The findings of the Federal Administrative Court on the “third runway”

An assessment by GLOBAL 2000

Background

On February 2, 2017, the Federal Administrative Court published its findings on the “third runway”, stating that construction of another runway in Vienna could not be approved. The judges rated the public interest of protection against the negative consequences of climate change greater than the public interest of realising the project.

This judgement led to fierce reactions. The Austrian Economic Chamber labelled the decision “unjustified and damaging Austria as a business location” and continued by saying that the court had “exceeded its authority”. However, this demonstrates a lack of legal understanding: the court’s competence is clearly laid out in the 128-page judgement:

“The construction or expansion of the airport can be approved only when (among other reasons) this does not contradict any other public interests according to § 71 para 1d LFG (Aviation Act) and where a public interest exists within the meaning of § 71 para 2 LFG (Aviation Act) (III.4.5.1.). Therefore the various public interests need to be weighed against one other.”[1]

Therefore the judges were obliged by law to weigh the different public interests against one another. Other commentators argued that the legal provisions cited, such as the Climate Protection Act, could not be applied to individual projects. Politics should decide about climate protection, but not the courts.[2] It is correct that the Climate Protection Act does not foresee a ban on the construction of airport runways, and if it did there would be no need for further discussion. But this was not the claim made by the judges; instead they made every effort to consider the opposing public interests. However, when determining public interest, the judges used as guidance the fact that climate protection is enshrined in the constitutions of Austria, of Vienna and Lower Austria, that a Climate Protection Act and EU-wide obligations exist, and that Austria has ratified the Paris Climate Protection Agreement.[3]

Finally the judges made a landmark decision and decided in favour of climate protection and preserving the basis of our existence over the public interest of improved air traffic infrastructure in the east of Austria.

The public interest of improved air traffic infrastructure

The Federal Administrative Court recognised the public interest in an improved air traffic connection and accepted the assessment that air traffic will grow significantly. However, GLOBAL 2000 believes this assessment is questionable, as a decrease in the number of take-offs from Vienna Airport at Schwechat has been observed over recent years. Whereas 266,206 flights were registered in Vienna in 2008, in 2015 this figure had fallen to 226,811, representing a decline of around 40,000 flights. However, the number of passengers rose during this period.[4]

A large share of the international flight connections are to cities in Austria’s neighbouring countries, destinations which can also be reached via direct train connections. Consequently, a greater number of fast, comfortable and affordable rail connections could reduce this flight volume significantly. A strong increase in air traffic should not be understood as a law of nature, but as something which can be shaped by a policy of smart incentives and offerings.

Public interest of creating jobs

The court also considered job creation as a matter of public interest. However, it was not possible to assess this issue comprehensively, because there may also be relocation and displacement effects which could not be assessed:

“It was not possible to assess the extent to which realisation of this project could cause the loss of jobs in other modes of transport or in other regions.”[5]

GLOBAL 2000 is of the opinion that it is highly likely that it would be the railways which would suffer as the result of airport expansion. A large share of the destinations flown by international flights from Vienna Airport are cities in Austria’s neighbouring countries which can also be reached via direct train connections. Compared to the railways, air traffic enjoys favourable taxation terms, does not pay fuel (kerosene) taxes, does not pay value added tax on tickets, and the airport itself is exempt from property tax. No other industry receives such generous tax relief, costing the Austrian taxpayer over €500 million per annum.[6] Consequently, air traffic enjoys an unjustified competitive advantage compared to other more sustainable mobility options.

If there is no expansion at Vienna Airport then this would open the door to developing more sustainable mobility; jobs can be equally created by improving the rail infrastructure as they can by expanding the airport.

Public interest of climate protection

One of the main issues focused on by the Federal Administrative Court was to weigh the public interests of climate protection and greenhouse gas emissions (GHG) because they had been barely considered in previous instances:

“During the proceedings the prosecuted authority failed to mention or consider GHG emissions. However, the GHG emissions must be taken into consideration.”[7]

The findings then state there will be an increase in Austrian greenhouse gas emissions of 1.17 million tons of CO2.[8] GLOBAL 2000, however, considers this estimate to be far too conservative. When the much greater greenhouse gas effect of emissions at higher altitudes is taken into consideration, then the climate-damaging effect reaches over five million tons per year.

