Representing future generations in public participation procedures regarding the siting of a nuclear waste repository

Abstract

Abstract. State decisions regarding a repository for high-level radioactive waste have an extraordinary intergenerational significance. The academic legal discussion has increasingly strengthened the status of future generations in constitutional law. In its recent decision on the German Climate Protection Act, the Federal Constitutional Court equally emphasised that state actors have an obligation to protect future generations. Fundamental rights of future generations thus have an anticipated effect in the present. In general, the legislator is free to choose the appropriate means to protect these rights. The interests of future generations may be promoted by substantive or procedural law. The German Site Selection Act (StandAG), however, makes use of procedural protections to a significant extent. Including the interests of future generations in the existing public participation procedures and participation bodies is, therefore, crucial for the effective protection of future generations. The presentation examines to which extent the current legal framework for the site selection for a high-level radioactive waste repository in Germany enables an effective representation of the future generations' interests. Existing publications (Appel, 2005; Rose, 2018; Kloepfer, 1993) name various characteristics of effective “intergenerational institutions”. Accordingly, these institutions should be independent, exist long-term, serve future interests solely or primarily, and have strong rights vis-à-vis decision-makers; however, German constitutional law, namely the principle of democracy, limits the design of such institutions. Not all of the abovementioned characteristics can be combined. Nevertheless, the constitution enables means to include and promote the interests of future generations in decision-making procedures, which are not fully exploited by the German Site Selection Act. The participation procedure includes several groups which could promote intergenerationally just decisions, namely environmental associations, the public and representatives of the “young generation”; however, none of these stakeholders are “intergenerational institutions” in the abovementioned sense. Subsequently, the presentation proposes various reforms: improving the sustainability impact assessment during the legislative procedure, the implementation of an “intergenerational impact assessment” and an ombudsperson for future concerns, who could be affiliated with the National Citizens' Oversight Committee (Nationales Begleitgremium).