Right of Appeal for Associations: Consequences for the Environment
The majority of the Senate's Environment Committee is using the acceleration bill to undermine the right of appeal for associations, thereby curtailing the voice of nature. This weakens the enforcement of environmental law and throws the entire bill off balance.
Just four months after the vote on the Electricity Act, the majority of the UREK-S is breaking the promise made by the Federal Council and Parliament that “the options for appeal by private individuals and associations will remain in place” (Voting booklet on the Electricity Act, p. 44 ) and is ignoring the will of the people.
Rather than simply streamlining the approval procedures for energy projects — as the Federal Council and the National Council had envisaged – a majority of the UREK-S wants to massively curtail the right of appeal for associations and thus the voice of nature.
Originally, the so-called acceleration bill aimed to simplify and make more efficient the approval procedures for energy projects of national interest – a concern that environmental organisations have explicitly supported. But now a majority of the UREK-S is overshooting the mark and wants to massively restrict civil society’s right of appeal.
It would be a severe blow to the rule of law and a massive loss of trust in politics if the promises made during the referendum campaign were now broken. The numerous additional decisions still need to be analysed in detail once the relevant documents become available.
Figures show: the right of appeal for associations is used with restraint
The Environmental Commission of the Council of States has thrown the proposal off balance by eliminating the right of appeal for associations with regard to the 16 hydropower plants specified in the Electricity Act. The figures from the complaints statistics confirm the restrained and targeted use of the right of appeal for associations by environmental organizations: Between 2010 and 2020, approximately 750 water, wind, or biomass projects were realized, and in only 62 cases was an appeal filed demanding improvements for the protection of nature.
The primary responsibility for the sometimes sluggish implementation of energy projects lies not with the right of appeal for associations, but rather with the often lengthy planning and approval procedures as well as the lack of resources at the responsible authorities and courts. It is precisely these stumbling blocks that must be addressed by the acceleration proposal.
Proposal at risk of failure
The decision by the majority of the UREK-S now throws the proposal out of balance and undermines its ability to gain majority support. The right of appeal for associations is a cornerstone of environmental law and a central element for upholding the separation of powers. The resolved restriction of this right is unnecessary, unreasonable, and disproportionate. Parliament must correct the UREK-S decision here.
The right of appeal for associations (VBR)
Since nature itself has no voice, the right of appeal for associations allows, in particularly critical cases of significant interventions in nature and the environment and following careful analysis, permits for projects to be reviewed by a court. This affects only a very small proportion of all projects. Decisions are always made by judges.
The VBR is an important and proven instrument in environmental law, which is applied responsibly. The right of appeal for associations is available only to selected environmental organizations that have been committed to the protection of nature across Switzerland for more than 10 years. Between 2010 and 2020, 750 water, wind, or biomass projects were realized. During this period, there were on average fewer than 6 association appeals per year, aimed at achieving the legally required improvements for the protection of nature in the construction of renewable energy projects.
In two out of three cases in which the right of appeal for associations is exercised, it results in the legally required improvements for nature. Compared to the right of appeal for private individuals, the associational right of appeal is used very sparingly and efficiently. Appeals by associations are upheld by courts three to four times more often than appeals by private individuals. A study by the University of Geneva shows that only 1 in 100 appeals filed with cantonal administrative courts was submitted on the basis of the associational right of appeal. The rest were private appeals.
