Climate Justice Denied over Vienna Airport Extension

It would have been a historical ruling in favour of the green future of Europe, and indeed the world. But on July 3, 2017 Austria’s Federal Constitutional Court, the highest judicial authority, ruled that climate change could not be a concern dealt with by the prevalent laws regarding the case of the planned third airstrip at Vienna International Airport. While the Federal Administrative Court will have to deal again with the case, the Supreme Court effectively ruled climate change out of any further legal considerations.

This is indeed a heavy setback for climate change litigation, but strictly a sound verdict, Gregor Schamschula, an environmental lawyer, commented.  Schamschula works for the Austrian Ökobüro – Alliance of the Austrian Environmental Movement, a member of the European Justice and Environment Network. The constitutional court ruled that climate change is not a concern covered by the Aviation Act under question, so it cannot be taken into account, he explained.

Earlier this year, the Federal Administrative Court had decided against the construction of a third airstrip at Vienna’s airport, delivering a victory for environmental considerations over any expected financial returns. However, while environmental groups celebrated the progressive decision, critics remained worried about its socio-economic consequences for the already strained job market in Vienna as well as Vienna’s global standing as an international hub. The recent cancellation was thus welcomed by industrialists: Thomas Salzer, president of the Industrial Federation commented that Austria needs national objectives that adhere to the goals of growth, employment and Austria’s standing as a competitive industrial location – next to those already enshrined that regard the protection of the natural environment, the climate and animals.

The courts’ rulings

On 29 June, Gerhart Holzinger, the president of the Austrian Constitutional Court, opened his official announcement of the court’s ruling with the substantiation that the previous ruling of the Federal Administrative Court against the expansion of the Vienna International Airport had deprived the plaintiffs of their right of equality before the law. The Administrative Court had misjudged the legal position and thus based its judgement on an erroneous interpretation of legitimate considerations in the interpretation of the law in question, that is the Aviation Act.

Source: Verfassungsgerichtshof vfgh (Austrian Federal Constitutional Court)

Gregor Schamschula from Ökobüro explains that the cancellation of the ruling follows the established jurisdiction of the Constitutional Court. Only arguments that are subject to the law in question are to be heard, and the Aviation Act only implies arguments such as aviation and public security as well as other related issues. To his surprise though, “the Constitutional Court did not see climate change and its impacts as something that poses a threat to public safety, health and private property, even though the Federal Administrative Court had at lengths discussed the harmful effects which might arise due to flooding, draught and other extreme weather conditions.”

Back in February, the Federal Administrative Court had ruled against allowing the Vienna International Airport to build the third airstrip. The decision was based on the EU-Charter, the Austrian Federal Constitution and the provincial constitution of Lower Austria, the province in which the airport is situated. In all three, Austria clearly sets forth the protection of the environment as central to the public interest. The administrative judges had argued that the expansion was against the public interest of mitigating the negative consequences of climate change, specifically citing the inevitable increase in CO2 emissions that would be incurred by increased air traffic from an expansion. Furthermore, the lower court had concluded that such an endeavour would destroy valuable agricultural land. The expected positive socio-economic impacts of the project were thus seen as secondary to these environmental concerns.

However, the Constitutional Court has now ruled that the Aviation Act in fact does not allow for considerations with regard to climate change as a public interest, nor do Austria’s national objectives grant priority to environmental interests. It also concluded that the Federal Administrative Court’s earlier judgement had relied on a miscalculation of CO2-emissions that would result from an expansion of the airport. According to the Constitutional Court’s own expert evidence, only emissions produced during landing and take-off (LTO-emissions), and not the “cruise-emissions”, are legitimate scientific grounds for the case in question.

Austrian Constitutional Court: the Aviation Act does not allow for considerations regarding climate change as a public interest.

The Greens, who have been advocating against the expansion of the airport ever since the project was first brought up in 2002, celebrated the earlier ruling as historical. They were supported by the populist Freedom Party of Austria, which has argued that the project would have increased both local noise and air pollution and devalued real estate in the adjacent areas as well. 

But the reaction against the original pro-environment ruling was overwhelming. It unified Airport management, political parties and regional governments directly affected by and involved in the project along with the conservatives, led by the People’s Party of Austria. The social-democratic Minister of Transport, Jörg Leichtfried, voiced concerns about the socio-economic impacts of the decision to cancel the third runway for Vienna and Lower Austria, and Vienna’s long-standing social-democratic mayor, Michael Häupl, was worried that Vienna could forfeit its attractiveness as a popular location for international conventions. It is important to note that the municipality of Vienna itself holds 20% of the Vienna Airport Corporation, which will profit from any expansion.

Source: System change not climate change

On a regional level, the provincial government of Lower Austria with its then outgoing governor Erwin Pröll was not pleased at all with the earlier decision and immediately announced his intention to appeal. This regional government and the director of the Vienna International Airport, Günther Ofner, purported that the approval of the third airstrip would create 30,000 jobs, a statement which played perfectly into popular sentiments of insecurity during an increasingly strained job market and which was geared to raising hopes that the expanded airport would have done just that.

Bias and accusations

The Constitutional Court’s decision put a full stop to the heated debate regarding not only the impact the ruling will have on Austria’s economy but also the role of the courts in ruling in favour or against economic and environmental concerns. The original ruling of the Administrative Court seemed in line with the EU’s new directive and the work Austria clearly has on its plate in terms of reaching these goals. Not surprisingly, however, many of those in favour of the project to expand Vienna International Airport saw it as a clear overreach of power and an irresponsible bias on the part of the court. Provincial governors, confronted with the reality that their discretionary power might be imperilled by independent courts, voiced their protests against it in an official letter to Chancellor Christian Kern requesting him to curtail provincial-level administrative courts’ competencies with regard to questions on local development.

Tensions ran high when two of the administrative judges were incriminated via the Austrian prosecution’s “Whistleblowing Hotline” by an anonymous person. The accusation: they were biased due to their previous engagement as attorneys in the Ministry of Environmental Protection and as general secretary of the Federation of Land and Forestry Union. The move was immediately criticised by the well-respected legal expert Heinz Mayer. In an interview with Radio Ö1, he stated, “I was quite bewildered that such a serious incrimination, which stands under criminal law, was raised.” Similarly, president of the bar association, Rupert Wolff, objected to methods of discrediting judges after the announcement of a ruling, particularly when this is done under the protective shell of anonymity.

Politicians and legal experts had voiced their concerns with regard to the Administrative Court’s decision to exclude a regular appeal at the level of the Federal Constitutional Court. But in fact, notwithstanding procedural hurdles, the plaintiffs successfully appealed against the decision. Surprisingly the appeal, which was expected to take two years, was finalised within only three months.

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