Key developments in Austrian environment and climate change law in 2022: part one - legislation

2022 was a busy year marked by the late effects of the covid-19 pandemic and the Russia-Ukraine conflict. The latter has led to the rethinking of energy matters. Austrian legislation in 2022 was, therefore, characterised above all by new developments and amendments in energy law, with a focus on the expansion of renewable energy. This article is part of a series on developments in Austrian environment and climate change law in 2022 and, in particular, focuses on legislative developments.

Under the Austrian Federal Constitution, legislative competence for Austrian environmental law is shared between the federal and the nine provincial legislatures. As a so-called "cross-sectional matter", environmental law is regulated in numerous legal acts (laws and ordinances) on a federal and a provincial level. As an EU member state, Austria is also obliged to consider the requirements of EU environmental law.

Due to this systematic fragmentation of legislative competencies, it is a great challenge to remain up to date with the latest legislation. This is especially true for environmental law, which is the subject of much discussion in both the European Union and nationally due to current developments and crises. Therefore, this article provides a general, but by no means exhaustive, overview of the most current legislative developments in 2022 at the federal and provincial levels.

Federal level

The most important areas of environmental law (especially in the fields of environmental impact assessment, waste law, water law and climate protection law) are primarily regulated by the federal legislature. Despite the current (energy) crises and announced reforms, the government presented and sent for review only draft legislation in 2022. The long-announced and expected major amendments in environmental law regulated by the federal legislature failed to materialise.

At the beginning of 2022, the National Emission Allowance Trading Act (NEHG) was passed, enacting a carbon dioxide tax in Austria. Based on the NEHG, the NEHG Implementation Ordinance was issued in September 2022, which regulates the technical design and organisational implementation of the procedures of the national NEHG.

In July 2022, the Federal Ministry for Climate Protection, Environment, Energy, Mobility, Innovation and Technology (BMK) sent the highly anticipated draft amendment to the Environmental Impact Assessment (EIA) Act for review. The amendment reached the National Council on 11 January 2023. Of particular interest to project applicants is the planned increase in the speed of procedures, which is to be achieved by improving the structure of the approval and appeal procedure. Particular attention is being paid to fast-track procedures for energy turnaround projects (renewable expansion projects).¹ In addition to promoting the expansion of renewable energy, the legislature intends to implement Supreme Court rulings and adjust regulations due to pending EU infringement proceedings regarding the implementation of the EU EIA Directive.

Also eagerly awaited was the enactment of the Federal Act on the Phase-out of Fossil-fuelled Heat Supply (RHA), which was presented to the National Council on 2 November 2022. In view of Austria's goal to be climate neutral by 2040, the BMK has developed a phase-out plan for fossil fuels (ie, oil, gas, liquified petroleum gas and coal) in space heating in the draft RHA Act.²

There have also been various amendments to the Federal Act on the Expansion of Energy from Renewable Sources (Renewable Energy Expansion Act). These mainly concern:

technical and editorial adjustments;
changes resulting from the notification procedure with the European Commission under state aid law; and
simplifications for small photovoltaic plants (up to 20 kilowatts peak).

Provincial level

In 2022, almost all provincial legislatures responded to infringement proceedings against the Republic of Austria for its failure to fully implement Directive 2018/2001 on the promotion of the use of energy from renewable sources, and amended their respective provincial electricity laws.³ The amendments were also necessary due to a previous amendment to the basic provisions of the Federal Electricity Industry and Organisation Act and the implementation of a Renewable Expansion Act Package at the federal level. The states have enacted similar provisions, which can be summarised as:

anchoring the principle of "energy efficiency first";
introducing a simplified procedure for repowering existing plants;
streamlining the administrative process by establishing a new point of contact for permit applicants at the respective provincial governments;
issuing a procedure manual; and
creating a mediation procedure.⁴

Apart from this, the following 2022 provincial-level amendments should be highlighted (not exhaustive):

Salzburg Nature Conservation Act;
Burgenland Regional Planning Act;
Lower Austrian Waste Management Act;
Vienna Energy and Climate Law Implementation Act;
Tyrolean Gas, Heating and Air Conditioning Act; and
Styrian Regional Planning Act.

Outlook for 2023

The above-mentioned legislative projects already show that environmental legislation in 2023 (especially at the federal level) cannot be overlooked. In addition to the amendment to the EIA Act and the enactment of the RHA Act, the government announced the enactment of another new law very recently – the Renewable Energy Expansion Acceleration Act. While the exact content of the new law is not yet known, it is intended to simplify and accelerate the approval process for renewable projects that do not require approval under the EIA Act.

Not yet announced, but already expected, is the new enactment to the Climate Protection Act, which was last revised in 2017. The Climate Protection Act sets annual caps on greenhouse gas emissions by sector (eg, waste management, energy and industry, and buildings). However, due to the lack of agreement among the governing parties, the commitment period expired in 2020, which led to missing annual caps since 2021 and sharp criticism of the government.

Finally, it should be noted that the current term of government ends in the fall of 2024 and that, according to its current programme, the government still intends to tackle further environmental legislation. These include the amendment to the Act on the Remediation of Contaminated Sites with the aim of ensuring faster, more efficient and safer remediation of contaminated sites, as well as the improvement of the Emission Control Act – Air and the amendment to the Pyrotechnics Act. It remains to be seen whether all these legislative projects will be addressed in 2023.

Comment

Looking back, 2022 brought exciting legislative proposals that demonstrate a will to change. However, if the ambitious goals for an energy turnaround are to be achieved, the Austrian legislature will have to step up a gear in 2023.