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Public Participation in Environmental Decision Making The situation in Austria

Public Participation in Environmental Decision Making The situation in Austria. Dr. Fritz Kroiss. Civil Law in Austria I. Action for Injunction in the case of emissions Exception for plants with a permit. § 364 and 364a ABGB (Austrian Civil law code)

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Public Participation in Environmental Decision Making The situation in Austria

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  1. Public Participation in Environmental Decision MakingThe situation in Austria Dr. Fritz Kroiss Zagreb, 17.3.2007

  2. Civil Law in Austria I • Action for Injunction in the case of emissions • Exception for plants with a permit. • § 364 and 364a ABGB (Austrian Civil law code) • In the case of permitted plants only damage compensation. • Very few cases • Not used by NGOs because of court fees and cost risks Zagreb, 17.3.2007

  3. Mochovce & Temelin Cases • The Austrian Green Politician „Eva Glawischnig“ filed an Action for Injunction against the operator of the Mochovce Nuclear Power Plant in Slovakia • The Government of Upper Austria filed an Action for Injunction against the operator of the Temelin Nuclear Power Plant in Czech Republic • These actions were not successful so far... • An Action for Compensation regarding air pollution from dust (fine particles) is ongoing Zagreb, 17.3.2007

  4. Environmental Liability • No comprehensive legislation in Austria so far. Drafts from the 1990s were not passed. • New draft law prepared to implement EU Environmental Liability Directive. • Sectoral provisions on liability will remain in force. • The new draft law gives special rights to NGOs • These rights do not correctly implement the EU Environmental Liability Directive (too restrictive) Zagreb, 17.3.2007

  5. Liability Cases • Liability for contamination from waste disposal (dump sites) is the most frequent type of case • Several cases deal with the question who should pay for the clean up • Article 31 para 3 of the Austrian Water Act • It is not relevant if the activity has an environmental permit or not • It is not relevant if the operator was negligent or not • What counts is the threat of the groundwater • If the polluter cannot be identified the land owner has to pay the clean up costs!!! Zagreb, 17.3.2007

  6. Criminal law – European Dimension I • Commission Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law COM (2001) 139, adopted by the Commission on 13 March 2001. Zagreb, 17.3.2007

  7. Criminal law – European Dimension II • Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law • The European Commission decides to take action in the Court of Justice • The Advocate General of the European Court of Justice delivered his conclusions on 26/05/2005 Zagreb, 17.3.2007

  8. Criminal law – European Dimension III • The Advocate General recommends to declare the Council Decision as in breach of the EC treaty. • Decision of the ECJ of 13.9.2005 (Rs C-176/03) declared Council Decision as null and void. • EC Commission has prepared a new proposal recently, see COM(2007) 51 final Zagreb, 17.3.2007

  9. Criminal Law - Austrian Dimension • Convention on the Protection of the Environment through Criminal Law (Strasbourg, 4.XI.1998). • Convention requires three ratifications for its entry into force. Estonia is the only country which has ratified so far. • The mentioned proposal of the EC –Commission reflects this convention to a large extent • Austria already amended its criminal code to meet the requirements of the Convention Zagreb, 17.3.2007

  10. Environmental Crimes in Austria • Art. 180, Art. 181 to 181e, 182, Art. 183 to 183b of the Austrian Criminal Code • Largely amended in 2006 • What constitutes an act of criminal offence? (both deliberate and negligent!) • impairment of the environment (General), • treatment and shipment of waste impairing the environment • Operation of industrial plants impairing the environment • etc. Zagreb, 17.3.2007

  11. Criminal law cases in Austria • Number of complaints declined from 332 in 1994 to 207 in 2002 • Number of sentenced persons is between 19 (1995) and 35 (1997) • NGOs normally do not use criminal law as a tool in campaigning • Number of administrative offence cases are much higher and much more relevant Zagreb, 17.3.2007

  12. EIA Law in Austria I • Law on EIA from the year 2000 is the most prominent piece of Environmental law in Austria • Since 2005 NGOs have legal standing in EIA procedures • NGOs have to register at the Ministry for Environment if they want to participate in EIA procedures Zagreb, 17.3.2007

  13. EIA Law in Austria II • The Citizen Group (Bürgerinitiative) under Austrian EIA legislation: • Minimum 200 persons from respective Municipality or neighboring Municipality • Signing one identical statement • Takes part in the EIA procedure with legal standing • Can file complaints even to the Administrative and the Constitution Court Zagreb, 17.3.2007

  14. EIA Law in Austria III • Shortcomings of Austrian EIA law: • No Public Participation in Screening and Scoping • Sometimes very formalistic court decisions, especially in road construction projects • Attempts to avoid EIA, e.g. “salami slicing” practice • Cumulative effects Zagreb, 17.3.2007

