Planning for Mining Requirements

Mining law is explicitly linked to spatial planning law in section 48(2) second sentence BBergG (BBergG – Federal Mining Act), and the latter is of major significance for operating plan approvals under mining law. The INSTRO reform report calls for greater consideration of spatial planning concerns – rightly so? This leads to the fundamental question: To what extent should and may raw material extraction be planned at all in view of the climate protection requirements and the pending implementation of the EU Building Efficiency Directive, which is currently under revision? This article is the author’s second written statement of position for the expert hearing at the Federal Ministry of Economics and Climate Change on 13th March 2023 in advance of the planned reform of the BBergG.

1  Demand for reform: a planned economy for raw material requirements based on quantity?

1.1  Raw materials law as planning law

Raw materials law is also planning law. But to what extent? Important predeterminations on the extraction of raw materials are made at the planning level even today. The underlying statements in this regard are contained in federal spatial planning law, which impacts the approval of mining projects pursuant to section § 48 para 2 sentence 2 BBergG (BBergG – Federal Mining Act) parallel to the system of the Spatial Planning Act (ROG): spatial planning goals must be given due consideration, and the principles and other requirements of spatial planning not mentioned in § 48 para 2 sentence 2 BBergG must be taken into account (section 4 ROG).

1.2  Proposal for raw material requirements planning

The INSTRO reform proposal foresees the extension of underground spatial planning, which is considered to have been prioritised with the above-mentioned modification of mining law norms pursuant to the Act on the Modification of Spatial Planning Regulations (1) as promised in the coalition agreement of the previous Grand Coalition – to seek “fundamental principles for underground spatial planning”, although there is no mention thereof in the ROG – and to clarify explicitly this possibility (2).

Furthermore, this reform proposal aims to lay the foundation for raw material requirements planning. Informally, it is intended for raw materials that are of significance across regional borders. The objective of the raw materials dialogues is the creation of a federal raw materials concept. Raw material dialogues for regionally significant raw materials would be initiated at the state level and lead to state raw material concepts. It is necessary to create a formal raw material requirements planning in this sector in which “the existing regional spatial planning is to be expanded into an active requirements planning moderating all regionally sought and consumed raw materials (free mining, natural and landowner mineral deposits)…. A quantitative requirements planning – based on demographic and economic development and including substitution by secondary raw materials – subject to compulsory mining monitoring is foreseen for regional planning. Supply periods for the demarcation of excavation areas of 20 years for loose-rock raw materials and 35 years for solid-rock raw materials, coupled with an update obligation, are considered practicable. The definition of priority areas for which it has been determined that they also have the effect of designated zones pursuant to § 7 para 3 sentence 2 no. 3 ROG are a means by which single raw material extraction areas are declared incompatible with spatial planning and cannot be mined (plot-specific designations).”(3)

1.3  Difficulties of long-term planning owing to current events and climate protection

But can supply periods of 20 or 35 years be reliably calculated? Current circumstances demonstrate how the demand for raw materials can suddenly shift owing to a grave event such as the Russia-Ukraine war (Figure 1). While first thoughts are of oil, gas and hard coal, the same is true of rare earths and lithium; a large European deposit of the latter raw material, which is indispensable for the production of lithium-ion batteries and thus for the mobility revolution, is presumed to be located in eastern Ukraine (4).

It has therefore become all the more urgent to mine lithium in Germany (insofar as available) as well as other raw materials that can be used as a “bargaining chip” for its procurement from abroad or whose supply to other countries creates in any case a climate of international trust that is generally fundamental for climate protection (5) and that is the essential prerequisite for the exchange of raw materials for climate protection such as lithium. This exchange is the basis for the realisation of the climate protection requirement established by the Federal Constitutional Court (BVerfG) in its climate decision based on Article 20a GG (GG – Basic Law) (6) and is simultaneously an essential element of climate protection since without these raw materials the measures for the necessary CO₂ reductions – such as the dissemination of e-mobility and the expansion of green electricity – cannot be achieved (7). This is also evidenced by the chancellor’s trip to Latin America and to the lithium states Argentina and Chile in January 2023.

