Sustainable Raw Materials Production

Is the current Federal Mining Act sufficient to guarantee sustainable raw materials production – or does it need reforming to achieve this? The agreement signed by the parties that make up Germany’s “traffic-light coalition” seeks to align the Act more towards safeguarding sustainable raw materials extraction and maintaining environmental standards – while at the same time making things easier for domestic raw materials producers.

1  The Federal Mining Act as a raw materials law

Raw materials extraction is regulated in the Federal Mining Act (BBergG). The Act provides raw materials legislation. Can it then have an environmental content that meets the requirements for sustainable raw materials production? This question will inevitably arise against the background of the forthcoming reform of the Act. According to the Coalition Agreement the Federal Mining Act, which is the fundamental right to extract primary raw materials, is to be revised with a view to supporting the economy in safeguarding a sustainable supply of raw materials, facilitating the domestic extraction of natural resources and adopting a more environment-friendly policy in general (1). A proposal for reform was drawn up as part of the research project INSTRO – instruments for the environmentally-compatible management of raw materials production – which was commissioned by the Federal Environment Agency and the Federal Ministry of the Environment as part of the Environmental Research Plan and subsequently implemented between 2016 and 2018 under the aegis of the Eco-Institute (2). This INSTRO reform proposal seeks to amend the central purpose of § 1 of the BBergG, where raw materials production is still the dominant objective (3).

The Purpose of the Act as defined in § 1 of the BBergG simply reflects the objective necessities of the mining industry. These include, as expressed in Point 1, the location-specific nature of mining activities due to their relatedness to the geological deposits, the dynamic aspects of the raw materials extraction process that are associated with the unpredictable realities of the mineral deposits, the specific prerequisite that this creates for occupational safety and health protection, especially in the deep mining industry (Point 2), and surface damage that can occur in connection with the latter (Point 3) (4). The need to secure the supply of raw materials, as mentioned in §1 (1) of the BBergG, has an elementary economic and indeed social component, as is demonstrated by the impact of the war between Russia and Ukraine and the looming supply shortages and prices rises that are set to affect key commodity segments.

These objective necessities, combined with the macroeconomic importance of the mining industry, provide the basis for the special status that mining legislation has within the federal legal system (5). However, the principle that mining law takes precedence over basic law has not applied for some time, as clearly illustrated by the Garzweiler Decision of the Federal Constitutional Court (BVerfG) (6) with its derived implications for fundamental rights and equality of respect for environmental issues.

2  Incorporation of environmental protection and future trends

The implications for the environment and hence the ecological aspects of sustainability as a triad of the economy, the environment and social responsibility are in any case covered by § 1 (3) of the BBergG: their special and typical manifestations are located in surface damage (7). Going further, § 1 (3) of the BBergG refers to risks arising from mining activities to the life, health and properties of third parties. This aspect requires some environment-related realignment, especially since the record flash floods of July 2021 (Figure 1), all the more so if the duty of protection – which is a basic right – is to be met (8). Yet even before this German case law had extended its remit for the protection for human life and health to cover flood risk (9).

Environmental considerations therefore find themselves on a par again, just as sustainability would have it. By the same token, and as the flood precautions would confirm, we not only need to take the concerns of current generations into consideration but also have to protect the interests of those yet to come – this also being a key element of sustainability (10) and a mandatory requirement of the BVerfG where climate protection is concerned (11). Responsibility for the latter is explicitly stated in Article 20a (State Goal Resolution) of the Basic Law of the Federal Republic of Germany (GG), which implies that environmental protection measures should be put in place for the long term. Safeguards also have to be provided for raw materials extraction and for the management of its consequences.

In this way § 1 of the BBergG will assume a more ecologically minded position. The basis for this is sustainability, a principle that can be derived from the different elements of the aforesaid § 1 (12). The symbol for this is the equal status given to soil protection alongside that of deposits in § 1 (1) of the BBergG. This is the reason why a sustainability clause is being adopted (13) and is now to be extended to include climate protection.

3  Double significance of climate protection

While mining companies are clearly not liable for the CO₂ emissions that are produced by the power generating industry, for example, there is no reference in this regard to mining in the wording of § 114 of the BBergG (14). Even the effect of climate protection on the Purpose of the Act as outlined in § 1 (3) of the BBergG, which also extends to include liability for mining subsidence damage, does not go as far as this. However the dangers posed by the mining industry, and the risks arising for human life and health and the property of third parties, are of relevance and these are occurring with increasing frequency due to the rise in global warming. There is therefore a real need for more effective adaptation measures to be taken in response (15). If these prove to be inadequate mining damage liability will be called into question. This issue has now arisen because of the flood-water damage in the area of the opencast mines at Bergheim and Erftstadt (16). All the more reason therefore to ensure that climate-related changes are also taken into account when planning raw materials mining projects and the relevant aftercare measures and that flood protection measures are strengthened accordingly so that damage on this scale cannot take place at all.