  15. Air & Waste Law in Austria • Since a few years Air Protection Legislation has high degree of Public Attention, as Austria is exceeding some air related environmental quality standards (“imissions”), e.g. dust (“PM 10”) • Waste Legislation is not very present in the media, but a highly relevant for companies because of costs Zagreb, 17.3.2007

  16. Nature Protection Law in Austria • Nature Protection Legislation became an issue since Austria´s EU Accession in 1995: The Natura 2000 Protection System of the EU brought about major improvements in the field of Nature Conservation, which provoked opposition of land owners and farmers • Several infringements procedures in front of the European Court of Justice, many of them brought to the Commission by NGOs. Zagreb, 17.3.2007

  17. Environmental Law Service of OKOBURO • Most requests sent to OKOBURO concern EIAs for road projects • OKOBURO receives financial support from the Austrian Ministry for Environment to maintain Environmental law service • OKOBURO provides information texts on environmental legislation on its Webpage and answers individual requests • Cooperation in the network “Justice and Environment” with NGOs from CEE countries Zagreb, 17.3.2007

  18. Natura 2000 case I • Magna Real Estate (Mr. Frank Stronach) purchased land of 250 ha in the municipality of Ebreichsdorf in 1996 to develop the project of a so called thematic park. • The leisure park should comprise a horse racetrack plus a 200 m high building on the shape of a globe. • The site was in the process of designation as a Natura 2000 site. Zagreb, 17.3.2007

  19. Natura 2000 case II • EC Commission was informed about the case by several NGOs and citizen’s groups. • In November 2000 the Commission sent a formal letter of inquiry to the Austrian Government: The definition of the boundaries of the respective Natura 2000 site had not been performed in accordance with scientific criteria. • Parts of the land, which should have been added to the Natura 2000 zone, were excluded from it to allow the construction of the project possible. Zagreb, 17.3.2007

  20. Natura 2000 case III • In 2001 necessary permits were issued, ignoring the ongoing investigations of the EU Commission on the case. • An expert commission put together by the Austrian Government convinced the EU Commission to stop investigations and to close the case although violations of the legislation were obvious • The so called MAGNA RACIO horse race tracks opened on 4th September 2004. Zagreb, 17.3.2007

  21. EIA case I Spielberg Project: • Motor race track in Styria • Group of investors want to extend and upgrade the race track • Additional constructions (leisure park, etc.) • Problematic for local population because of noise • Positive EIA decision from 1st instance authority Zagreb, 17.3.2007

  22. EIA case II • Neighbors bring in complaint against the 1st instance decision • Appeal body (“Umweltsenat”) refuses EIA approval • Government amends EIA act to push through the project • Project modifications • New EIA prepared and new procedure has started recently Zagreb, 17.3.2007

  23. Conclusions regarding Austria • EIA and environmental permitting most relevant for NGOs • Legal standing for NGOs and Citizens´ groups (Bürgerinitiativen) in EIAs • Political pressure often more effective then legal remedies • Environmental Law Service of OKOBURO to support small NGOs very effective • Cooperation with NGOs from CEE and SEE important and already ongoing Zagreb, 17.3.2007

  24. EIA in Serbia I • New EIA law from 2004 (Off. Gaz. 135/2004) • Very broad public participation arrangements: Public Concerned has to be consulted in Scoping, Screening and in EIA elaboration • Legal standing of the Public Concerned: Right of appeal against Screening and Scoping Decision and against approval of EIA • Public presentation and debate on EIA study obligatory • Further info: www.ekoserb.sr.gov.yu Zagreb, 17.3.2007

  25. EIA in Serbia II Still problems with full implementation of the law: • Authorities and Investors say that Public Participation at the mentioned three stages is too time consuming • The public is not yet aware of their new Public Participation rights • EIA law is not in full harmony with the Law on Planning and Construction • Lack of knowledge at local level Zagreb, 17.3.2007

  26. EIA in BiH I • EIA is part of Law on Environmental Protection, Sl. novine FBiH 33/03 • Chapter IX, Art. 53 – 65, plus several bylaws • Two similar EIA laws – one for FBiH and one for RS • The inclusion of the Ministry of Environment into the urbanistic permit process has been resolved well • Further info: www.fmpuio.gov.ba Zagreb, 17.3.2007

  27. EIA in BiH II • EU Public Participation Directive not yet implemented • Public can only comment EIA study – No Public Participation in Screening and Scoping • No info on implementation • Changes to the law are under way • Some important cases concern dams for hydro power plants Zagreb, 17.3.2007

  28. Contacts • ÖKOBÜRO: thomas.alge @oekobuero.at www.oekobuero.at www.justiceandenvironment.org • Umweltbundesamt: fritz.kroiss@umweltbundesamt.at www.umweltbundesamt.at Zagreb, 17.3.2007

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