1 Law and LDN
In order to assess how law can contribute to achieving land degradation neutrality (LDN), we need to define more precisely what the legal instruments would seek to achieve. The goal ‘land degradation neutrality’ on its own is not specific enough.
A basic intuitive understanding of LDN is that in a specific time and area, the total amount and quality of land resources should not become worse. This basically is what the UNCCD adopted as a definition of LDN in more scientific terms: LDN is a ‘state whereby the amount and quality of land resources necessary to support ecosystem functions and services and enhance food security remain stable or increase within specified temporal and spatial scales and ecosystems’.1 However, there are no universally used definitions of each of the three terms ‘land’, ‘degradation’ and ‘neutrality’ that provide clear guidance for implementing the concept as a whole. For instance, the SDG 15.3 does not provide a baseline against which ‘neutrality’ is supposed to be achieved. So far, much of the work at the international level has focused on clarifying these terms by developing definitions and indicators. This work is addressed in detail in a different chapter of this book.2
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At the international level, the UNCCD considers that the term ‘land’ comprises more than ‘soil’.3 In German and EU legal texts, there is no uniform translation or usage of the terms ‘land’ and ‘land degradation’. Sometimes they are used synonymously with ‘soil’ and ‘soil degradation’.4 The German Federal Soil Protection Act and most laws generally use the term ‘soil’ and do not have or address a distinct ‘land’ category. The term ‘soil’ and the functions included by the law are broad enough to address the purpose of LDN.5 In this chapter, we use the term ‘soil’ in this wider sense.
From a legal perspective, it is not necessary to know each LDN indicator in order to assess whether and how the existing legal instruments and techniques are suitable and adequate for achieving LDN. Instead, it is important to identify conceptual components of LDN to be addressed by law.
1.1 Offsetting as Part of LDN
The wording of SDG 15.3 does not say that all degradation should be avoided. Instead, SDG 15.3 accepts land degradation as long as the total amount and quality of land resources remains at least stable within a specific time frame and area. LDN involves a balancing approach by which degradation is set off against improvements.6
The UNCCD Secretariat’s ‘Zero Net Land Degradation’ target had already included setting off degradation by restoration, as part of sustainable development.7 Slowing down land degradation by sustainable land management went hand in hand with restoring ecosystems, and together they led to LDN.8 On the other hand, The UNCCD argued that LDN was no ‘license to degrade’ and did not advocate for a ‘grand compensation scheme’.9 Market-based offset or compensation schemes had been proven to be complex, problematic and generally ineffective.10 It is therefore not clear whether the balancing concept of LDN should allow any degradation to be offset in order to achieve LDN or whether there should be a threshold beyond which offsetting is undesirable and would not count towards LDN.
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In order to offset degradation, it has to be determined where and when restoration may take place in order to qualify for offsetting and thus contributing to achieving LDN.
With regard to where neutrality is to be achieved, the SDGs address the UN Member States. Germany is to achieve LDN on its territory as a whole, and restoration would have to take place there in order to offset degradation. This makes sense as it corresponds with Germany’s sovereign power to govern its territory. There are other governance models that are not based on legal or political boundaries. For instance, the EU’s water framework directive requires EU Member States to jointly manage river basins as whole ecosystems, regardless of where they cross borders. In international law, there is practice and basic principles concerning the utilisation of shared resources such as rivers.11 However, there is no indication that the UN intended to encourage States to engage in a global offsetting scheme beyond their own territory—even though SDG 15.3 refers to a land-degradation-neutral world.
If offsets require a close spatial link such as occurring in the same ecosystem, Germany will have to compile and aggregate the balance of all local and regional areas in which offsets occur, in order to know whether Germany as a whole achieves neutrality.
With regard to the time frame for LDN and offsetting, three questions need to be addressed: (1) what is the starting point against which LDN is to be achieved (baseline); (2) at which point in time is LDN to be achieved and (3) when does restoration have to occur in order to count as an offset against degradation?12 SDG 15.3 does not answer the first question. It does not define the baseline, and the UNCCD’s conceptual framework merely recognises that it must be established.13 With regard to the second question, SDG 15.3 sets the year 2030 as the target date. Although strictly speaking LDN does not have to be achieved by 2030 because States should merely strive to achieve by then, we assume that Germany seeks to achieve the goal by that point in time. With regard to the third question, SDG 15.3 does not mention or require a temporal link between degradation and offsets. The UNCCD’s definition merely mentions ‘specified temporal…scales’ but does not specify them.14
In addition to where and when offsets may take place, there may be other requirements that have to be fulfilled in order for restoration to count for LDN. For instance, restoration may have to restore the same soil functions as the degradation. The UNCCD’s conceptual framework suggests that ‘counterbalancing is managed within the same land type’, although it is not clear whether this is meant to be a normative statement.15
1.2 LDN Components to be Addressed by Legal Instruments
Based on previous conceptual work16 and the analysis above, legal implementation of the LDN goal should distinguish the following conceptual components of LDN:
1.
