Definition and significance of environmental assessment
The environmental assessment is a key component of environmental law and comprises various legally regulated procedures used to systematically identify, describe, and evaluate the environmental impacts of planned projects, programs, and plans. The objective of the environmental assessment is to detect negative environmental impacts as early as possible and to consider them in the decision-making process. An environmental assessment thus serves preventive environmental protection and sustainable development.
Legal foundations of environmental assessment
European legal requirements
The obligation to conduct environmental assessments is largely shaped by European directives. Key regulations, in particular, arise from Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (“EIA Directive”) as well as Directive 2001/42/EC on the assessment of the effects of certain plans and programs on the environment (“SEA Directive”). These requirements must be transposed into the national legal systems of the member states, including German law.
German law
Environmental Impact Assessment (EIA)
In German law, the Environmental Impact Assessment (EIA) is comprehensively regulated as a central instrument of environmental assessment in the Environmental Impact Assessment Act (UVPG). The EIA is a dependent, internal administrative procedural element that applies when certain projects (e.g., major construction projects, infrastructure projects, facilities under the Federal Immission Control Act) require approval. The thresholds and project categories stipulated in the UVPG determine for which projects an EIA obligation exists.
Strategic Environmental Assessment (SEA)
The Strategic Environmental Assessment (SEA) is also regulated in the UVPG and refers to environmental assessments during the preparation of plans and programs, particularly in spatial and landscape planning. The aim of SEA is to comprehensively evaluate environmental impacts already at the planning level.
Other national regulations
Further regulations requiring environmental assessments in specialized areas of law can be found, for example, in the Building Code (BauGB) for the assessment of zoning plans, in the Water Resources Act (WHG), and in the Act on the Evaluation and Control of Noise.
Process and content of the environmental assessment
Procedural steps
The environmental assessment is legally divided into several procedural steps:
- Preliminary individual assessment (Screening): It is examined whether an environmental assessment is required (e.g., for projects that fall below certain thresholds).
- Definition of the scope of investigation (Scoping): The scope and level of detail of the environmental assessment are determined.
- Identification and description of environmental impacts: Analysis of the likely significant effects on humans, animals, plants, soil, water, air, climate, landscape, cultural and material assets.
- Environmental report/EIA report: Documentation of determined environmental impacts and possible alternatives as well as measures to avoid, mitigate, or offset negative effects.
- Involvement of authorities and the public: Early information, participation, and public display of environmental documents.
- Consideration in the decision-making process: The results of the environmental assessment must be mandatorily considered in the approval decision.
- Post-monitoring obligations: For certain projects, monitoring of the actual environmental impacts (environmental monitoring) may become necessary.
Substantive requirements
The legal framework stipulates that, among other things, the following aspects must be considered in the environmental assessment:
- Impacts on human health, flora, fauna, and biodiversity
- Impacts on water, soil, air, climate, and landscape
- Interactions between individual environmental assets
- Impacts on cultural and material assets
Both direct and indirect, secondary, cumulative, short-, medium- and long-term, permanent and temporary, positive and negative impacts must be included.
Environmental assessment and participation rights
A key element of the environmental assessment is the participation of the public (§ 18 et seq. UVPG) and the authorities concerned. The participation rights are comprehensively structured in accordance with the Aarhus Convention, ensuring effective access to information and opportunities to comment. The results of the environmental assessment and the consideration of statements must be published and documented.
Legal consequences of breaches of environmental assessment obligations
The failure to carry out an environmental assessment or errors in conducting such an assessment can have significant legal consequences. These include, among others:
- The annulment of project approval by court judgments
- Subsequent completion or supplementation of the environmental assessment in court proceedings (remediation)
- Delays and additional costs for project developers
- Fines or criminal sanctions in particularly serious cases
Relationship to other assessment procedures
The environmental assessment must be distinguished from other specific assessment procedures, such as the FFH Impact Assessment under Section 34 of the Federal Nature Conservation Act (BNatSchG) or species protection assessments. Nevertheless, substantive and procedural interlinking is provided by law, so that results from other assessments are incorporated into the environmental assessment.
International aspects
Beyond the EU Directives, there are international obligations on environmental assessment, particularly within the framework of the Espoo Convention (Convention on Environmental Impact Assessment in a Transboundary Context) and from international treaties for the protection of nature and the environment.
Summary
The environmental assessment is a statutory, multi-stage examination procedure that is an integral part of numerous administrative decisions regarding environmentally relevant measures. It serves preventive environmental protection and transparency in the decision-making process by identifying, documenting, and making public the environmental impacts of projects and plans at an early stage. Compliance with legal requirements for environmental assessment is essential for the legality of environmentally relevant projects and for the exercise of participation rights.
