Use Existing Laws Instead of Creating New Bureaucracy

A key principle must be that existing and effective regulations take precedence over new, duplicative structures. This applies in particular to the interaction with provisions under special laws, such as mining and air pollution control laws. The BDI therefore calls for retaining the existing subsidiarity provisions of the Federal Soil Protection Act and for not subjecting activities and areas that are already comprehensively regulated by sector-specific laws to additional substantive requirements of an SML implementation law.
National implementation should also build on existing systems when it comes to data and registries. Germany already has cadastres of contaminated sites and sites of concern, as well as other soil protection-related databases maintained by the states. Instead of establishing new parallel systems, these should be utilized as much as possible.

Soil health must be assessed using scientifically sound methods

Particular attention is required when assessing soil health. Natural geological or climatic site characteristics must not automatically be interpreted as soil degradation. The BDI sees practical challenges particularly with regard to the soil descriptors envisaged in the SML, such as erosion thresholds, the determination of soil phosphorus content, and the measurement of bioavailable heavy metals. National implementation must therefore remain scientifically sound and take regional characteristics into account. The BDI also advocates for a state-level flexibility clause in the Federal Soil Protection Act so that proven regional solutions—for example, regarding backfilling and reclamation—can be preserved.

Reducing Land Consumption Through Incentives Rather Than Additional Regulatory Measures

The SML’s requirements regarding land consumption must not become a new obstacle to obtaining permits. The BDI calls for the principles for reducing land consumption under Article 12 to be implemented primarily through economic incentives rather than additional regulation. Furthermore, where compensation for ecosystem services is necessary, flexible instruments such as land pools should be made possible. It is crucial that the implementation of the SML does not result in any additional substantive approval requirements. Legal and planning certainty is particularly needed for investments in industrial value creation, infrastructure, and the energy transition. Accordingly, the position paper warns against overburdening existing procedures, areas of responsibility, and sector-specific laws with additional reporting, documentation, or permitting requirements.

Raw Material Extraction Requires Special Consideration

Potential conflicts of interest become particularly evident in the context of domestic raw material extraction. Active extraction sites differ fundamentally from lands used for permanent ecological purposes: During the extraction phase, soil functions are systematically and lawfully altered or temporarily suspended. The BDI therefore calls for raw material extraction to be recognized as a distinct land use category and for active extraction sites to be exempted from the soil health regime.
In the BDI’s view, additional soil monitoring during the active extraction phase would be neither appropriate nor proportionate. Raw material extraction sites are already subject to mining operation plans, environmental impact assessments, and requirements under water and nature conservation laws, as well as obligations for reclamation and restoration. The additional application of the SML would therefore result in double regulation.
Similarly, the requirements regarding land use must not retroactively call into question planning and permitting decisions that have already been made. This is particularly important for raw materials, as their extraction is tied to the respective deposit

Designing Soil Protection to Be Effective and Compatible with Industry

Effective soil protection and competitive industrial value creation are not mutually exclusive. It is crucial that the Soil Monitoring Law is implemented at the national level in a way that leverages existing structures.
The BDI therefore calls for a practical implementation with the least possible additional regulatory burden: respecting existing sector-specific laws, preventing duplicate regulation, utilizing existing data, and avoiding new permitting hurdles. For more details please find the position paper below.