Preventing degradation: this involves legal rules and instruments preventing (further) degradation. The less land is further degraded, the less restoration has to occur as offsets in order to achieve neutrality. The simplest example is a prohibition of a particular activity that degrades land. The law could also require precautionary measures.
2.
Restoring and rehabilitating degraded land: this pertains to legal rules and instruments requiring or enabling that land is restored or rehabilitated. For instance, the law might require that persons responsible for land degradation, e.g. through negligence, have to restore it. The underlying assumption that land functions can be restored to how it was is not necessarily tenable. However, such shortcomings have to be accepted to some extent, and practicable indicators have to be developed in order to use legal instruments to achieve LDN.
3.
Offsetting and land-use planning and management: first, this includes legal rules and instruments that require or allow that degradation is offset by restoration. Such rules apply to specific cases of land degradation that has occurred or is about to occur. For instance, permission for a building project that would degrade a habitat may be granted only if the applicant restores or upgrades land to a functionally equivalent extent. Second, the law might require that land use is planned and managed in a forward-looking manner. It may require that land use and soil protection are considered as part of existing planning procedures, such as town and country planning. It could also require planning and management specifically for soil.
In addition, the concept of LDN requires information: for any offsetting, it is not only desirable but also inherent to know where soil has degraded or improved. Indicators are required that measure the status of land, degradation and restoration. The law might address the gathering of relevant information and the methodology to be used, in order to have reliable and coherent information about progress towards LDN, and a sound basis for political decision-making. Conceptually, this chapter addresses information systems as part of the category ‘land use planning and management’.
1.3 Soil Protection and LDN in the German Legal System
Which legal instruments are available to protect soil and achieve LDN depends on the legal system they are part of.
For instance, Germany is a federal State with 16 States (Länder), in which the constitution distributes legal powers between the federal level, the State level and the municipal level. This is relevant, for instance, in order to determine whether and to what extent the federal level may regulate an issue at all or to what extent the States may deviate from existing federal laws. The division of powers is also relevant for considering which regulatory level would be competent (in addition to appropriate) to adopt potential new laws or measures regarding LDN. Last but not least, as a general rule, federal laws are implemented and enforced by the States, using their respective administrative structures and procedures. This can lead to different implementation rules, practices and effects in different parts of Germany.
Moreover, Germany has a highly detailed civil law system with courts deciding on minute details of interpretation of the numerous laws and administrative practice. Access to courts in order to challenge administrative decisions is possible in most cases and also affordable, although the process could be faster. Citizens and other actors affected by administrative decisions can take legal action, e.g. against refusal by the authority to grant a permit for an activity on the grounds that it would degrade soil.
Furthermore, Germany is also a Member State of the European Union (EU), which has the power to adopt legal acts that are binding on and sometimes directly legally applicable in Germany.17 EU Member States have a legal obligation to transpose, implement and give legal effect to EU legislation, which overrides national law. Over the last decades, EU legislation has shaped many areas of environmental law in Germany and other Member States. However, while many EU environmental rules in other areas also address particular aspects of soil and land degradation, soil protection is one area where there is no specific overarching EU legislation. In 2006, the European Commission had made a proposal for a soil framework directive but withdrew it in 2014 because it saw no political chance for adoption.18 In the absence of specific and comprehensive EU legislation, Germany is quite free to choose its approach to implementing SDG 15.3 and achieving LDN.
2 Legal Instruments in Germany for Addressing LDN
This section further develops previous work that provided an initial overview of legal approaches to soil protection in Germany.19 It analyses the legal mechanisms by which existing German law addresses each of the key components of LDN identified above20: (1) preventing degradation, (2) restoration and (3) offsetting, planning and management. It focuses on one specific soil threat: erosion caused by agriculture, and on the State of Mecklenburg-Vorpommern (MV).21 In that State, almost half of the land is used for agriculture.22 Soil erosion by wind and water is one of the main problems caused by it.23 MV has adopted several laws that implement, supplement and sometimes deviate from federal laws.