It is therefore not just a matter of applying a general climate protection plan but rather of providing protection from the threats associated with the actual consequences of climate change insofar as these are exacerbated by mining activities. Conversely, the mining industry can help to mitigate the impacts of climate change by supplying the raw materials that are needed for climate protection initiatives, e. g., lithium for lithium-ion batteries for the mobility transition. Furthermore, the industry is able to extract those resources that can serve as “exchange currency” for imports of the raw materials that are needed for pushing forward with climate protection programmes, such as the swifter roll-out of eco-electricity with the construction, e. g., of wind turbines, solar power systems and transmission lines (Figure 2).

In this respect raw materials production can be viewed in an international light (17) and can be seen as a basis for global openness in that other nations can be supplied with the natural resources they need in order to help them play their part in meeting climate protection targets. Germany can set an example in this respect in that its climate protection efforts can serve as a model for other states (18) and encourage them to be more willing to provide the resources that are needed for climate actions. This is especially pertinent in the light of the Russia-Ukraine war – an event that is threatening to cut off vital sources of key raw materials, including those that are needed for climate protection purposes.

This twin context that is climate protection – namely in the shape of precautions against further global warming, including the global raw material exchange that is needed to achieve this, and the need to cushion the effects of climate change – also has to be taken into account when licensing new mining projects. This is what is required according to the interpretive central purpose as defined in § 1 of the BBergG.

4  Implications for Purpose of the Act as stated at § 1 of the BBergG

The central purpose can therefore be interpreted and applied sustainably and in a way that is both environment friendly and climate compatible. From this point of view the intended purpose of the raw material will no longer outweigh the INSTRO reform proposal. Environmental protection as an overriding issue, and as the INSTRO reform proposal is calling for (19), will happen without amendment simply because of the need for a strategic orientation towards sustainability, which is already laid down in § 1 of the BBergG and in any case is guaranteed by the State Goal Resolution as outlined in Article 20a of the Basic Law. The current wording of § 1 of the BBergG also contains some basic concepts for an interpretation and alignment of the climate protection imperative (20) to be derived from Article 20a of the Basic Law. It therefore requires at most some clarification of the wording so that the contents – which in any event have to be preserved – are presented in a more intelligible way.

5  Sustainable management of the planning -approval requirements

5.1  Framework

A key factor is that the ecological aspect of sustainability has been included in the review process for mine planning approval. From a formal viewpoint this is achieved by extending the environmental impact assessment to include mining projects along with the framework operating plan that is regularly part of the same process. Materially, the comprehensive assessment involved, as demonstrated by the Garzweiler ruling of BVerfG (21) and as is underlined by the INSTRO reform proposal (22), has been ensured for some time (24) by way of § 55 para. 1(1(3)) of the BBergG (23) in conjunction with § 1 para. 3 of the BBergG and by § 48 para. 2 of the BBergG, even if environment-related requirements are only partially referred-to, which is the reason why a fundamental change is being called for under the INSTRO reform proposal (25). A form of equal weighting therefore already exists. Raw materials security no longer has one-sided precedence, as will be explained in some detail below.

5.2  Extension of § 55 para.1 (1(3)) of the BBergG

According to § 55 para. 1 (1(3)) of the BBergG the necessary precautions have to be taken against risks to life, health and the protection of property, employees and third parties in the company. The BVerfG has explicitly recognised that when mining operations cause subsidence that lowers a piece of land to a level that can be reached by flood water at some future point in time this constitutes a danger to health that can be attributed to the mining industry (26).

Environmental considerations are therefore already included in the classic requirements for the approval of an operating plan according to § 55 of the BBergG and should provide wide-ranging, long-term protection against flood risk. However, § 55 para. 1(1(3)) of the BBergG does not differentiate in this regard between whether the risk in question can be attributed directly or indirectly to mining activity (27). The same does not apply, however, to the circumstances that caused the risk in the first place. With this provision the Federal Administrative Court considers that the risk to the life and health of third parties outside the workplace is fully covered. Precautionary measures must be taken not only against operational risks in the narrow sense but also against those risks and hazards that the mining company is only indirectly responsible for (28). Here the Federal Administrative Court applies the current standards, which include the construction of levees for a 200-year extreme flood event in accordance with the recommendations of the Conference of State Ministers for Regional Planning and Public Works. In real terms protection will be provided against a 500-year high-water event (29).

