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23 June 2008
The Federal Act on the Protection of the Environment came into force on January 1 1985. Article 9 provides a legal basis for environmental impact assessments. Since 1985 various minor revisions to the act have been made. The most recent became effective on July 1 2007, introducing Articles 10(a) to 10(d). Although the act has not been disputed in principle since then, minor issues have arisen, particularly concerning the right of particular organizations to appeal against certain projects.(1) Non-governmental organizations (NGOs) are entitled to object to decisions regarding building projects that require an environmental impact assessment. This right has existed since the introduction of the act.
In some politically and economically controversial cases, the NGOs’ right to appeal can result in delays and additional costs to building projects. Furthermore, one cantonal section of the Swiss Traffic Association is especially active and frequently challenges parking facilities of large shopping malls. During the past few years, various cases have become public in which builders agreed to comply with certain building and utilization restrictions that hardly could have been ordered by a public authority. For example, by accepting a number of parking spaces that was significantly lower than public authorities could have ordered or by accepting control systems that require strict surveillance of traffic flow: if the agreed maximum amount of annual vehicle movement is exceeded, penalties in favour of the traffic association become due.
A recent appeal by a different NGO was particularly controversial and was widely debated politically. The organization is entitled to appeal against projects, especially in the field of preservation of Alpine regions. It appealed against a new soccer stadium in Zurich. Although the relevant delays were ultimately not caused by that particular organization, the stadium is now unavailable for the European soccer championship co-hosted by Switzerland this summer.
Occurrences like these made the issue political. In particular, the federal government requested a detailed report about whether the NGOs' right to appeal has a positive effect on the environment.(2) As a result, both the act and the organizations’ right to appeal have been subject to a thorough revision. Although implementing ordinances have yet to be issued, the modifications to statute are detailed enough to allow immediate application of the new rules.
In addition, the Federal Parliament recently discussed excluding the organizations’ right to appeal in all cases where decisions are based on democratic polls. The federal government supports this initiative, as it is supposed to prevent private organizations from undertaking public authorities’ functions in democratically approved projects. Even though this might help prevent delays, Parliament recommends that voters reject this initiative.
The latest revision covers the following points:
It is not yet clear whether the revised law will result in an acceleration of proceedings which are subject to an environmental impact assessment or where organizations are entitled to appeal against certain points.
For further information on this topic, please contact Max Walter or Michael Lips at Pestalozzi Lachenal Patry by telephone (+41 44 217 91 11) or by fax (+41 44 217 92 17) or by email (firstname.lastname@example.org or email@example.com).
(2) This expert opinion from 2000 about the consequences of the organizations’ right to appeal and statistics about the success of organizations’ right to object before the Federal Supreme Court is available at www.bafu.admin.ch/php/modules/shop/files/pdf/phpiog7BF.pdf. See also the Federal Council’s report dated February 18 2004 (BBl 2004, p 1611) and other parliamentary and Federal Council’s reports issued in Summer 2005 (BBl 2005, p 5351ff and 5391ff).
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