All the more reason to have the flexibility to extract these raw materials that are fundamental for climate protection, either directly or indirectly, and to be able to increase the extracted quantities if this becomes necessary.

The INSTRO reform proposal wants to limit formal requirements planning to regionally demanded and consumed raw materials and to begin with the groups of gravel and sand – including special gravel/sand – and natural stone (crushed natural stone). In this sense, the raw materials are at first glance seemingly less relevant for climate protection. However, they may well be relevant insofar as they also include building materials that are used (among other purposes) for wind farms and energy-saving buildings. For the latter, comprehensive improvements are planned in the reform of the EU Building Efficiency Directive (Council proposal of 25 October 2022): zero-emission buildings by 2030 for new buildings and by 2050 for existing buildings.

In any case, formal requirements planning according to the INSTRO reform proposal is extremely limited. On the other hand, it should have a very strong impact, namely, owing to its binding effect for approval law that governs the project, be it mining law, excavation law, nature conservation law, water law or construction law.(8) But even in the sectors covered by the reform, it is very difficult to estimate the exact need over a period of 20 or 35 years. It is also difficult to predict how high the demand for gravel, sand and natural stone will be, considering that demographic development is equally difficult to project. The comprehensive building restoration projects that are imminent point to a significant increase in demand.

Irrespective of this, a long lead time is required even today before a project is approved. This lead time would increase considerably if the spatial planning processes on which approval is based had yet to be carried out or required amendment – e. g., the designation of priority or reserved areas for raw material extraction pursuant to § 7 para 3 ROG or, conversely, the cancellation of priority areas that declares separate raw material extraction areas incompatible with spatial planning on a plot-by-plot basis, as presumed in the INSTRO reform proposal. In view of these difficulties, (formal) raw material requirements planning in the sector of raw materials relevant to climate protection violates the climate protection requirement pursuant to Article 20a GG. And even informal requirements planning must not lead to significant delays and should therefore be left out of consideration.

1.4  Necessity because of inclusion of secondary raw materials?

Is a different assessment required because of a greater use of secondary raw materials? Replacing the primary raw materials economy as far as possible with one based on secondary raw materials is essential for climate protection as this step significantly reduces CO₂ emissions because the extraction and processing of primary raw materials are no longer necessary (Figure 2). This transition cannot be insignificant for federal mining law. Whenever there is an issue of securing the supply of raw materials, the extent to which secondary raw materials are available is also relevant. Consequently, it is no longer adequate to count solely primary raw materials as was previously the case under the purpose statement of § 1 no. 1 BBergG and the raw materials protection provision of § 48 para 1 sentence 2 BBergG; secondary raw materials must also be included.(9)

In its climate decision, the Federal Constitutional Court mentions first the substantial transformation of products (10). The Green Deal (11), the EU Action Plan for the Circular Economy (12), the EU climate package “Fit for 55”(13) and the coalition agreement of the present German government (14) also aim at the shift from a primary to a secondary raw materials economy (15). Measures to implement this transition are also possible on a broad scale, e. g., by establishing requirements for the use of secondary raw materials that result for climate protection reasons in lawful facilities for the use of primary raw materials being rendered inoperable or requiring complex retrofitting. In view of the requirements of the climate decision of the Federal Constitutional Court, such measures would be covered by fundamental constitutional rights, even if CO₂-relevant activities continue to enjoy the protection of these fundamental constitutional rights; the relative weight of the climate protection requirement in the assessment process continues to rise as climate change progresses (16).

However, this does not result in any specific targets. The extent to which a secondary raw materials economy can be established is therefore uncertain, and predicting the demand for primary raw materials when secondary raw materials are prioritised becomes even more difficult. All depends on possible substitution, the recoverable quantities of secondary raw materials and the required quantities of raw materials overall.

1.5  Conclusions

Practical considerations make it extraordinarily difficult to plan raw material requirements. Consequently, the implementation of any such procedure must be rejected, especially when viewed in the setting of the required inclusion of secondary raw materials and the imminent and comprehensive building restorations, and threatens to do more harm than good to climate protection. The INSTRO reform proposal also wants to begin by testing the concept of requirements planning during practical trials and to refine it further in view of the results; only on this basis could a broad implementation be pursued (17). It will then have to be seen what consequences this will have for climate protection. In addition, an area-by-area trial cannot fully demonstrate the extent to which current developments will rapidly increase the demand for raw materials.