In addition to the Climate Protection Act[9], EU and international obligations, the Federal Administrative Court also takes into consideration the expected climate change consequences in Austria, and the population’s interest in reducing greenhouse gas emissions:

“The remarks made under III.3.6 above show that climate change is already taking place in Austria and will have far reaching impacts on humans, animals, plants and the environment. A failure to meet reduction targets will result in significant property value losses, job losses, in particular in tourism and agriculture and forestry, flooding disasters and a sharp increase in extremely hot days. Furthermore, significant production losses in agriculture and forestry must be expected. The consequence will be the loss of animal and plant species as well as additional human deaths and severe health damage. Serious damage to Austrian agriculture must be expected.”[10]

Therefore the court stated that “the public interest of constructing the third runway does not prevail.”[11]

Conclusions

GLOBAL 2000 believes that the Federal Administrative Court has conducted a very thorough assessment. That the judgement caused such surprise is owed to the fact that a different decision was expected. While there is no law in place banning the construction of runways in Austria, there is also no inherent right to do so. Thus the weighing of opposing public interests is necessary. Austrian politics has recognised the public interest of climate protection, and has enshrined this interest in various forms of legislation. This is correct, because the population and the economy would be at risk of severe damage if projects such as expanding Vienna Airport were realised. Now is the time to create jobs by investing in sustainable mobility and improving the availability of clean, convenient and affordable mobility solutions for Austria’s population and its economy.

February 2017

For questions please contact:

Johannes Wahlmüller

Campaigner Climate/EnergyGLOBAL 2000

mail:

tel.: 01 812 57 30-41

mobile: 0699 14 2000 41

[1]See Federal Administrative Court BVwG (2017), p. 120

[2]See e.g. Eric Frey in Der Standard (2017): Judges´ No to Runway: Green und presumptous. accessed February 13 2017.

[3]Although such state objectives are primarily directed towards the legislator, those constitutional provisions must be taken into account as guidance within the framework of joint application (See the judicature issued on the previous provision of the Constitutional Law Sustainability, the Constitutional Law on the General Protection of the Environment, BGBl. Austrian Official Journal No. 491/1984: Fed. Admin. Court 25.01.1996, 95/07/0230, Fed. Admin. Court Coll. 14.323 A/1995, and Const. Court Coll. 12.009/1989 and 14.895/1997 with further instructions; Environmental Senate 21.03.2002, US 1A/2001/13, Arnoldstein; moreover Gutknecht in: Korinek/Holoubek [ed.], Federal Constitutional Law - Environment; Kerschner [ed.], State objective of environment [1996]). State objectives, however, are primarily directed towards the legislator, but can be applied in the interpretation of non-defined legal terms (such as “public interest”) as a maxim for interpretation (See Budischowsky, Understanding water supply as a state objective, Recht der Umwelt RdU 2015/113 p 182; Köhler, Nature protection law 2 , p. 24 with further evidence; Fed. Admin. Coll. NF 13.466 A/1991). (p. 125)

[4]See Statistics Austria (2017), accessed 13.2.2017

[5]See Fed. Admin. Court (2017), p. 117

[6]See. Austrian Institute of Economic Research WIFO (2016): Environmentally-relevant state aid and taxes in the areas of energy and traffic

[7]See Fed. Admin. Court (2017), p. 117

[8]See Fed. Admin. Court (2017), p. 52

[9]See Fed. Admin. Court (2017: By adopting the Climate Protection Act, Austria set the goal of decreasing the total sum from 51.5 to 48.8 million t GHG equivalents; this would be a 5.24 % reduction. The transport sector should reduce from 22,2 % to 21,7 %; this would be a reduction of 2.25 %. The construction and operation of the third runway however will lead to an increase by 1.79 % (assuming the scenario WEM) and 2.02 % respectively (assuming the scenario WAM) of the total GHG emissions in whole of Austria (See item III.3.6.6.).

[10]See Fed. Admin. Court (2017), p. 117

[11]See Fed. Admin. Court (2017), p. 127