Swiss court rules reserve power plant licence invalid
The federal government should not have issued an operating ordinance for a reserve power plant in canton Aargau which was intended to supply Switzerland with electricity in the event of a shortage. According to the Federal Administrative Court, the legal conditions for this were not met because, in its opinion, there was no severe shortage in the winter of 2022/23.
In February 2022, following Russia’s invasion of Ukraine, the Federal Council feared that Switzerland wouldn’t be able to import sufficient electrical energy at the end of 2022 and in spring 2023. For this reason, the Federal Council decided to build up a winter reserve. Among other things, the construction of the temporary reserve power plant in Birr, in canton Aargau, was planned.
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The federal government based its decision on the Federal Supply Act. This allows it to take temporary economic intervention measures in the event of a severe shortage. The aim of such measures is to ensure the supply of essential goods.
The Federal Administrative Court has now upheld the appeal of a local resident against the operating permit, who had argued that there was no serious shortage of electricity for the winter of 2022/2023.
No arbitrary leeway
According to the Federal Administrative Court, the Federal Council is fundamentally entitled to take economic intervention measures in order to secure supply. However, it is not free in its decision and must dutifully exercise its considerable leeway. Intervention measures must be based on the purpose of the law and observe the basic principles of the Federal Constitution.
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The Federal Administrative Court rejected claims that there was a serious shortage situation for the winter of 2022/2023. The Federal Department of Environment, Transport, Energy and Communications (UVEK) was unable to demonstrate a severe shortage, which served as the basis for the government’s decision. The legal requirement for the provision and operation of the Birr reserve power plant was therefore not met.
Weighing interests
The court also stated that economic interventions must be proportionate. The interests affected by the measures must therefore be weighed up against each other. It was not clear what other options had been considered including with regard to the impact on the environment.
Against this background, the Federal Administrative Court upheld the appeal and found that the operating license for the reserve power plant did not comply with the law. This ruling is final and cannot be appealed to the Federal Supreme Court.
Climate Strike Switzerland welcomed the ruling of the Federal Administrative Court on Friday and called for consequences. The reserve power plant in Birr should be dismantled immediately, as there is no basis for its existence, the organisation announced. According to Climate Strike Switzerland, two other power plants in the country should also no longer be under federal contract as a reserve. In addition, the tender for new fossil-fuel power plants that could be in operation by 2041 should be cancelled.
Translated from German by DeepL/jdp.
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