Climate Change protection goes local – remarks on the Vienna Airport Case

Climate Change was brought before the Austrian Federal Administrative Court in the beginning of 2017. The judgement concerning the construction and operation of a third runway acknowledges the current development in the UNFCCC process and, as such, is of special importance and without precedence: According to the Court, the fight against Climate Change and its consequences for Austria overrides the public interest in the expansion of the Vienna Airport.

In numerous jurisdictions environmental activists and organisations are fighting against Climate Change and trying to see its importance and urgency acknowledged by the Courts. This time, their tenacity during the long process beginning in 2001 with the plan to expand the airport, was successful.

According to §§ 58 (3), 68, 75 of the Austrian Aviation Act, every construction, operation or enlargement of a civil airport requires a permit by the competent authority. § 71 (1), (2) indicates the conditions under which the permit is to be granted: A public interest in favour of the construction (that is: the demand for such a project) is required, but ‘other public interests’ have also to be taken into account. According to the Court, this means that the different public interests need to be balanced – which, crucially, allows the Court to fully review the discretion exercised by the competent authority. The Court has no trouble to accept the public interests in favour of the expansion of the airport: As flight traffic, in line with a general trend in Europe, will continue to rise and the capacity of the airport will meet its limits by 2025, the demand for the construction is out of question. The expansion would also help improving the development of the eastern region of Austria, creating jobs and raising flight security.

The Court, though, puts opposing weight in the balance, which is the contribution of the project to the greenhouse gas (GHG) effect ...

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