Die Zulässigkeit von Immissionen im anlagenbezogenen Immissionsschutzrecht

The central question of German immission control law is to what extent the individual citizen can be obliged to accept airborne pollution and noise, or – put the other way around – to what extent emission sources, especially industrial undertakings but also public facilities, can be allowed to cause pollution and noise in a legally acceptable manner. On the one hand, this question is dealt with by the German Bundes-Immissionschutzgesetz (Federal Immission Control Act) and the corresponding bodies of regulations. However, the question also has a constitutional law dimension which must not be underestimated, since both the persons subject to the pollution and noise and the emission sources can regularly invoke basic constitutional rights (namely Art. 2 II 1, Art. 12 and Art. 14 of the Constitution of the Federal Republic of Germany). This constitutional collision must necessarily determine the interpretation of the legal provisions of German immission control law. This approach leads to the finding that a valuing dissolution of such constitutional-law-related collisions is in conflict with the regulatory approach of establishing certain thresholds which is based on a strict schematization. The consequence to be drawn from a construction that is in compliance with the constitution is that German immission control law has to take into account constitutional valuations to a much higher degree than currently practiced.