Year:    2008

Author:    Glaser, Andreas

Die Verwaltung, Vol. 41 (2008), Iss. 4 : pp. 483–510

Abstract

A large number of municipalities are currently involved in the areas of energy supply and waste disposal. Lately, they have been expanding their sphere of activity both as to subject matter and territory. These municipalities cite environmental protection in general and climate protection in particular as justifications for connecting to and using public, long-distance heating systems and for disposing of their waste outside of their boundaries. Environmental protection thus serves as a catalyst for the expansion of local government activity. By pursuing this course, however, municipalities potentially violate the constitutional guarantee of local self-government, contained in Article 28, section 2, subsection 1 of the German Federal Constitution (Grundgesetz – GG), and the basic policy goal of environmental protection, contained in Article 20a of the GG. The relevant constitutional rule for resolving this conflict is contained in Article 28, section 2, subsection 1 of the GG. This provision confines local government authority to local affairs. The conflicts involving public, long-distance heating systems as a means of furthering regional climate protection and non-local waste disposal activities, though, can be resolved only on the basis of statutory local-government regulations issued by the German federal states (Länder). If local government is not duly authorized by these provisions to pursue the goal of climate protection or to engage in economic activity outside their own local territory, any such activities are unlawful from the outset. The interpretation of local government regulations which legitimate any such activities has to take into account the standard provided by Article 28, section 2, subsection 1 of the GG. Consequently, municipalities are, among other things, always restricted to exercising their authority in the area of local matters; and, at a minimum, they must take into due consideration the interests of affected, neighbouring municipalities. The legislatures of the Länder cannot arbitrarily expand local governments' functions in the area of environmental protection by citing Article 20a of the GG as a justification.