Fri 24 Mar 2017 – Vienna Airport has filed an appeal to Austria’s highest courts over a ruling by a lower federal court that a new third runway would violate the country’s climate protection laws. The airport operator, Flughafen Wien, has lodged a complaint with the Austrian Constitutional Court arguing the ruling violates its guaranteed rights and freedoms to carry on a business. It has also filed an extraordinary appeal with the Austrian Supreme Administrative Court that the ruling contained serious procedural violations, inconsistent reasoning and was materially unlawful. In its judgment handed down last month, the Federal Administrative Court ruled the positive economic benefits of the airport expansion were outweighed by the potential harm to the public interest from climate change caused by higher carbon emissions as a result of increased flights. However, the airport argues national climate protection law specifically excludes CO2 emissions from flight traffic and it is anyhow only responsible for its own CO2 emissions.
The Federal Administrative Court said in its ruling a third runway would increase Austria’s annual CO2 emissions by between 1.79% and 2.02% by 2025, against the country’s 2020 transport sector emissions reduction target of 2.25% (see article). This would be contrary to national and international obligations, it found, and the short-term commercial and employment gains were outweighed by the likely economic consequences of a destabilised climate. The court also said the airport’s own actions to reduce emissions were insufficient to offset the growth of aircraft emissions from increased airline traffic.
Announcing the appeal, a member of Flughafen Wien’s Management Board, Julian Jäger, argued the court decision had been indecisive and contradictory.
“On the one hand, the court found that there would be further passenger growth at Vienna Airport, and that there is a need for an additional runway for aircraft to take off and land. However, it does not deal with the issue of where this need will be diverted if the runway is not built,” he said. Such a scenario would lead passengers to use neighbouring airports so not a single gram of CO2 would be saved, he maintained.
“CO2 emissions in aviation must be seen on a global scale and can only be regulated by international agreements. These precise regulations already exist. However, as a result of the court decision, about 30,000 jobs will not be created, extensive damage will be done to Austria as a business location and the environment will not benefit at all.”
The airport operator claims the court had also ignored EU law (Commission Regulation (EU) No 1031 / 2010) that stipulates CO2 emissions from aircraft are not to be assigned to the CO2 emissions of the airport. Under the EU Emissions Trading System, it is aircraft operators and not airports that have to present the requisite certificates, it pointed out. In addition, it argues that under existing national regulations, CO2 emissions from flight traffic are not to be included in efforts to meet Austria’s emissions reduction targets.
“Moreover, when the court refers to Austria’s climate protection law, this explicitly documents an inconceivable and arbitrary interpretation of the law,” it added. “The Austrian Climate Protection Act is only valid until the year 2020, whereas the third runway would be put into operation after 2025.
“But above all, the Austrian Climate Protection Act is not to be called upon as the basis for project approvals, but is a programme act without an external impact. In this case, the court has overtaken lawmakers and is trying to create a body of law on its own, which is diametrically opposed to valid legal regulations passed by legislators.”
The court had also failed to recognise that climate change and CO2 emissions were a global phenomenon, it said, and the global climate could not be influenced by preventing a third runway being built in Vienna at a time when around 400 airports around the world were either being newly built or expanding.
“Furthermore, the court failed to understand that obligations arising from international climate protection agreements relate to individual countries and the EU, and cannot be directly applied to individual projects without the corresponding legal underpinnings,” it added.
It also accuses the court of ignoring the “intensive” measures the airport had undertaken to mitigate its own CO2 emissions, noting it had achieved a 30% reduction in recent years, corresponding to a saving of 14,000 tonnes of CO2.
“In the light of numerous illegalities, the inconceivable interpretation of laws and the massive violation of procedural rules, especially the right to be heard, we have confidence in the proper functioning of the rule of law in Austria, and have grounds for optimism with respect to the decisions to be handed down by the highest courts in the country,” concluded Günther Ofner, another member of the Board.
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