2.1 Prevention
The starting point for preventing land degradation by erosion is the federal Soil Protection Act (SPA) of 1998.24 German environmental law started addressing soil relatively late compared to other environmental issues. While many laws on other issues such as water, emissions and building also include provisions on soil, laws specifically addressing soil protection were first passed in the 1990s, with the federal Soil Protection Act (SPA) adopted in 1998.25 The federal SPA bars the States from adopting deviating laws unless allowed by the SPA. Their remaining power is to fill the gaps that are not exclusively regulated by the SPA and to determine their respective administrative institutions and procedures.26
The SPA’s objective is to protect soil against degradation and to pursue a precautionary approach. One significant shortcoming of the SPA is its scope of application: it is subsidiary to a whole range of other laws, including laws on waste, fertiliser and plant protection, infrastructure, town and country planning, building, mining and emission control. The SPA only applies to the extent that these laws do not regulate impacts on soil.27
The SPA contains obligations to take precautionary measures, to prevent concrete risks of degradation and to restore degraded land.28 Together with the Federal Soil Protection Regulation, a delegated statutory instrument, the SPA defines the instruments that are available to the authorities to monitor compliance and to enforce these obligations. It also authorises the federal States to determine soil protection areas.
Although there are no specific provisions in the SPA on erosion, it is included in the definition of degradation.29 However, with regard to preventing erosion resulting from agriculture, § 17 SPA privileges agricultural land use in several ways: the standard that agriculture has to comply with is different from other land use with regard to precautionary measures, as well as with regard to averting concrete risks. In addition, the instruments and enforcement measures available to the authorities are significantly restricted.
Precautionary obligations apply when there is no indication of a concrete risk or hazard. Under the SPA, land owners, proprietors and operators are under a specific obligation to take precautionary measures against degradation. In contrast, agricultural land use merely has to comply with ‘good agricultural practice’. The SAP does not define good agricultural practice but lists a few general principles. Those relevant for erosion provide that loss of soil matter should be avoided by land use that is appropriate to local circumstances and that structural elements, in particular hedges and shrubs, should be maintained. These principles are quite unspecific, even though the competent authority at State level has published several nonbinding guidance documents.30 In addition, the enforcement measures for the default precautionary obligation are not available for agricultural land use. Moreover, not complying with good agricultural practice is not an administrative offence with potential penalties. The only instrument available to the authorities with regard to farmers who do not comply is to provide advice.31
In addition to precautionary obligations, the SPA also imposes obligations to avert concrete risks to soil. It also provides specific duties, powers and reference criteria for the authorities to investigate and determine whether and to what extent degradation has occurred.32 However, the SPA provides legal privileges for agriculture that are similar to those for precautionary obligations. The authorities may take the measures available to it under the SPA only if neither other laws nor good agricultural practice provide for such measures. Insofar as measures under the SPA are possible, the statutory instrument provides indicators and thresholds for probing and assessing erosion by water, but not for erosion by wind. And if the authorities take measures against a farmer that restrict agricultural land use, it may have to pay compensation.33
MV’s State law that implements the federal Soil Protection Act does not provide additional relevant safeguards.34
The SPA is widely regarded as an ineffective instrument because it focuses on reactive control measures and contaminated soil, while it is weak on precautionary and planning aspects.35 Specifically on agriculture, the SPA’s regulatory technique is based on the self-interest of farmers to avoid degradation and erosion. The argument is that agriculture is too diverse to be regulated by standard rules. In contrast, critics argue that the farmers' self-interest might be guided more by productivity than by sustainability. It would be possible for authorities to use the different instruments at their disposal according to the individual case.36
The federal Nature Protection Act also prevents land degradation to some extent. A key rule provides that, in principle, interventions in nature have to be avoided and that unavoidable interventions are subject to a permit and have to be compensated.37 Erosion caused by agriculture can qualify as an intervention in nature.38 However, the Nature Protection Act also privileges agricultural land use: it states the legal assumption that activities in accordance with good agricultural practice do not constitute an intervention in nature for the purpose of this Act.39 The Nature Protection Act defines principles of good agricultural practice in addition to those in the SPA. In the remaining cases where erosion qualifies as an intervention, the authorities can refuse the permit under certain conditions and impose fines for infringements.
