important differences, however. First, the Grundgesetz does not allow the federal government to oversee or take over the Länder's functions.[43] Second, the federal government has no enforcement authority, and the Ministry for the Environment does not even have regional offices.[44] These two factors ensure that the Länder retain substantial discretion in the implementation of the federal statutes and regulations. Third, federal laws and regulations that the Länder must implement are subject to approval by the Bundesrat,[45] the upper house of Parliament whose members are ministers (commonly, they are environmental ministers) of the Länder. Thus, federal environmental regulations reflect broad consensus among the Länder.
Germany's main federal air quality legislation, the Federal Immissions
1. PERMITTING STANDARDS
The federal act provides two principal substantive requirements for licensed facilities. First, licensed facilities must not cause “harmful effects on the environment or other hazards, considerable disadvantages and considerable nuisance to the general public and the neighborhood.”[47] This provision, which is subject to a general proportionality principle that balances costs and benefits,[48] is most closely analogous to nuisance laws in the United States. One important difference is that German regulations translate this statutory standard into specific emission limits.
Second, “precautions [must be] taken to prevent harmful effects on the environment, in particular by such emission control measures as are appropriate according to the state of the art,”[49] which is loosely analogous to the BACT criterion in the U.S. NSPS standards. Both the U.S. and German standards require some balancing of costs and benefits.[50]
A region with particularly polluted air must adopt a clean air plan (Luftreinhalteplan),[51] and the Länder are authorized to impose additional measures in areas that need special protection.[52] The Luftreinhalteplan are similar to the SIPs required under the U.S. Clean Air Act, especially in nonattainment and PSD areas, except that the criteria are vague, they have no force of law, and they are required only in certain areas.[53]
The general statutory requirements are implemented through the federal Technical Instructions on Air Quality Control (Technische Anleitung zur Reinhaltung der Luft, or TA Luft), which provide more detailed requirements to control and disperse emissions from licensed facilities. Although TA Luft's provisions do not have the force of law, one court described them as “anticipatory expert testimony,” which apparently means that they prima facie give operational definition to the statutory standards.[54]
TA Luft contains four types of substantive standards:[55] criteria to determine the height of exhaust stacks;[56]immission (air quality) values (analogous to the U.S. NAAQS);[57] general technological requirements and emission limits,[58] including emission limits for VOC emissions;[59] and emission limits and control technologies for specified categories of industrial facilities,[60] including automobile assembly plant paint shops (like the U.S. NSPS standards).[61] Generally speaking, facilities that do not cause immissions to exceed the established values satisfy the statutory requirement not to cause
a. Stack Heights
TA Luft contains criteria to determine the minimum and maximum heights for exhaust stacks.[65] The evident purpose of these provisions is not to reduce emissions but to disperse emissions and thereby reduce local concentrations of pollutants. Control of VOC concentrations in the immediate neighborhood (which relates to both health protection and elimination of odors), not ozone control, is the primary object of these requirements.
b. Immission Values
The 1986 TA Luft established immission values to protect human health[66] and to protect against “considerable disadvantage and substantial impairment.”[67] Using detailed criteria in TA Luft, the licensing agency must ascertain the actual, existing immission value for each pollutant (“initial load”) and calculate the additional immission value that will result from the proposed facility, taking into account, for example, dispersion, weather conditions, nearby buildings, and terrain (“additional load”).[68] As a general rule, the licensing agency must deny a license to a facility whose total load (initial load plus additional load) exceeds the TA Luft immission value.[69] The regulations make an exception if the additional load does not exceed the TA Luft immission value by more than 1 percent, and if the licensee obtains enough offsets from other facilities to “reduce the immissions.”[70] The implication of this exception is that if immissions increase by less than 1 percent—which might be quite substantial in a polluted area— the agency must grant the license.
Because the 1986 TA Luft did not establish an immission value for ozone,[71] licensees whose facilities emit VOCs are subject to a slightly different procedure. In such cases the licensing agency must determine whether the proposed facility's VOC emissions should be considered “[health] hazards, considerable disadvantages, or substantial impairments for the general public or the neighborhood” based on “the state of science and general experience of life.”[72] To determine whether the health hazards, disadvantages, or impairments are “substantial,” the agency must consider whether the emissions create hazards to human health (which “are always substantial”); if not, the agency must consider the land uses
c. General Technological Requirements and VOC Emission Limits
TA Luft requires licensed facilities to have “emission control facilities corresponding to present state of [the art] technology.”[74] In addition, special attention must be paid to “reducing the amount of waste gas,” “optimizing processes,” and “optimizing start-up and shut off processes.”[75] The regulations also specify that VOC concentrations in the exhaust gas cannot exceed 20 mg/m3.[76] In other words, the first provision is designed to reduce total emissions, and the second is designed to reduce VOC concentrations in the exhaust gas.
d. VOC Emission Limits and Control Requirements for Paint Shops
TA Luft, much like the U.S. NSPS, contains additional regulations for specific categories of industrial facilities,[77] including automobile assembly plant paint shops.[78] The regulations assert that the emission standards and control requirements can by met by state-of-the-art technology,[79] as required by the federal act. The 1986 VOC standards establish VOC emission limits of 60 g/m2 of car body for nonmetallic paints and 120 g/m2 for metallic paints.[80] That is, the emission limits depend on the type of paint used and are proportional to the size and number of vehicles produced. In 1991 the Ministry for the Environment revised both of these limits to 35 g/m2, effective March 1, 1994.
The paint shop regulations also limit the VOC concentration in the exhaust gas from the dryers to 50 mg/m3. In addition, the Dynamisierungsklausel—essentially a less stringent BACT requirement—requires further reductions if new control technologies become available.[81] These various requirements must be specified in the license “for each individual source.”[82]
2. PERMITTING PROCEDURES
The BImSchG requires the licensing authority to give public notice of the project after it receives a permit application.[83] For new facilities, the agency must make public the permit application and any supporting documents
Members of the public have one month to review the permit application and supporting documents and another two weeks to make written objections. There is no provision for a public hearing. The licensing authority must seek the opinion of other regulatory agencies, and it must “discuss the arguments against the project with the applicant and those having raised them.”[86] Relative to the United States, the German licensing system is much less transparent to citizen groups, and much less subject to influence by interest groups, especially opposition groups.
The act does not specify a time limit in which the licensing agency must decide whether to issue a license for new facilities, although it provides that the agency must make a licensing decision for a modified facility within six months. That period can be extended for successive three-month periods “if the difficult nature of verification so requires.”[87]