Section 3 of the Administrative COVID-19 Accompanying Law adapts the requirements for official acts and public communication with authorities to reflect the restricted freedom of movement and contact. This article examines how the revised version of Section 3 affects environmental law procedures (eg, water, environmental impact assessment, waste, construction and conservation).
In the context of local and personal COVID-19 quarantine measures – and the associated absences of officials and affected persons – a federal law (COVID-19-VwBG) was passed setting out special procedural regulations for administrative authorities, administrative courts, the Supreme Administrative Court and the Constitutional Court. This article discusses the implications for the legal procedures set out in the Environmental Law resulting from the new temporary COVID-19-VwBG.
Austria's new coalition government consisting of the People's Party and the Green Party recently published its programme for the legislative period 2020 to 2024. The programme is called Taking Responsibility for Austria and should make Austria a pioneer in climate protection. The Paris Agreement climate targets are to be met at all costs, while the Climate Protection Act should ensure that Austria does not exceed its CO2 budget.
Following a European Court of Justice decision concerning the air quality measurement criteria set out in the EU Air Quality Directive, individuals in affected areas and non-governmental organisations can now take direct action in Austria against wrongfully installed air quality measuring points. The Austrian Higher Administrative Court recently addressed this matter and explained how those concerned in Austria should proceed.
The Constitutional Court recently dealt with a complaint by an electric vehicle owner who had exceeded an Air Immission Protection Act speed limit. The driver claimed that his vehicle emitted no air pollutants and that the emission-dependent speed limit did not apply to him. The court disagreed. In response to this decision, the federal government created a legal exception for electric cars. However, whether all federal states will introduce an exception to the act's speed limit for electric cars remains unclear.
Parliament recently adopted a new comprehensive environmental package comprising the Aarhus Participation Act, an amendment to the Environmental Impact Assessment Act and an amendment to the Federal Environmental Liability Act. With the new package, the legislature has attempted to manage the difficult act of balancing the necessary legal adaptations of administrative procedural law with EU law and creating a business environment that is nevertheless competitive.
The Constitution provides so-called 'state targets', which are broadly diversified and include state targets on sustainability. The approval procedure for the third runway at Vienna International Airport has prompted the government to strengthen Austria as a business location. This should be achieved by amending the Federal Constitutional Law on Sustainability which, among other things, contains a state target on creating comprehensive environmental protection.
In general, the Austrian legal system does not give individuals the right to force the legislature to act in a specific way or pass concrete laws. Normally, only political pressure can combat inaction. However, when it comes to air quality, things are different. The Austrian Higher Administrative Court has declared that individuals who live in a territory where the air pollution limits are exceeded have the right to demand that measures under the Air Immission Protection Act be enacted or amended.
The first update and review of Austria's national water management planning instrument has revealed that the objectives of the EU Water Framework Directive will be achieved neither to their full extent nor in a timely manner. Nonetheless, the National Water Management Plan 2015 is a useful and comprehensive document that contains extensive information for all stakeholders and sets out the next steps to achieve the ultimate goal of restoring Austria's water bodies.
The Constitutional Court recently reached a landmark decision and overturned the Federal Administrative Court decision which had rejected the permit for a third runway at Vienna International Airport on the grounds of climate protection and land use. This decision is significant in that it has far-reaching consequences for many other projects beyond the scope of the third runway. It is also relevant to Austria as a business hub.
The Federal Administrative Court recently hindered the plans for a third runway to be built at Vienna International Airport, explaining that the positive aspects of the project could not justify the extra carbon dioxide pollution. The decision was reached despite the court conceding to the fact that air traffic will increase in the future and thus a third runway is necessary. This may be the first time that any court worldwide has rejected a project due to climate protection.
The Federal Administrative Court recently addressed whether the party to a winning project in a conflict procedure was entitled to claim rights in the environmental impact assessment for the inferior project. The court ruled that, on the one hand, the legal standing of a party in a conflict procedure is not strictly restricted to that procedure. On the other hand, the court found that being party to a conflict procedure does not guarantee unlimited legal standing in the approval procedure of the other project.
The Federal Administrative Court recently confirmed that neighbours in earlier cases can enforce an environmental impact assessment only in subsequent approval proceedings. Further, the court has clarified that neighbours do not have party status in declaratory decision proceedings. As the legislature had failed to regulate earlier cases, this decision is a valuable contribution to procedural law.
The European Court of Justice recently ruled that the exclusion of neighbours from challenges to declaratory decisions relating to environmental impact assessments (EIAs) is incompatible with EU law. Following this decision, the Federal Administrative Court has recently held that neighbours can now enforce an EIA in subsequent approval proceedings. Further, neighbours can now appeal against negative declaratory decisions.
Under a recent bill to amend the Waste Management Act 2002, the federal government will be granted a statutory preferred pledge for all costs incurred when securing and remediating contaminated properties. This pledge will take priority over all other liens and property-related charges.
Austria recently implemented two federal laws in order to implement EU Directive 2015/41/EC, which provides member states with the possibility of restricting and prohibiting the cultivation of genetically modified organisms (GMOs) in their territories. Austria's federal legislature has also enacted a framework law on genetic engineering, which highlights the broad political consensus in favour of prohibiting the cultivation of GMOs in Austria.
Despite Austria's more stringent Water Law, the European Court of Justice's interpretation of the 'no deterioration' clause will likely further restrict the permissibility of projects that may affect the ecological or chemical status of bodies of surface water or groundwater. Assessment efforts during the preparation of projects and approval procedures will significantly increase – in particular, with regard to the question of whether a better environmental option exists.
The third pillar of the Aarhus Convention establishes a general right to bring a case before the courts if national environmental regulations might be subject to contravention. However, the implementation of the third pillar has caused controversy, and in July 2014 the European Commission initiated proceedings against Austria for non-compliance. As the European Union has provided no precise instructions for implementation, this suit is questionable.
The agriculture, forestry, environment and water economics minister recently presented a draft law to amend the Chemicals Act and the Biocidal Products Act. The proposed amendments complete the standardisation of the classification, labelling and packaging of substances and mixtures. The amendments simplify the term 'toxin' and shift the current toxin purchase permit system to a simplified system of toxin purchase certificates.
In a recent case, the Ministry of Economy authorised a crude oil exploration company to undertake exploratory drilling for natural gas and mineral oil within an Austrian municipality. The municipality challenged the authorisation on the grounds that the exploratory drilling was subject to an environmental impact assessment. The Supreme Administrative Court referred the matter to the European Court of Justice for a preliminary ruling.