This illustrates the high standards that apply to preventive measures designed to protect against risk to life, health and, in the final analysis, material goods and property too. The authorities must ensure that “flood protection is provided according to latest engineering practice” (30). The latter is to be adapted to meet the threat level posed by the effects of climate change. This is just one example of the dynamic nature of mining legislation that the INSTRO reform proposal is calling for, namely through the introduction of basic obligations on the part of the mine operator (31).

While there is therefore no general climate protection requirement for the mining industry, nevertheless those climate-related effects that are exacerbated by mining activities have to be taken into consideration, such as intensified floods and high-water events that may not in fact be magnified by mining-related actions. The record flood of July 2021 provides us with a cautionary example and it is through this that the fundamental duty of protection is being strengthened and updated (32) – and this must ultimately be reflected in the application of § 55 para. 1(1(3)) of the BBergG (33).

5.3  § 55 para. 1(1(9)) of the BBergG as a dynamic after-effect clause

According to § 55 para. 1(1(9)) of the BBergG the approval of the operating plan ultimately depends on whether the exploration or extraction process is likely to produce any harmful effects. In the case of the Meggen judgment the Federal Administrative Court activated the public damage clause and imputed to it – without any prior obligation in the operating plan – the need to observe fundamental environmental requirements in the post-operational stage, in this case in respect of water management (Figure 3), in accordance with the polluter pays principle (34).

This also demonstrates the wider environmental framework, insofar as this is created by mining-relevant processes and circumstances, as well as the convergence with sustainability, which calls for the inclusion of future developments in order to safeguard the interests of the generations to come.

Climate protection can therefore be ignored no longer. Mine aftercare strategies should be designed to prevent harmful events on a general scale and in such a way as to take account of climate-related changes, whether they be predictable or occur randomly, and to prevent any resulting catastrophic outcomes – such as that which engulfed the communities of Bergheim and Erftstadt as a result of the record floods of July 2021, when entire houses were swept away, and this within the area of a former opencast mine that had clearly not been made sufficiently secure (35). Yet even this does not convey general responsibility for climate-related events, but rather merely imparts accountability for specifically mining-induced processes.

This illustrates how the public damage clause in § 55 para. 1(1(9)) of the BBergG can be exploited to good effect to deal with current events caused by climate change. It also shows the flexibility of the existing approval and aftercare provisions as laid down in the BBergG. Given the need for climate protection and the target of sustainable raw materials production these provisions can therefore retain their environmental remit and do not require further reform.

5.4  Comprehensive environmental framework provided for in § 48 para. 2 of the BBergG

•  48 para. 2(1) of the BBergG states that the authorities responsible for approving mine operating plans have the right to restrict or prohibit exploration or extraction activities if these conflict with overriding public interest. This is an additional approval requirement – supplementing § 55 para. 1 of the BBergG (36). It is widely acknowledged that all issues that are not dealt with in § 55 of the BBergG are to be incorporated in the mine planning approval process by way of § 48 para. 2(1) of the BBergG (37). There is to that effect also an extensive environmental assessment, though this can scarcely be inferred from the wording used in the standard. That is why there is an assumption of “case law”, which is something alien to German administrative law, in the INSTRO reform proposal, this creating unresolved legal issues that required unambiguous clarification in normative terms (38). This mainly has to do with the scope of § 48 para. 2 of the BBergG, whose wording is fairly open and therefore can be extended to include all operating plans (39), and with the question of the weighting of raw material issues. The decisive factor is that environmental matters have been fairly widely included in all this for several decades.

5.5  No (relative) precedence for raw material issues

One earlier problem was whether environmental issues were to be included on an equal footing, as required under the principle of sustainability. Under the terms of the raw materials security clause in § 48 para. 1(2) of the BBergG these considerations should in fact be subordinated to mining interests. While this clearly does not imply absolute precedence (40), nevertheless a relative distinction will still exist (41). Concerns have already been expressed in this respect about the Purpose of the Act as defined in § 1 of the BBergG (42) and about the constitutional obligations, which require equal consideration to be accorded to economic and ecological matters (43).

