Legalization of Eco-balances in Germany

The development and use of, as well as scientific discussions on, eco-balances and in particular life cycle assessment has largely occurred without involving experts on environmental law. However, in the light of recent proposals to ‘legalize’ eco-balances, i.e. formally introducing them into environmental law, the legal implications of eco-balancing must be addressed in the future. The formal introduction, especially of LCA, cannot be decided independent of the general economic and environmental policy implications of material flow management, and it raises major questions of policy and constitutional law. An important question of principle is whether eco-balances should be prescribed or only a legal framework set forth for voluntary use. In view of the unfinished methodological development of LCA, any formal introduction raises the constitutional problem of conformity with the requirements of legal certainty. References to the ‘principles of good eco-balancing’ are problematic, and an introduction on an experimental basis would have to be confined to cases where the legal consequences of grossly divergent interpretations of this term are tolerable to affected firms. Where eco-balances are prescribed as a method of preparing governmental or administrative decisions, one must determine whether and to what extent they are binding on the decision-maker, and develop proper mechanisms of participation, transparency and critical review.