On 25 October 2018 Parliament adopted a new comprehensive environmental package comprising:
- the Aarhus Participation Act;1
- an amendment to the Environmental Impact Assessment Act;2 and
- an amendment to the Federal Environmental Liability Act.3
Several other environment-related legislative initiatives are also underway at present (see, for example, "Will new state targets lead to reduced environmental protection?").
Although the amendments have yet to be published in the Federal Law Gazette, the new environmental package is expected to come into force by the end of 2018.
What is planned?
Aarhus Participation Act
The Aarhus Participation Act continues the implementation of the Aarhus Convention,4 based on the European Court of Justice's decision in Protect.5 The act aims to give the public concerned a say in approval procedures and subsequent review rights.
As a first step, the implementation will take place via:
- the Waste Management Act;6
- the Air Emission Protection Act;7 and
- the Water Act.8
Implementation will also be required via several other federal laws (ie, all laws with an environmental impact, including those which must be enacted by a federal state, such as the nine nature conservation laws).
The planned amendment will extend considerably the rights of recognised non-governmental organisations (NGOs) committed to protecting the environment within the meaning of Section 19(7) of the Environmental Impact Assessment Act.9
Under the Waste Management Act, recognised NGOs are entitled to public participation rights in:
- Seveso plants;10
- integrated pollution prevention and control treatment plants;11 and
- incineration and co-incineration plants.
With the planned amendment, recognised NGOs will be given the additional right to lodge subsequent complaints in the event of violations of EU environmental protection regulations – particularly the EU Revised Waste Framework Directive (2008/98/EC) – when normal treatment facilities are approved for the first time or substantially changed (with the exception of excavated soil landfills).
With the amendment of the Water Act, the legal position of recognised NGOs, as members of the public, will be extended in water law approval procedures undertaken in accordance with the EU Water Framework Directive (2000/60/EC). If a project could have a considerable negative impact on the condition of a water body, recognised NGOs will be granted participation and monitoring rights. If negative effects can be excluded, recognised NGOs will have only a right of review.
The amendments to the Air Emission Protection Act will enable recognised NGOs to submit an application for the establishment or completion of a national programme of effective measures to comply with the thresholds of the EU Air Quality Directive (2008/50/EC).
Environmental Impact Assessment Act amendment
Austria has yet to transpose12 EU Amending Directive 2014/52/EU.13 The Environmental Impact Assessment Act amendment will implement this directive,14 as well as some of the measures of the new government programme for 2017 to 202215 in order to accelerate the procedure (eg, the conclusion of the Environmental Impact Act investigation procedure will be expedited).
Further, the Environmental Impact Assessment Act amendment provides stricter rules as to who can intervene as a recognised NGO:
- Only NGOs with 100 members or more will be deemed to be recognised within the meaning of Section 19(7) of the act.
- Club associations must comprise at least five member associations.
- NGOs must prove every three years that they still meet the recognition requirements
These changes aim to halt the uncontrolled growth of recognised NGOs. However, NGOs have expressed concerns that the requirement to have at least 100 members is too restrictive.
Federal Environmental Liability Act amendment
The Federal Environmental Liability Act amendment16 stems from the European Court of Justice's decision in Folk17 and certain infringement proceedings against Austria.18 According to the European Court of Justice, the current exclusion of approved normal operations from the scope of the act's application contravenes the EU Environmental Liability Directive (2004/35/EC).
The Environmental Liability Directive excludes from the concept of environmental damage that which results from activities permitted under:
- Sections 6(3), 6(4) and 16 of the EU Habitats Directive (92/43/EEC);
- Section 9 of the EU Birds Directive (2009/147/EC); or
- Section 4(7) of the EU Water Framework Directive (2000/60/EC).
However, there is no general exception to the act's scope for purely national authorisations.
To avert liability claims resulting from nationally permitted activities, the EU Environmental Liability Directive provides for the possibility of a permit defence (for nationally permitted installations) or a state-of-the-art defence (ie, an exclusion of liability due to development risk).
The permit defence and the state-of-the-art defence are not provided for in the Federal Environmental Liability Act or the amendment. Rather, the amendment merely clarifies the term 'water damage', which corresponds literally to the definition provided for in the directive. Thus, permits that are not based on Section 4(7) of the EU Water Framework Directive will still be worthless due to the lack of permit defence.
However, the Federal Environmental Liability Act amendment aims to bring the group of persons entitled to file a law.
With the new environmental 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. In particular, the possible delays of permitting procedures, which are detrimental to businesses' needs, should be reduced.
1 Further information is available here.
2 Further information is available here.
3 Further information is available here.
4 The Aarhus Convention was ratified in Austria by BGBl III 2005/88.
5 20 December 2017, C-664/15.
6 Federal Law Gazette, BGBl I 2002/102, latest version BGBl I 2018/44.
7 Federal Law Gazette, BGBl I 1997/115, latest version BGBl I 2017/58.
8 Federal Law Gazette, BGBl 1959/215, latest version BGBl I 2018/44.
9 Federal Law Gazette, BGBl 1993/697, latest version BGBl I 2017/111.
10 Plants within the scope of the EU Control of Major-Accident Hazards involving Dangerous Substances Directive (2012/18/EU), which amended and subsequently repealed the EU Seveso II Directive (96/82/EC).
11 Plants within the scope of the EU Industrial Emissions (Integrated Pollution Prevention and Control) Directive (2010/75/EU).
12 Infringement procedure (2017/0281) for the late transposition of the EU Environmental Impact Assessment Amending Directive (2014/52/EU).
13 EU Directive 2014/52/EU amending EU Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment.
14 The need for implementation is limited, as many of the provisions of EU Directive 2014/52/EU have already been implemented by the current Environmental Impact Assessment Act. Therefore, the amendment will make mainly textual adaptations and clarifications.
15 Further information is available here.
16 Federal Law Gazette, BGBl I 2009/55, latest version BGBl I 2013/97 ("B-UHG").
17 European Court of Justice, 1 June 2017, C-529/15, Folk.
18 Infringement proceedings 2017/2118 for the infringement of Articles 2(1)(a) to (c), Articles 2 (9), and 2(13) to and the first sub-paragraph of Article 12(1) of the EU Environmental Liability Directive (2004/35/EC).
This article was first published on International Law Office
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