Environmental considerations would still have to be taken into account even if § 48 of the BBergG did not exist. This would in many cases entail the direct application of EU law. At all events environmental law must be able to act with the gravitas that is ascribed to it under EU law. This essentially means that a raw materials security clause cannot supersede environmental legislation because of the primacy of EU law.

Moreover, environmental laws are not regularly framed in such a way that they exclude mining activities. They therefore apply to all projects along with the recorded environmental impact. Generally speaking, there should be no blanket exemptions for a certain category of project. However, significant impairment must be excluded in the individual case, at least on the basis of objective circumstances (44). The European Court of Justice (ECJ), e. g., qualified the grazing of cattle and the application of fertilisers in the vicinity of Natura 2000 sites as “projects” that are not exempt and have to be included in the assessment process, according to Article 6 para. 3 of the Flora-Fauna-Habitat Directive (Habitats Directive) (45). This means that raw materials projects, even when they are important for climate protection purposes such as when lithium is being extracted, cannot intrinsically be excluded from habitat protection legislation.

A general extension therefore applies from the start for nature conservation legislation, namely in the shape of habitat protection laws, but also for pollution protection legislation and water law. In any case the latter is subject to independent audit and also has to be included directly in the approval decision. This latter process also examines the feasible possibility of flood protection, while any detailed implementation of these measures is incumbent upon the water authorities (46).

This also implies that environmental issues are not to be considered as subordinate to raw materials interests but are to be treated in their own legal context by virtue of a different normative determination. § 48 para. 2 of the BBergG provides a legal reference to the effect that environmental matters are not being revised under mining law. They are to be fully incorporated and assessed co-ordinately within the present legal framework.

In its Garzweiler ruling the BVerfG presented a comprehensive evaluation of the issues that seem to justify raw materials extraction along with the countervailing arguments – these pertaining not only to property protection but also to environmental conservation and, most important of all, to water protection (47). The Court did not attempt to rank or prioritise the different issues (48). In fact it presented an open-ended ruling and did so in terms of the judicial level at which a project can still be rejected, though this would not be at the main operating plan level but rather at the general operating plan stage. This implies, however, that interests that conflict with the raw material extraction project must also be capable of prevailing in the final analysis. A project can therefore be refused on this basis (49). These interests will not in any case be overridden a priori by raw material issues but must also be rendered capable of delivering a negative result.

On the basis of this approach there seems little likelihood of raw material considerations being accorded any general kind of relative preference. Ultimately the two opposing corners are on equally strong legal ground: raw material interests can refer to basic economic rights while the environmental lobby can look to the State Goal Resolution laid down in Article 20a of the Basic Law. These opposing camps are not only in a dispute over lignite mining but are also at odds over other raw materials too. Where parcels of land are being occupied or claimed for the purpose of extracting natural resources there is even reference to property protection rights under Article 14 para. 1 of the Basic Law. Protection of property is not limited to expropriation procedures in connection with opencast lignite mines but may be reconciled directly with the State Goal Resolution of Article 20a of the Basic Law. Economic and ecological considerations are therefore to be similarly balanced and need to be weighed up on a case by case basis (50). This result can certainly be achieved on the basis of current mining regulations, so there is no need to abolish, or even reform, the raw materials security clause, as the INSTRO reform proposal is calling for (51).

6  Conclusion

Environmental requirements therefore have to be taken fully into account when it comes to meeting the approval qualifications for mining projects. These criteria carry equal weight in the confrontation with the raw materials interests. This indicates that environmental considerations are adequately addressed by the current legal provisions and the manner in which these have been applied for decades in the dispensation of justice, with the result that no revision of the rules is needed. The same applies to the Purpose of the Act as outlined in § 1 of the BBergG, which contains important proposals for sustainability and is designed to ensure that sustainability remains very much to the fore when Federal Mining Law is being implemented. No modification or revision is therefore needed in this area. This also holds good in the context of the Russia-Ukraine war. The supplies of raw materials that are needed in this context are now beginning to suffer serious shortfalls. Eastern Ukraine, for example, has probably one of the largest lithium deposits in the whole of Europe (52). Lithium-ion batteries are vital for electric car production. This means that as this key natural resource becomes difficult to obtain replacement supplies will have to come from the home-based mining industry or be procured from sources overseas, potentially in return for other raw materials that can be produced here.

This calls for a legislative system capable of ensuring that these vital raw materials can be extracted as required. This is also the sign of a sustainable raw materials production policy. Otherwise the climate protection strategy that we need to secure the living conditions of future generations can never hope to achieve complete success.