2  Spatial Planning Act

2.1  Opposing key points

Materially, too, a level of tension can be seen between spatial planning and mining law. According to the INSTRO reform proposal, this dichotomy arises from the raw materials principle of § 2 para 2 no. 4 sentence 4 ROG that, on the one hand, defines the exploration and extraction of raw materials as a desirable goal and, on the other hand, the principle of section § 2 para 2 no. 1 sentence 2 ROG that requires the sustainable protection of resources (18). Extraction and protection appear to be contrary to each other, and this disjunct must be overcome by weighing these principles against each other.

The main problem, however, is seen in the fact that mining licences constitute binding decisions that per se leave no room for a weighing of the circumstances of any given case so that principles of spatial planning cannot be raised as objections to mining law decisions, especially during plan approval procedures pursuant to § 57a BBergG.(19)

It is true that the planning approval decision under mining law does not constitute an expression of a classic planning approval decision in such a way that there would be room for the assessment of planning circumstances. Nevertheless, the various legal positions are compared and weighed against one another so that it can be determined whether the prerequisites for approval of a mining project have been met. The procedure requires a comprehensive comparison of the interests at stake (20), including the principles of spatial planning. Insofar as these principles contradict each other, a compromise can be found. Moreover, there must be a closer examination of what the aforementioned provisions of the ROG actually intend.

2.2  Statements on raw material extraction

According to § 2 para 2 no. 4 sentence 4 ROG, one of the principles of spatial planning is the creation of the spatial conditions for the prudent securing and the orderly exploration and extraction of site-bound raw materials. This builds a bridge to § 1 no. 1 BBergG and its goal of securing the supply of raw materials. This orientation is in this sense also a component of spatial planning, albeit only as a principle and as one element that is weighed against other factors. However, the securing of raw materials is not (any longer) to be seen in absolute terms within the framework of the BBergG, but must above all be weighed against ecological concerns in line with the principle of sustainability (21), which must also be observed within the framework of the ROG (Figure 3).

2.3  Expression of sustainability

In general, § 2 para 2 no. 6 sentence 2 ROG stipulates that economic and social uses of the space must be designed in consideration of its ecological functions. This provision is an expression of the triple objectives of sustainable development, which seeks to give equal weight to economic, ecological and social concerns and to achieve a balance among them (22). The ROG explicitly adds that natural resources must be used sparingly and carefully. This gives concrete form to the principle of sustainable protection of raw materials pursuant to § 2 para 2 no. 1 sentence 2 ROG.

Sparing and careful use helps to preserve raw materials for future generations – parallel to the prudent and rational use of natural resources pursuant to Art. 191 para 13. Bullet point Treaty on the Functioning of the European Union (AEUV): With regard to mineral resources, this implies economical extraction in awareness of their limited nature, which leads to the search for substitute materials, especially in the course of material cycles, that make the exploitation of natural resources largely unnecessary and protect them for future generations (23).

In other words, extraction and protection of raw materials are inextricably linked. In consequence, raw material extraction areas should be tailored in such a way that nature is affected as little as possible, but also that deposits that can be used intensively should be mined first so that existing reserves that are difficult to access today are extracted only in small quantities; nevertheless, they are treated as deposits and are available to future generations solely to a limited extent. Raw materials are urgently needed above all when they become scarce worldwide. In view of globalisation and the diverse trade relations, an international perspective is required (24).

The sparing use of natural resources can take the form that raw material projects are designed to preserve forests and other landscape elements as far as possible or are exploited very carefully. Intensive protection has been established under EU law for Flora-Fauna-Habitat (FFH) zones anyway and transposed into national law above all in the FFH impact assessment pursuant to § 34 Federal Nature Conservation Act (BNatSchG), which also covers raw material projects located next to habitat protection zones if the projects may affect these zones (25). In this respect, too, a bridge can be built to § 1 no. 1 BBergG, which prescribes the sparing and careful use of land. This reference to the land is viewed as a starting point for sustainability-oriented management.