At State level, MV’s law on nature protection provides obligations to take precautionary measures against erosion on steep slopes and embankments, but these rules apply only to building activities and not to agriculture.
Other laws that protect erosion include, inter alia, water law, which protects by protecting riparian buffer zones. The federal Water Act40 prohibits the turning over of all pastures within 5 m from the riverbank unless an exemption is granted.41
There are several other sectoral laws that can contribute to preventing land degradation by using different regulatory approaches.42 For instance, the Federal Forest Act provides that changing forest to a different land use requires a permit and lays down criteria for refusing such permits.43 The Fertilising Act indirectly protects soils by regulating which types of fertilisers may be placed on the market and by prescribing criteria for their use.44 However, its main purpose is to increase soil yield.45 The Federal Immission Control Act defines detailed permit and monitoring procedures for industrial installations in order to prevent mainly air pollution and noise but also soil and water contamination. Based on EU legislation, its main feature is the integrative and cross-media regulatory approach, by which the permit authority has to consider all environmental impacts in an integrated manner.
At State level, MV’s Act to Preserve Land Under Permanent Pasture46 generally prohibits the turning up of land under permanent pasture, while exemptions require a permit, which may be granted under restrictive conditions. This law is based on the EU regulations on agricultural subsidies, under which maintaining areas of land under permanent pasture is one condition for receiving subsidies. The regulatory approach adopted by MV goes further because it applies not only to recipients of subsidies and changes the financial incentive into a regulatory prohibition.
Apart from obligations and prohibitions, the law also provides positive incentives to prevent degradation through subsidies laws. In the EU, the common agricultural policy provides an important source of income for farmers, including in Germany. They receive direct financial support that is partly conditional upon compliance with certain environmental requirements (cross-compliance) and carrying out ‘greening’ measures that benefit the environment and the climate. EU Member States have to set minimum standards, including protection of soil from erosion.47 Accordingly, German federal law requires the States to classify and register agricultural areas according to erosion risk levels (see above) and also requires certain obligations according to the risk level. These include, for instance, a ploughing ban during certain periods, a ban on removing elements such as hedges and obligations regarding minimum soil cover. At State level, MV has financial support programmes for measures preventing soil erosion.
2.2 Restoration and Rehabilitation
Because the law will not be able to prevent further degradation completely, achieving LDN also requires restoration and rehabilitation of land. Legal instruments may, for instance, set obligations to restore degradation, e.g. by requiring that anyone who degrades land beyond a certain threshold, without being legally entitled to do so, has to restore it. Conceptually, this aspect of LDN is about restoring the actual land that is degraded, as opposed to offsetting degradation in one place by restoration somewhere else.
The German SPA was adopted at a time when already contaminated land was regarded as the key issue to be addressed. Restoration is at its core, with detailed provisions addressing investigation and assessment by the authorities, restoration plans48 and enforcement powers, as well as technical criteria in a delegated statutory instrument.49 When degradation has already occurred, the SPA requires to restore the land insofar as it is necessary to avert concrete risks or significant adverse effect or nuisance. The obligation is jointly on the legal entity or person causing the degradation, his legal successor, the land owner and the land holder.50 In principle, this obligation applies to agricultural land use as well. However, as with precautionary obligations, the law privileges agriculture as the obligation to restore is subordinate to other rules regarding agriculture and to good agricultural practice. Although the SPA lists ‘improvements to soil structure’ as one of the elements of good agricultural practice, it does not specify details. This leaves very little room for the authorities to use their enforcement powers in cases of agricultural land use.51
When the obligation to restore applies, the law takes a tiered approach to the type of restoration measures required, depending on how the land is used and other factors. In the case of contamination, for instance, the priority is on de-contamination as opposed to leaving the contaminants in the ground and merely preventing harmful effects.52 With regard to other degradation such as erosion, as a priority the person responsible has to reverse or mitigate the degradation, e.g. by supporting a sliding slope. Where such measures are not possible or unreasonable, the second-best option is to contain and mitigate the effects of the degradation without actually reversing it.53 As with prevention orders, the authorities may have to pay compensation if the restoration measures restrict agricultural land use.54
The SPA also provides that the land owner may be ordered to take de-sealing measures if the land concerned is permanently out of use and the sealing contravenes determinations made in planning instruments.55 However, besides legal difficulties in implementing this provision, it is subordinate to the de-sealing rules in the Building Code.56 These provide, in particular, that municipal authorities may require the land owner to acquiesce in dismantling and de-sealing measures under certain conditions. However, the land owner does not have to carry out this measure himself, and he is entitled to compensation.57
As with preventing erosion, the agricultural subsidies rules also provide incentives to restore erosion caused by agriculture. The conditions for receiving full support include requirements with regard to land cover in certain agricultural areas, in particular areas that have been set aside. Such areas have to be left to grow natural cover or be seeded for growing cover. This is a financial incentive to restore pastures, but it applies only to recipients of subsidies.
