In February 2017 the Federal Administrative Court hindered the plans for a third runway to be built at Vienna Airport, explaining that the positive aspects of the project could not justify the extra carbon dioxide (CO2) 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.

Facts

The Federal Administrative Court's decision regarding the environmental impact assessment (EIA) proceeding was based on the following:

  • The construction of a third runway would be contrary to Austria's national and international obligations to mitigate climate change by decreasing its annual CO2 emissions.
  • The amount of land used for the project would be excessive (only one-third of the expected 661 hectares would actually be used, while 80 hectares would be used for compensatory measures).

The airport, which has been planning the construction of the runway for 10 years now, together with the government of Lower Austria, have appealed this decision before the Constitutional Court and the Higher Administrative Court.

Decision and considerations

The decision triggered broad political and legal discussions about the significance of climate protection and questioned the need for infrastructure and other major projects for several reasons.

The court was of the (disputed) view that Section 71 of the Aviation Law allows a court to make a judgment based on its discretion as well as on a balancing of interests. Thus, according to the court, Section 71 can be used to address climate issues in decisions.

However, CO2 emissions and climate change are global phenomena, and the rejection of specific infrastructure projects is unlikely to save the global climate. International climate protection agreements oblige the contracting parties (eg, contracting states and the European Union) – not the Federal Administrative Court – to take action. The national and international measures in place (eg, the planned Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) and the EU Emissions Trading System (ETS)) are effective.

At the EU level, there is a two-pillar system made up of the ETS, which regulates aircrafts and airlines, and the Effort Sharing Decision, which regulates airports. The ETS sets a cap on the number of certificates issued with regard to the amount of greenhouses gases that may be emitted by all participating companies.(1) The number of these certificates decreases each year. The Effort Sharing Decision establishes binding annual greenhouse gas emission targets for sectors that are unaffected by emission trading. Therefore, airports are responsible only for emissions that they can influence (eg, the vehicle fleet on the airport apron). Vienna Airport offered a set of measures to reduce these specific emissions despite the increase in traffic.(2)

Unlike the ETS, CORSIA – which was adopted by the International Civil Aviation Organisation in October 2016 and will enter into force in 2021 – is a so-called 'offsetting' system, wherein airlines must buy emission units generated from other projects in different sectors to stop the increase of CO2 emissions by 2020. The pilot phase and the first phase are voluntary and will last until 2026. This will be followed by a mandatory period until 2035.(3) All EU member states will take part from the beginning.

Comment

Ultimately, the court confused the international and European climate protection systems by attributing emissions from aircrafts and airlines to airports; in reality, airports are subject to the Effort Sharing Decision, whereas aircrafts and airlines are subject to the ETS and CORSIA.

The decision only transfers the CO2 emissions to other airports. Further, it leads to a higher level of CO2 emissions through the generated need for additional detours and intermediate landings without considering the project's positive effects (eg, the creation of 40,000 jobs in the region, increased tax revenues, a higher level of flight safety and maintenance of international connections and international organisations).

Austria's politicians and economists are eagerly awaiting the Supreme Court's decision regarding the third runway. Although the ruling will have an impact on this particular EIA proceeding, the discussion about the relevance of climate change in infrastructure project authorisations has only just begun.

For further information on this topic please contact Monika Romaniewicz-Wenk or Christoph Jirak at Schoenherr Rechtsanwälte by telephone, (+43 1 53 43 70) or email (m.romaniewicz-wenk@schoenherr.eu or c.jirak@schoenherr.eu). The Schoenherr Rechtsanwälte website can be accessed at www.schoenherr.eu.

Endnotes

(1) https://ec.europa.eu/clima/policies/ets_en.

(2) https://ec.europa.eu/clima/policies/effort_en.

(3) www.icao.int/environmental-protection/Pages/A39_CORSIA_FAQ2.aspx.

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