The raw material extraction areas should generally be designed so that prudent use is possible in compliance with the requirement of sparing utilisation of natural resources and so that adjacent sensitive areas are not unduly stressed by the generation of dust or the lowering of groundwater. However, spatial planning is about spatial classification and not about concrete specifications and conditions for raw material extraction operations, which are set forth during the operating plan procedure and the approval decision. The ROG contains provisions governing solely the former.

More generally, ROG further requires in § 2 para 2 no. 6 sentence 7 ROG that the spatial requirements of climate protection must be given due consideration. This is achieved both through measures that mitigate climate change and those that serve the adaptation to climate change. The tangible consequences are the requirements in § 2 para 2 no. 6 sentence 8 ROG for the creation of the spatial conditions for the expansion of renewable energies, the economical use of energy and the preservation and development of natural sinks for substances harmful to the climate and the storage of such substances.

2.4  Consequences for raw material projects

Above-ground spatial planning is a very good means of ensuring sustainable development in which economic, ecological and social concerns are balanced against one another in an overarching planning process that includes mining interests. § 48 para 2 sentence 2 BBergG now specifically ensures that spatial planning objectives are applied to mining law. In other respects, i. e., for spatial planning principles, § 4 ROG applies. In this sense, raw material and environmental concerns can also be balanced even now. This balance can be continued and realised in the specific case of approval of raw material projects. Insofar as the predeterminations in spatial planning constitute objectives, however, the approval decisions pursuant to mining law in accordance with § 48 para 2 sentence 2 BBergG must be observed. In all other respects, their consideration will be in line with the nature of the aforementioned principles.

2.5  Extension to underground spatial planning

Underground spatial planning should better emphasise where and how mineral resources can be extracted cheaply and with as little environmental impact and risk as possible. Pilot tests and models have been in place for some time (27). In accordance with the principle of sustainable development, the extent to which economic, ecological and social concerns can be reconciled can be explored at the level of underground spatial planning and not only for the Earth’s surface (28.)

Still, the ROG does not specifically refer to underground spatial planning, even though it is regarded as established by the regulation of § 48 para 2 BBergG (29). One approach is to conduct underground spatial planning within the sense of spatial planning law and merely to extend the scope of above-ground spatial planning in accordance with ROG. In this sense, a provision that also encompasses underground spatial planning and consideration is proposed (30).

The current spatial planning is already potentially depth-effective and extendable to underground projects (31). The material spatial significance of the ROG is open; no distinction is made between above- and below-ground planning (32). Nonetheless, the ROG was conceived for a two-dimensional perspective, not a three-dimensional one (33). However, underground spatial planning as an investigative method of underground spatial exploration with the consequence that impacts on the subsurface and subsequently on groundwater can be recognised at an early stage and taken into account in the further conception of mining projects is also applicable in the operating plan procedure under mining law. To this extent, it can be used in practical operation even without being explicitly enshrined in the ROG (34).

Furthermore, underground spatial planning allows the prior harmonisation of the extraction of several raw materials in a region. Such a focused view is alien to the ROG, however. Otherwise, this is a matter for the mining law licence. At this level, however, this cannot be reviewed as a general precaution, but only when there is a concrete application. At this time, the review also extends to the application that was submitted first, and the concerns about the extraction of other mineral resources must also be included in this review (35).

The protection of deposits constitutes independent grounds for refusal pursuant to § 11 no. 9 BBergG during review of a licence, but solely with regard to the impairment of other mineral resources whose protection is in the public interest – not, however, for the arbitration of differing and conflicting mining intentions. Underground spatial planning, on the other hand, can serve as an advance arbitrator in such cases. It becomes possible, right from the planning stage and in consideration of water protection concerns, to determine which mineral resource should be extracted first or even exclusively in a particular region. Otherwise, this is possible solely at the level of approval of the general operating plan under mining law. Mining licences must generally be granted without a closer examination of water protection concerns (36). These concerns may only not preclude, as an insoluble obstacle, any grant of approval for a raw material project with the consequence that the mining licence is void of content (37).