2.3 Offsetting and Land-Use Planning and Management
Because land will continue to be degraded, in addition to preventing degradation and restoring of land, achieving LDN requires that, overall, land degradation is at least offset by land restoration. At the individual activity and project level, legal instruments can contribute, for instance, by requiring that activities that degrade land are offset by restoring or otherwise improving other land somewhere else. At area level, legal planning instruments are a tool for managing land use, e.g. by determining which types of land use are permitted in which areas, or by setting qualitative or quantitative targets.
2.3.1 Legal Rules for Offsetting Land Degradation at Project and Activity Level
German law includes rules requiring that land degradation on one place is offset by compensatory measures somewhere else. Notably, the ‘intervention rule’ in the federal Nature Protection Act requires that unavoidable interventions in nature are offset by balancing or substitution measures. The rule is designed for offsets regarding individual projects.58
In theory, if an intervention in nature is fully compensated, the balance stays neutral. However, this depends on how and by which method compensation takes place. The intervention rule applies a hierarchical stepwise approach: (1) in principle, interventions in nature that can be avoided have to be avoided. (2) Interventions that are unavoidable (in the legal sense) have to be compensated primarily either by balancing measures that achieve ‘similar’ nature functions or by substitution measures that achieve ‘equivalent’ nature functions. (3) If neither is possible, the authority decides whether, on balance, the interest of nature protection prevails over the applicant’s interest to implement the project. (4) If the authority permits the intervention, the person responsible for the intervention has to pay monetary compensation.
Conceptually, the intervention rule contains all elements of LDN in one legal obligation. It fully captures and translates into legal terms what the UNCCD’s conceptual framework calls the ‘LDN response hierarchy’.59
However, the intervention rule does not specifically address soil, although its scope might also apply to interventions caused by land degradation. However, it is worth a detailed look because it is an attempt at pursuing neutrality specifically through a legal obligation, because the rule specifically addresses offsets, and because its subject matter—nature protection—is close to land degradation. Which questions and problems are raised when the law regulates whether and how a particular degradation has to be offset? There is extensive practical experience in applying the intervention rule, including practical implementation and enforcement, detailed methodology and a large body of case law.
Not every modification of nature and landscape is an intervention in the sense of the law. The Nature Protection Act defines ‘interventions’ and the threshold from which the intervention rule applies. These are basically changes to land that alter its outward appearance, replace previous land use with a new one or effect certain changes to the ground water level and that are likely to adversely affect the objectives of the Nature Protection Act.60 There is a legal assumption that agriculture in accordance with good agricultural practice is not contrary to these objectives. However, it may be an intervention if land use is changed in order to enable agriculture or make it more effective, e.g. when there is a change from one type of agricultural use to another.61
With regard to timing, when do the compensatory measures have to take place in order to fulfil the requirements of the intervention rule? Which time periods are included in calculating the two sides of the balance? The law requires that the measures are compensated ‘within a reasonable time’. In principle, the compensatory measure has to be ensured at the time when permission for the intervention is granted and must not depend, e.g., on approval by third parties. Moreover, the compensatory measures should be carried out at the same time as the intervention and have to be maintained ‘for a necessary time period’.
In terms of a spatial proximity, the law does not explicitly require a spatial link. However, according to the courts, there has to be a ‘spatial-functional’ link between the intervention and the compensatory measures. This may simply mean that there is a spatial link between the two.62
From a functional perspective, compensatory measures have to improve ecology at other sites and create a situation that is at least similar to the nature functions affected by the intervention. Merely maintaining and protecting existing land does not improve ecology and therefore does not qualify as compensation.63 However, the functional link relates to nature protection as a whole. In other words, the law does not absolutely require that land degradation in one place is compensated by land improvement in a different place.
If compensatory measures are not possible and the authority decides, on balance, to allow the intervention, the person responsible for the intervention has to provide monetary compensation. The law provides that the payment has to be earmarked for nature protection measures.
