A potentially ground-breaking climate change decision, believed to be the first one to hold a country legally responsible for its commitments to the Paris climate agreement, has been overturned in Austria.
The case revolved around the proposed addition to a runway at the Vienna International Airport, which was blocked in February by a federal administrative court that ruled the runway would increase carbon emissions and thus ran contrary to the country’s ambitious promises to the international climate accord. But in June, Austria’s Constitutional Court reversed the decision, handing climate activists—as well as local residents and the Vienna City Council—a defeat.
The airport case is one of several cases around the world in which plaintiffs are opposing infrastructure projects and other government actions on the grounds that they violate constitutional rights. The Vienna argument was unusual in using the country’s Paris pledge, as well as its ambitious national climate policy, as the basis of the argument.
The country’s climate laws, in addition to its Paris pledge, require reducing carbon emissions by at least 40 percent by 2030 compared to 1990 levels. A federal administrative court seemed to strengthen these policies when it rejected the plan for a third runway at Vienna International Airport because it would increase emissions and conflict with its mitigation target. It was likely the first time a court has considered one of those pledges, which are voluntary as part of the United Nations agreement, legally binding
On June 29, Austria’s Constitutional Court ruled that the lower court had erred in blocking the runway and ordered the lower court to issue a new decision.
The runway expansion, though, remains strongly opposed by local residents, the City Council and environmental groups on a number of grounds, including noise and air pollution, bird and soil protection and climate change.
Dr. Wolfram Proksch, attorney for four of the opponents to the airport expansion, said that his clients would continue to fight it and are considering an appeal to the European Court of Human Rights.
The lower court’s initial decision had been contentious, given that it would require developers of future infrastructure projects to take carbon emissions into account and to ensure that such projects are consistent with the country’s mitigation pledge.
Franz Wirl, a professor at the University of Vienna and chair of Industry, Energy and Environment at its department of Business Administration, called the initial ruling “outright nonsense,” arguing that it is impossible to fight climate change one project at a time.
“There’s only one way,” he said, to reduce emissions and that is, “to make the people pay—you and me—by taxes. There’s no other way. You cannot expect 7 billion people individually to reduce and sacrifice.”
Erika Wagner, head of the Institute for Environmental Law at the University of Linz warned against “pure propaganda” being put out by big industry. “It would be completely wrong to dramatise this verdict and to extrapolate it to all major industrial projects,” she said, and added that some industries, such as renewable energy, could even see an economic benefit.
Michael Gerrard, Professor at Columbia Law School and director of the Sabin Center for Climate Change Law, said while the Austrian case would not be a precedent in the U.S., “it is part of an interesting global trend.” He stressed that “litigation on a project-by-project basis was a tool, not the only tool,” that a carbon tax would be a better approach, but that the two were not an “either/or choice.”
The Vienna airport appealed the initial decision on the grounds of procedural violations, inconsistency in reasoning and interpretation of the law. It argues that under a 2012 European Union (EU) law, aircraft emissions are not counted as emissions from airports, and thus the state is not responsible for them. They are instead counted in a separate EU-wide Emissions Trading System (ETS). However, in 2013, ETS was temporarily reduced to cover only intra-European Economic Area (EEA), to allow for the negotiation of an international agreement governing aircraft emissions.
Last October, the International Civil Aviation Organization agreed to create an emissions trading system, called the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA), which aims to stabilise CO2 emissions at the 2020 level and to become operational in 2021.
Vienna’s third runway is planned to be operational after 2025, when CORSIA and a new ETS should be in force. The Vienna airport also claimed that there are currently approximately 400 new or expanding airports across the globe (including several within the EU) and that blocking expansion in Vienna alone will not have any impact on emissions.
Although Violeta Bulc, the EU commissioner for transport, said in February that, “We are serious about achieving carbon neutral growth for aviation, and we will provide technical and financial assistance to make it happen,” it appears from the Vienna case that there is little guidance for, and coordination between, airport authorities both within the EU and globally.
In reversing the lower court decision, the Austrian Constitutional Court ruled that only landing and take-off emissions should be calculated for Vienna airport; that the Federal Court had incorrectly invoked international conventions; and that although environmental protection must be taken into account in approving projects, it does not take absolute precedence. The case has been returned to the Federal Court for it to make a new decision.
Court President Gerhart Holzinger emphasized that the ‘cruise emissions’ for a flight from Vienna to New York must be addressed at an international level and were not the sole responsibility of the Vienna Airport.