Could the Swiss „right to appeal for environmental organisations“ serve as a model instrument for true environmental protection in Australia and elsewhere?

While, in an attempt to sell out the country’s natural resources to short-sighted investors, Australia’s new government is undertaking everything in its power to disintegrate environmental protection, fracking is increasingly torturing communities all over the planet. How can environment and society be protected from morally corrupt governments and increasing lack of control?

The consequences of reckless and excessive exploitation of environmental resources are more and more affecting our daily lives. Yet, certain governments seem to ever less understand the need for accordant protection of natural resources and society. In Australia, the Abbott government proves how self-interests and ignorance help to further dismantle already weak environmental legislation. More power for the states and less control on federal level will unequivocally lead to more procedural “mistakes”. The East West Link is a good example of how state governments “elegantly ignore” concerns of the community and experts.
As if weak environmental legislation wouldn’t be bad enough, there is – in Australia and many other countries – almost no possibility for the public to appeal against a questionable decision by the competent authorities. In Australia, the constitution doesn’t even guarantee separation of power, leaving the state governments with the option to introduce or remove laws or take decisions as they please. Appeals at court can be extremely costly or prove to be prone to fail a priori.

The European Union introduced an elegant mechanism for complaints with the Court of Justice where representatives of the Commission or members of the public can appeal against incorrect decisions by governments of any member country. However, as many other countries, Australia isn’t a member of any similar Union and does not know such an instrument. What possibilities exist to safeguard procedural correctness as regards environmental decisions in such a case?

Not being part of the European Union, Switzerland has a very effective instrument that was introduced in 1966 as part of the “Environmental and Heritage Protection Act[1]” and which has successively been integrated into other relevant environmental protection legislation.  The “right to appeal for environmental organisations[2]” is an instrument that allows specific and well-defined organisations[3] to appeal against certain planned developments[4] if they find that there was some procedural mistake and/or that the planned development interferes with current legislation. It is not a veto right but the possibility to enforce a second opinion if an authority is believed to have wrongly approved some development. In some cases this can also involve an appeal at federal level if the decision at state level is found to be wrong[5].

Of course the instrument has provoked many discussions in Switzerland and as one might expect, developers, industrial lobbies and certain political parties have made several attempts to scrap this right. The arguments are the same as Abbott and Co use to approve “one-stop-shops” for environmental approvals in Australia: unnecessary delays in approval processes and hence negative economic consequences and/or lack of international competitiveness for national companies. All this is wrong and studies show that this is not the case at all: the average success rate of appeals against questionable environmental decisions lies at around 63%. This is three times higher than the success in overall administrative appeals. Also, the number of environmental appeals at federal court is with around 10 cases per year quite small (less than 1% of all complaints at federal court) and has decreased over the years, showing that the instrument actually helped to make the environmental assessment process in Switzerland more effective and more efficient.

There is more to that. Environmental NGOs (one can think of organizations equal or similar to Greenpeace, Birdlife or ACF in Australia) recruit people that are passionate about the environment and that have best academic qualifications in the relevant disciplines. Furthermore, they draw from decades of practical experience and know what they are talking about. They understand the scientific background of environmental processes, know the realities in the field and are familiar with applicable legislation.
In contrast, competent authorities are often not as competent as one might wish or expect. Governments change quite often and with them or even sooner ministers[6]. In Australia, where the environmental minister has the power to decide whether a development should go ahead or not[7], they often have no background in environmental sciences at all. What connects current Environmental Minister Greg Hunt with nature is a “three-month period riding a bicycle around Europe” in the 1980s and some work as a “fruit picker”. When doubting about environmental facts he looks up Wikipedia as a reference. And PM Abbott, driven mainly by religious beliefs, seriously questions the competence of the Executive Secretary of the United Nations Framework on Climate Change Convention suggesting that mere Australian citizenship makes one more competent in understanding environmental science and climate change than some 35 years of relevant experience in the environmental field of which almost 20 as a member of the UNFCCC.

Given the urgent need but increasing lack of environmental protection, insufficient assessment processes and nontransparent decision making, it should be imperative to have a higher instance or neutral instrument that stops authorities from further wrecking our environment. Unique and so far restricted to Switzerland, the “Verbandsbeschwerderecht” could serve as a model instrument to ascertain the interests of society and the environment in light of insufficient professionalism by the competent authorities and/or institutional corruption. It would be particularly useful in countries like Australia, where the competent authorities enjoy too much power but lack environmental knowledge and where the public has no or few possibilities for administrative complaints.

[1] ger.: „Natur- und Heimatschutzgesetz“

[2] ger.: “Verbandsbeschwerderecht”, lit meaning „right to appeal for unions/associations (in the sense of organizations)”

[3] It’s not that any organisation has the right to do so; e.g. they have to be domestic and exist for at least 10 years. Currently there are only 28 organisations empowered with this right.

[4] Not every development can be appealed against. Typical appeals encompass developments that need to undergo an Environmental Assessment Process (EIA or SEA), forest clearance or developments in non-development zones (e.g. when prominent tax-evaders such as Michael Schumacher and Sebastian Vettel “bribe” local councils in Switzerland to build private tennis courts, swimming pools or luxury villas where nobody should be allowed to build).

[5] Switzerland has a similar legal system as Australia with federal law often being delegated to the cantons (=states) and from there to local councils. Environmental assessments are done either at state or federal level depending on the characteristics of the development.

[6] Commonly, they rotate their duties, having several roles during one legislation term. For a list of past Environmental Ministers see here.

[7] See e.g. EPBC Act.


About blaubear

Born in 1973 in a small village in rural Switzerland and into a society largely dominated by cows (not only was the human population of one-hundred-and-forty outnumbered by them, but politics were driven by unreasonable subsidies for diary products) I was connected with nature from early age on. Observing nature on one hand and the deficiencies of a dysfunctional Swiss agricultural policy with farmers that had lost connection to the land that provided their income on the other, I soon started to question society and the meaning of life. Suffering also under a farcical public education I developed curiosity to discover on my own. That was how I soon learned that little of what I had been taught was true. Skepticism and interaction with people from for me new cultures fostered my interest for the world and eagerness to leave a life shaped by federalistic layman-ship. At the age of twenty-three I hit the road for the first time, an event that later translated into passion. Traveling between cultures has since become part of my life. At the age of thirty-three I finally realized my dream and did a degree in Environmental Engineering from which I graduated in 2009, only to leave Switzerland once more for my "real home" Spain. Unfortunately, the stay was a short one: a couple of months later I was offered a job in Southeast Asia, where I worked and also lived (with some interruptions, e.g. I live in Melbourne since late 2012) ever since. Having worked for a Japanese company earlier in my life, I soon felt captured again by Asian culture and thinking which makes a lovely contrast to my European heritage. My journey through different countries and cultures has taught me that regardless of how different our thinking and values are, no matter what approaches we take, we all can learn from each other. And if we are open enough to see the common instead of pointing out the differences, then we have a chance to live in harmony and peace: Life is all about integration, not exclusion! It's an old wisdom that "knowledge is power", as such I never get tired of being around new people, having interesting talks, and reading lots of good books. I hope that my blog can contribute to the conversation.
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