The Nature Protection Act also authorises the States to maintain a system for ‘banking’, trading and pooling of compensatory measures. The State of MV, for instance, has done so in order to facilitate land-use-efficient offsetting. The law also provides for a register of compensatory and banking measures and the respective sites. This enables keeping track of and statistically analysing interventions and offsets.
The intervention rule is also relevant for municipal building planning instruments. The municipal planning authorities have to determine whether implementing a legal plan, such as a zoning by-law, would amount to an intervention under the nature protection law. If this is the case, the rules of the Building Code take over and determine the legal consequences of the intervention and the rules for compensation. In these cases, authorities have more flexibility than under nature protection law to decide whether, how and where interventions are compensated, and compensation areas and measures can also be determined in a planning instrument.64
Besides the intervention rule, the State of MV also has an offset provision with regard to the prohibition to turn over permanent pasture into farmland: an exemption may be granted if the applicant creates new permanent pasture on farmland somewhere else, which may belong to a different owner. The compensation areas have to be in the same county ‘as a priority’, and of the same size, but do not have to be functionally equivalent.65
2.3.2 Area-Based Legal Instruments for Planning and Land Management
At area level, area-based legal instruments include (1) designating specific protected areas in which particular legal restrictions and other requirements apply; (2) legal planning and management instruments that determine, e.g., targets, priorities, permitted land use; and (3) soil information systems:66
(1) Protected areas: the SPA authorises the States to provide in their legislation that their authorities may designate soil protection areas in cases where there is extensive degradation. The States may also provide for ‘other area-based soil protection measures’.67
MV has used the delegated powers and enacted legislation allowing the designation of soil protection areas. The legislation defines, in a general way, which land-use restrictions, obligations and measures the authorities may prescribe when they designate a particular protected area. These may include that the soil has to be covered or planted.68 However, for the most part, the list includes restrictions of land use rather than restoration. Therefore, under current legislation in MV, soil protection areas are mainly suitable for preventing (further) degradation but less so for restoration. In addition, precautionary area-based protection is difficult because one condition for designating areas is that extensive degradation already occurs. The powers delegated under the SPA provide more options to MV for area-based soil protection, but so far MV has not made full use of them.69
The federal Nature Protection Act also provides for several different types of area-based legal instruments. They can protect soil indirectly if the soil functions are necessary in order to serve the primary purpose to protect nature. To what extent these instruments actually manage land use therefore depends on the content of each individual designation.
Water law also provides for area-based instruments, notably water protection areas and flood areas. Similar to nature protection areas, they can indirectly protect soil. Water protection areas are mainly designated to protect the ground water from pollutants and contaminants and may involve, e.g., restrictions on fertiliser and pesticide use, on cultivation and on turning over pastures.70 These legal obligations apply to agricultural use and may be stricter than the requirements of good agricultural practice. However, the extent to which water protection areas protect soil is limited because the water protection area and the designated legal consequences have to be necessary to protect water. In addition, if the designation restricts agricultural use, the authorities have to pay adequate compensation.71 This limits the practical potential of using water protection areas for soil protection.
With regard to flood areas, the federal Water Management Act uses a regulatory technique that differs from the SPA: it not only enables the States to identify flood areas; it requires them to do so. The Water Management Act also defines the particular legal obligations for flood areas and does not delegate this to the States. Besides prohibitions on building and on designating building areas, specifically with regard to erosion, it is prohibited to change land use from pasture to arable land and from alluvial forest to any other use. However, exemptions are possible, and in order to refuse an exemption, the authority would have to show that the particular degradation would specifically raise the flood risk—which is difficult.72 In general, the potential of water law for land use and soil management is limited.
