Environmental procedures: limits and (mis)interpretations of EIA cumulative assessments

Authors: Mario Laimgruber and Maurizio-Damiano Stoisser

The recent ruling of the Austrian Supreme Administrative Court (VwGH) regarding the construction waste landfill in Fisching (VwGH August 29th, 2024, Ra 2022/07/0025), along with the precedent cited therein (especially VwGH December 17th, 2009, Ro 2018/04/0012), has led to numerous and now widely discussed uncertainties in connection with EIA cumulative assessments – a topic of high practical relevance that is inherently complex, and often characterized by confusion and overlap. So, what are the new developments all about, and what are the consequences for you as a project applicant?

If your project is subject to an EIA anyway (because you reach the relevant threshold), nothing changes: From your project’s perspective, under section 6 para. 1 (4) lit. d of the Austrian EIA Act 2000 (UVP-G 2000) (description of the likely significant effects of the project on the environment due to the interaction of its effects with those of other existing or approved projects in your EIA report), all existing and anticipated impacts must be considered as a zero-plan case (“Nullplanfall”), i.e., as pre-existing burden. The findings in the Fisching construction waste landfill ruling have no effect on this.

However, the ruling of the Supreme Administrative Court (VwGH August 29th, 2024, Ra 2022/07/0025) may be relevant in cases where a project is not, by itself, subject to an EIA, but might be when considered in connection with other projects. In such cases, the Supreme Administrative Court states in the aforementioned decision that for a cumulative assessment under section 3 para. 2 of the EIA Act 2000, both the cumulative consideration of thresholds and any subsequent case-by-case assessment of cumulative environmental effects must take into account projects that are spatially related to the future project in terms of the protected interests affected – insofar as interactions between their effects and those of the future project on individual environmental assets cannot be ruled out from the outset as being environmentally insignificant. Referring to the case law of the European Court of Justice (ECJ), the ruling further specifies that this concerns environmental impacts that are of greater importance due to the impacts of other projects. Specifically, according to the findings of the Supreme Administrative Court in the case of the construction waste landfill in Fisching, this pertains to

all potentially EIA-relevant projects for which, by determining an additional factor (such as density), a value can be calculated that is subsequently suitable for cumulation due to sharing the same unit of measurement of the threshold value of the future project under Annex 1 of the EIA Act 2000, or

projects for which it is possible to directly convert the units of measurement of the threshold values.

The new ministerial circular on the EIA Act 2000 clearly overshoots the mark in this regard. This circular is intended to provide the executive bodies of the UVP-G 2000 with non-binding guidance in the implementation of this law. Although the circular is not yet officially available for download, “interested parties” can, according to the website, contact the Federal Ministry [Department V/11; email: v11@bmk.gv.at] to request it by email. On page 43, as a further reflection on the Supreme Administrative Court’s ruling concerning the construction waste landfill in Fisching, the following is stated:

“It is always possible to convert the units of measurement used in Annex 1 into a percentage of the threshold value as a cumulative unit of measurement, as in Annex 1 (43) for intensive livestock farming.”

This view is legally untenable: Firstly, if this were the case, the Administrative Court’s statements regarding the Fisching construction waste landfill would be completely meaningless (if any project could potentially be cumulated with any other through a percentage-based comparison, there would be no need for the criteria mentioned in the ruling and previously explained). Secondly, this interpretation would not be consistent with the EIA Directive (UVP-RL). Regarding this undoubtedly excessive interpretation, it must be noted that the reference to intensive livestock farming is also flawed, because in that case, there is a specific legal basis for mixed animal populations – something that does not exist under the general provision on cumulation.

Furthermore, it should be emphasized that the initiated debate and the aforementioned EIA circular fail to sufficiently acknowledge the limitation explicitly stated in the case law of the Administrative Court of Justice, namely that other projects may only be taken into account for threshold cumulation and any subsequent case-by-case assessment insofar as “interactions” between the effects cannot be ruled out from the outset. Therefore, a mere “addition” of environmental impacts is insufficient to warrant consideration – whether regarding the cumulation of thresholds or the context of the case-by-case assessment.

The current government program promises a “practical and EU-compliant simplification of the cumulation rules” on page 52. Until such a simplification is implemented, project applicants will need to build their arguments both on a substantive and a legal level in relevant cases – for example, in an EIA determination procedure, which is advisable for legal certainty – in order to demonstrate why the findings of the Supreme Administrative Court’s decision of August 29th, 2024 (Ra 2022/07/0025), are not relevant to their own project.

What certainly cannot be the solution is that project applicants in the future are encouraged to significantly downscale their projects – for example, to design them in such a way that planned projects have a capacity of less than 25% of the applicable threshold value, since in that case, no case-by-case assessment would be required under section 3 para. 2 UVP-G 2000 – the EIA approval procedure is a project approval procedure in which the project applicant specifies the subject matter of the procedure through their application, regardless of any interventions. Equally counterproductive would be an approach whereby authorities, due to the apparently existing uncertainties, initiate a cumulation review under section 3 para. 2 UVP-G 2000 as a matter of routine and precaution – even for projects where relevant cumulative effects are excluded from the outset. Such an approach would be contrary to Article 18 of the Federal Constitutional Law and the principle of procedural economy, which requires consideration of the greatest possible expediency, speed, simplicity and cost savings in administrative processes.

In all environmental proceedings and regardless of how the circumstances regarding the topic presented here develop, we will be happy to assist you in protecting your interests and look forward to hearing from you.

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