By Erika Clugston
A dilemma faces German legal systems today. When politicians don’t enforce measures to protect the public from pollution, should they be punished? And if so, then how severely? Bavarian judges are putting this question to the European Court of Justice (ECJ) and seeking legal guidance on whether or not senior Bavarian officials, even as high up as Bavaria’s Minister President Markus Söder, deserve jail time for failing to address the air pollution in Munich. The administrative court of the south German state has proposed that jailing officials could be the only way to force them to take action against the rising levels of toxicity in the air.
While it may seem extreme to talk of jailing politicians, the levels of nitrogen dioxide in the air have been rising for years in Munich, as well as dozens of other German cities, and they are well beyond the allowed limits set by the European Union in 2010. This is a big deal. Nitrogen oxides are extremely toxic — they damage our airways, lungs, and hearts, leading to not only illness, but premature death. According to the World Health Organization, more than 2 million premature deaths per year worldwide are a result of nitrogen dioxide poisoning. These air pollutants are primarily caused by diesel exhaust from traffic, and thus are concentrated in big cities. Berlin, Essen, Munich, Dusseldorf, and Wiesbaden all exceed the tolerated EU threshold of 40 micrograms of NOx per cubic meter.
And yet, the government isn’t doing anything about it. The Administrative Court of Munich has already ruled that cities may enforce diesel bans in order to improve air quality. But so far state governments have made no moves to do so, and many have even declared their intentions to refuse to implement bans. Those critical of the government for their lack of action believe that the German politicians, Chancellor Angela Merkel included, are afraid to go head to head with the car industry, and with motorists themselves. So, if they won’t do it willingly, perhaps the threat of jail time will persuade them.
But is it legal? Bavarian Interior Minister, Florian Herrmann called it absurd, and believes there are no legal grounds for the proposal. However many agree with Deutsche Umwelthilfe (DUH), the environmental protection organization that filed the claim against the government, arguing that this is the only way forward if the government does not change its course. If approved by the ECJ, it would set the precedent for contempt of court detentions be used against officials throughout government, all the way up to Bavarian Minister President Markus Söder.
We won’t know the outcome for some time, as submissions are due to Luxembourg by September 28th, with a ruling from ECJ expected after three months. In the meantime, more and more cases are being brought to the courts, with the administrative court in Wiesbaden deciding today on a similar claim filed by DUH against the state of Hesse regarding their non-compliance with air pollution limits set by the EU. One thing is for sure: something needs to change, for the health and wellbeing of European citizens. It’s only a matter of waiting to see how it will happen.
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