Protected areas can be important tools because they are often designated by a statutory instrument. In the hierarchy of rules, such instruments rank lower than formal statutes enacted by Parliament but higher than, e.g., local planning or by-laws.73 For example, soil protection areas in MV are designated in the legal form of a statutory instrument. Therefore, the legal duties and restrictions determined in that soil protection area have to be complied with by any local planning order or by-law. The same goes, e.g., for nature protection areas and water protection areas.74
(2) General legal planning and management instruments: the federal government’s Sustainability Strategy 2016 mentions LDN as its highest priority with regard to soil.75 This is a political goal for which there is no formal legal land planning or management tool specifically on soil protection.76
Germany has a complex tiered system of planning laws and instruments. German planning law incorporates environmental concerns, including soil protection at many planning levels. There are legal planning instruments at federal, State, regional and local levels. Some planning instruments are overarching as they address and seek to reconcile all different competing interests, such as infrastructure, mobility and environment. Others address specific issues such as energy, building, nature protection or water. Their legal nature also differs and may, for instance, be binding on third parties or only on internal administrative decision-making. The cross-cutting federal Environmental Impact Assessment Act requires several planning instruments to include and take into account an environmental impact assessment, which includes impacts on soil.77
The federal Spatial Planning Act78 is the starting point for overarching regional planning since it is mainly implemented by the States, which are authorised to enact deviating legislation.79 The Spatial Planning Act aims at ‘equivalent’ living conditions in the respective spatial areas. Moreover, authorities have to aim at ‘balanced’ conditions overall, including in environmental terms. This does not mean ‘equal’ or ‘homogenous’ conditions. But it does exclude a radical offsetting approach by which only the overall balance of land degradation matters, regardless of whether the quality of soil and land is particularly degraded in some places and particularly good in others. The Spatial Planning Act stipulates ‘objectives’ and ‘principles’ of spatial planning, which have different legal implications. The main legal difference is that the objectives defined in spatial plans have to be complied with, whereas principles have to be taken into account in subsequent administrative decisions such as granting of permits. Some of the principles in the Spatial Planning Act are relevant for land use and soil protection: for instance, nature, including soil, has to be used sparingly.80
In order to ensure a common approach to spatial planning, the relevant ministers of the different States jointly adopted non-binding guiding principles for spatial development. In MV, the State’s planning law reiterates the aim of creating equivalent living conditions. Land that is particularly suitable for agriculture has to be preserved and farmed in an environmentally sound manner as much as possible. Damage to natural assets, including soil, has to be remediated as much as possible. These principles have to be taken into account in all spatial planning processes and balanced against other principles.81 On this basis, MV has adopted a Spatial Development Programme for the whole State.82
Specifically with regard to planning instruments for soil, MV’s Soil Protection Act states that the highest soil protection authority ‘should’ develop a ‘soil protection program’ containing targets and measures for MV. It has to take into account not only existing spatial planning but also ‘national and international environmental programmes’.83 This could provide an interesting legal hook for incorporating SDG 15.3 at the State level. The government of MV has been working on this programme for some time but so far has not published it. Once it is adopted, the State law provides that the soil protection programme will be part of the State’s formal planning.
These instruments of overarching regional spatial planning law are a tool for directing and managing how areas are used and for prioritising or subordinating certain land uses vis-à-vis other uses. With regard to agricultural use and erosion, in particular, the steering effect of spatial planning is limited because for this use, there usually is no permit procedure in which the regional planning instruments would have to be taken into account.84
At municipal level, the available legal planning instruments are the central legal mechanism for steering local development and land use. They may prescribe the type and extent of permitted uses in the areas and individual parcels of land in the municipality. The federal Building Code provides several requirements regarding whether and how these planning instruments have to address environmental and soil protection, e.g. in the elaboration of planning instruments, balancing against other interests, the permitting process and de-sealing. At a general level, for instance, local planning instruments have to include and take into account an environmental impact assessment. More specifically, several provisions address in particular the growing concern about increasing land usage and sealing. There are rules prioritising inner city development for further building over using forests or agricultural land. Another key provision restricts building in areas that are outside existing plans and already built-up areas.85 The ‘intervention rule’ is also relevant to municipal planning, although the authorities have more flexibility regarding compensatory measures. Under certain conditions, the Building Code excludes compensation in developed areas in order to provide an incentive to build there rather than in previously undeveloped areas.86
There is also a special ‘soil protection clause’ that contains particular requirements for municipal planning instruments.87 It is intended to give soil protection more weight in the planning and balancing process. However, the soil protection clause does not impose absolute restrictions and appears to have not made much difference in practice.88 A recent amendment to this provision has added an obligation to provide a reasonable justification if a plan intends to change agricultural or forest land use. The justification should be based on an analysis of the potential for using land in already developed areas instead. It remains to be seen whether this regulatory approach of increased transparency could strengthen land management at the municipal level.