2.6  Decisive importance for regional planning as well

The above principles characterise spatial planning and with it state planning. To be sure, there are state planning laws. However, the overriding principles are based on the federal ROG unless the states have adopted deviating regulations, which has been possible since the federalism reform in accordance with Article 72 para 3 no. 4 GG. Otherwise, the states are bound by the provisions governing conditions, duties and guiding principles of spatial planning pursuant to ROG. On this basis, priority, reserved and suitable areas (§7 para 3 nos. 1 to 3 ROG) as well as exclusion areas can be defined to favour or prevent raw material extraction. Companies place great value on the identification of these priority, reserved and suitability areas as it raises their hopes for a positive approval decision. A contrary determination is also possible, however, especially in the case of raw material requirements planning in line with the INSTRO reform proposal (38). In any case, such a determination is not a mandatory prerequisite. The only restriction is that there must not be any prior exclusion of mining use as an objective of the state planning since such a goal must be taken into account in the approval decision pursuant to § 48 para 2 sentence 2 BBergG.

In the absence of a legal provision, however, the general spatial planning provision in § 4 para 1 no. 1 ROG applies solely to public bodies and equivalent private law entities, but not to plans and measures by private parties, which in the case of official approval of a plan pursuant, i. e., to § 48 para 2 sentence 2 BBergG are subject to the target obligation of § 4 para 1 no. 3 ROG and otherwise solely to the obligation to consider – rather than comply with – the objectives and principles of § 4 para 2 ROG (39). In effect, private sector projects must comply with the predeterminations of the state planning. This is at the same time the yardstick for the approval decision for the specific project, depending on whether it is an objective or a principle or other requirement of state planning.

3  Significance for raw material projects

3.1  Divergence to date

The strict observance of spatial planning objectives has been stipulated in § 48 para 2 sentence 2 BBergG for projects under mining law only since the 18th legislative period, when the Act Amending Spatial Planning Regulations was adopted (40). Previously, aspects of spatial planning were generally considered to be a public concern that had to be assessed pursuant to § 48 para 2 sentence 1 BBergG (41). Since the amendment, there is a binding requirement to observe the objectives of spatial planning. They do not present merely possible discretionary action or solely weighting factors during assessments (42); instead, they must be strictly observed.

In contrast, principles and other requirements of spatial planning are not mentioned here and must therefore be taken into account solely in accordance with § 4 para 1 ROG so that they can be dismissed from consideration during deliberations (43) – in contrast to spatial planning objectives.

3.2  Simple obligation as well for consideration of targets – e.g., because of the importance of raw materials for climate protection

However, this lacks the flexibility to realise projects that do not meet the objectives of spatial planning even if they are of material importance for climate protection, e. g., the extraction of lithium for batteries as part of the drive toward electromobility (Figure 4). The necessary extraction of these raw materials is part of the climate protection imperative derived from Article 20a GG (44), which cannot be realised without the essential resources, e. g., through a mobility turnaround as specifically addressed, although not stipulated as binding, by the Federal Constitutional Court in its climate decision (45). Article 20a GG includes an imperative not to prohibit the possibility of mining raw materials that are indispensable for the realisation of projects for climate protection.

To this extent, the obligation to observe spatial planning objectives should be relaxed and § 48 para 2 sentence 2 BBergG and § 4 para 1 ROG should be interpreted in conformity with the constitution so that, in the case of an urgent need for raw materials for climate protection, a deviation from the strict compliance obligation must be possible in favour of mining projects serving such a need by weighing the spatial planning objectives in question against the need for the raw material.

4  Conclusion

Raw material requirements planning must be rejected – both formally and informally. It is too difficult to project the demand for mineral resources in the long term, especially against the background of the raw materials that are directly and indirectly essential for climate protection and the necessary inclusion of secondary raw materials. The provisions for the supply of raw materials contained in the ROG to date allow their extraction for today’s needs in conjunction with their protection for future generations. This must be weighed on a case-by-case basis, which is also possible within the framework of the existing authorisation regime under mining law. If the extraction of raw materials for climate protection is to be assured, spatial planning objectives should in any case be given only due regard in light of the climate protection requirement of Article 20a GG and, contrary to § 48 para 2 sentence 2 BBergG, their observation should not be mandatory.