Participation of the foreign public in the site selection procedure: prerequisites and the question of informal participation
Authors: Schütte Silvia , Franke Johannes 
Published: November 2021

Abstract. Public participation in the German site selection procedure is not only novel compared to previous sectoral legal regulations, but also significantly more complex. In addition to the usual participation in commenting procedures and discussion meetings (Section 7 of the German Repository Site Selection Act, Standortauswahlgesetz, StandAG), there are new formats for formal participation, such as regional conferences (Section 10 para. 2 sentence 2 StandAG). Informal participation (see Section 5 (3) StandAG) is also planned. In view of the numerous countries neighbouring Germany, the article concentrates on the question of the extent to which the non-German public is also to be involved in this process. The legal regulations are open to interpretation, and their requirements with regard to the non-German public are also largely unresolved in the literature. However, clarification is needed since these are mandatory formats and the German Federal Office for the Safety of Nuclear Waste Management (Bundesamt für die Sicherheit der nuklearen Entsorgung, BASE) is responsible for ensuring compliance with these formats; moreover, complaints can be filed for non-compliance with the mandatory requirements. With regard to participation in commenting procedures and discussion meetings, the relationship between Section 7 StandAG and the requirements for cross-border participation in Sections 54 ff., 61 f. UVPG need to be
clarified. This is due to the fact that Section 7 StandAG makes no provision for any restriction on the “public” to be involved, whereas under the German Environmental Impacts Assessment Act (Gesetz über die Umweltverträglichkeitsprüfung, UVPG), participation is in part made dependent on “being affected”. The solution here is to seek that all people (in the world) are allowed in principle to participate. However, the facilitations specifically provided for only in the UVPG (e.g. translations) can be limited to certain states (or languages). For the regional conferences, provision is explicitly made in Section 10
para. 2 sentence 2 StandAG for the participation of the non-German public
(“shall be given equal consideration”): If the siting region is in a border area, non-German citizens are to participate in the plenary meeting and are given equal consideration to those of the German regional authorities (bordering the siting region). However, the regional section, the concrete administrative entity, is not defined. Here, according to the researchers, the criterion of equivalence can be taken into account by selecting a geographical section that corresponds in its maximum extent to the largest German territorial community that borders on the siting region. The law also does not specify any further prerequisites for the appointment of the deputizing body and its important tasks. Here again, the requirement of “equal consideration” can be taken into account. The procedural rules must at least allow for the eligibility of non-German citizens for election (if necessary by means of proportional representation). Also of great relevance is the inclusion of non-German citizens in informal
forms of participation. Complementary forms of participation are planned in
order to further develop “the procedure of public participation”. The
principles of public participation do not differentiate between the German and non-German citizens to be involved. Moreover, if the legislature establishes the obligation to involve the non-German public in the case of siting regions in a border area, this must, according to the researchers, also apply to the complementary, informal forms: the principle of equivalence produces a “ripple effect” here. Otherwise, a “gap” in information and participation could arise in a siting region in a border area: “complementarily” integrated citizens, political decision-makers and environmental associations on the German side, as well as their non-German counterparts on the other side, that do not have the same degree of information and integration. The contents of the presentation were developed as part of the research
project “Herausforderungen und Erfolgsfaktoren bei grenzüberschreitender Öffentlichkeitsbeteiligung im Standortauswahlverfahren – HErüber” (challenges and success factors in cross-border public participation in the site selection procedure) on behalf of the BASE.