Besides the overarching planning instruments, there are planning instruments for specific subject matters. In nature protection law, the federal Nature Protection Act provides that landscape planning is mandatory for States. The plans are to determine and justify the objectives and measures for nature protection in the areas to which they apply. Measures determined in landscape planning instruments may apply not only to buildings and construction but also to agriculture. They may include improving soil quality and its rehabilitation, and municipalities may, for instance, prescribe measures to prevent erosion.89 The State law in MV provides that all levels, from State level down to the municipal level, have to do landscape planning. However, the plans are binding only on the authorities, which have to comply with them or take them into account.90
(3) Soil information systems are needed in order to provide the information necessary for pursuing LDN.91 At national level, in 2015 the Federal Environment Protection Agency prepared a comprehensive report on the state of soil in Germany, and the federal government reports once every electoral term on progress in soil protection.92 The federal government’s revised Sustainability Strategy of 2016 specifically mentions developing better indicators in order to support implementing measures towards LDN.93
MV has a mandatory land information system that contains not only contaminated land but also degraded land and potentially degraded land.94 Federal law also requires MV to classify and register agricultural areas according to erosion risk levels.95 The register96 is mandatory, but its background is governance by financial incentives: subsidies under the EU’s Common Agricultural Policy scheme are conditioned on, inter alia, applying farming practices that limit erosion. Accordingly, the competent ministry in MV has to inform annually farmers who apply for subsidies about the areas that are vulnerable to erosion.
3 Assessment and Conclusions
Despite a range of legal provisions and instruments in German law that protect soil, the absence of an overarching holistic concept is a fundamental shortcoming also with regard to LDN. It is apparent, e.g., in the Soil Protection Act’s subordination to several other laws and its lack of teeth in respect of implementation and enforcement.99
With regard to preventing land degradation, there are many legal rules and mechanisms, but they are scattered, and the piecemeal approach does not facilitate implementation. Regarding agriculture in particular, it is legally privileged in several respects. Agricultural land use usually does not require a permit, which means that a number of laws do not apply. Moreover, the standards of conduct to be applied to agriculture are often limited to those of ‘good agricultural practice’, which are vague and difficult to monitor and enforce. The legal situation is better in the case of permanent pasture and subsidy requirements.
The existing rules on restoration mainly focus on contaminated land and increasingly on de-sealing. The SPA takes an interesting regulatory approach by providing a range of measures and indicators to assess risks and determine the response and procedure, including in complex cases. However, restoration under the SPA is linked to the land’s particular function and does not go beyond averting risks from the degradation.100
With regard to offsetting at project and activity level, there are few legal rules on offsetting soil degradation in one place with soil improvements in another. The ‘intervention rule’ in the Nature Protection Act provides a model and long experience in how offsetting can be required and implemented. The register of compensation measures could be a model for managing offsetting more comprehensively at a later stage. Similar to the SPA, however, the intervention rule is not well suited for addressing agriculture because its scope of application is limited.
Although Germany has a complex system of legal planning tools at different spatial areas and sectors, there is currently no specific legal land planning and management instrument that ensures a precautionary approach.101 The SPA is barely suited to provide sustainable and precautionary soil management.102 At the State level of MV, the government has for years not fulfilled its obligation to adopt a soil protection programme that would be part of the State’s legal planning instruments. But it would be possible to enshrine an objective such as LDN in a law.103
German law provides for different area-based instruments, all of which require from the outset that the area in question needs to be protected in certain respects—e.g., to protect nature or water quality.104 Amongst these instruments, protected areas can be important tools because they are often designated by a statutory instrument. However, the effectiveness of protected areas both under the SPA and under the nature protection laws depends on the terms of the respective individual designation.
The law provides only few possibilities to address erosion caused by agriculture because the planning instruments do not apply to agriculture or they have little steering effect.
In general, environmental issues such as soil and land use play a mainly defensive part in legal planning processes: environmental law and considerations de facto mainly come into play as restrictions to other uses such as building roads, industrial activities etc.105 Some argue that in order to go beyond this approach and move towards a holistic eco-spatial management, the overarching regional spatial planning instruments were crucial. Their function was to balance environmental interests with competing other interests—a function that isolated issue-specific planning instruments such as for nature or water protection are unable to fulfil.106 On the other hand, currently, soil protection and land-use management are just some of the many environmental aspects to be considered in overarching planning processes. Soil and land often lose in the balancing processes and are deferred, in particular when there is no formal land planning instrument specifically on soil protection that could give them more legal weight. This would not necessarily change under a holistic eco-spatial management approach. Therefore, as a first step towards achieving LDN, it might be more effective to enable the authorities to use the existing planning law instruments of German law more effectively for the purpose of soil protection.