Note: Further information and the latest statutory texts can be found, among others, in the Environmental Impact Assessment Act (UVPG) and on the websites of the relevant environmental authorities.
Frequently asked questions
Who is required under German law to carry out an environmental assessment?
The obligation to carry out an environmental assessment in Germany arises primarily from the Environmental Impact Assessment Act (UVPG) as well as other specialized legal provisions, for example in the Building Code (BauGB) or the Water Resources Act (WHG). The obligation generally lies with the project developer, i.e., the individual or legal entity planning and intending to implement a particular project, plan, or program. Typical project developers include municipalities, state authorities, companies, or even private individuals, provided they initiate projects requiring approval. What is decisive is whether the project falls within the scope of the UVPG or relevant specialized legislation. In many cases, a formal notification or application for approval must be submitted to the relevant authority (e.g., environmental office or building authority) in advance of the environmental assessment. The authority then checks whether an environmental assessment is required and monitors its correct implementation during the further process.
To what extent does the environmental assessment create legal obligations and binding effects?
An environmental assessment generates significant legal effects for the project. On the one hand, evidence must be provided that all environmental impacts have been comprehensively and correctly assessed. The results of the environmental assessment (so-called environmental report in zoning plan procedures or EIA report for approvals) are mandatory in the approval procedure. Authorities are obliged to include all relevant environmental impacts in their decision. If significant environmental impacts are determined, this may lead to the denial of approval, the imposition of conditions, compensation measures, or adjustments to the project. Procedural errors, such as failure to conduct or errors in the environmental assessment, can be challenged by affected parties and recognized environmental associations in court, potentially resulting in the revocation of the permit.
Which procedural steps does the UVPG prescribe as mandatory for an environmental assessment?
The UVPG defines the sequence of the environmental assessment in several legally prescribed steps: First is the preliminary individual assessment (Screening) to determine whether an environmental assessment is necessary. Next is the definition of the scope of investigation (Scoping), specifying which impacts and protected goods must be examined. Afterwards, the documentation of the environmental impacts (environmental report or EIA report) must be prepared. The public and the authorities concerned are involved (public display, participation, hearing). Finally, the competent authority evaluates the environmental impacts and considers the results in the approval or other decisions. Each of these procedural steps is detailed in the UVPG, and non-compliance can be legally challenged.
What are the legal consequences of a flawed or omitted environmental assessment?
If there are procedural errors in the environmental assessment process – for example, due to inadequate identification or evaluation of environmental impacts, incorrect public participation, or failure to consider the results in the approval procedure – this can have significant legal consequences. In most cases, it is possible to file an objection or bring an action before the administrative courts against the issued approval. In particular, environmental associations have a right of appeal under Section 2 of the Environmental Remedies Act (UmwRG) to challenge procedural errors. Where an environmental assessment is entirely omitted, the administrative act is generally unlawful and must be annulled. Affected measures may then be suspended until the environmental assessment is subsequently carried out.
To what extent are the results of the environmental assessment legally binding on authorities and project developers?
The results of the environmental assessment are binding for decision-making authorities, as they must be compulsorily incorporated in the weighing and decision on the admissibility of the project. They must evaluate and document the environmental impacts. For the project developer, this means complying with the authority’s requirements and any conditions aimed at avoiding, reducing, or compensating environmental impacts. Failure to consider or insufficiently address the assessment results can render the approval open to challenge and lead to judicial annulment.
Which environmental assets are legally to be included in the environmental assessment?
According to statutory provisions, in particular Section 2 UVPG, all relevant environmental assets must be examined in the environmental assessment. These include humans (especially human health), animals, plants, biological diversity, soil, water, air, climate, landscape, cultural and other material assets, as well as their interactions. The legal obligation to consider these environmental assets exists regardless of the type of project and must be thoroughly documented and evaluated as part of the environmental assessment.
Which legal remedies are available to affected parties and environmental organizations against the results of the environmental assessment?
Affected parties whose rights may be infringed by the project (e.g., neighbors), as well as recognized environmental organizations, are entitled to lodge legal remedies against environmentally relevant approvals. The Environmental Remedies Act (UmwRG) grants environmental organizations extended rights to challenge decisions made in breach of environmental procedural requirements, especially of the environmental assessment. Affected parties can also assert that the environmental assessment was incorrectly carried out or was not conducted at all, by way of objection or legal action. In both cases, this may lead to the annulment or at least suspension of the approval and to the subsequent proper conduct of the environmental assessment.
