Facts
Kraftwerke Oberhasli AG (KWO) operates numerous hydroelectric power plants in the Oberhasli region. The landscape north of the Grimsel dam and up to the Räterichsbodensee was definitively included in the inventory of moor landscapes by the Federal Council in its decision of February 25, 2004. KWO later applied for an expansion of the Grimselsee as well as a renovation and heightening of the dam walls.
The Administrative Court of the Canton of Bern annulled the decision of the Grand Council to adapt and supplement the overall concession, as the southern perimeter boundary of the moor landscape had been unlawfully determined. KWO then filed a complaint with the Federal Supreme Court.
Considerations
The Federal Supreme Court concluded that the Federal Council was authorized to take into account the expansion plans for the Grimsel dam that were already in existence at the time of the definitive delineation of the "Grimsel" moor landscape. Article 23b(3) of the Federal Act on the Protection of Nature and Cultural Heritage (NHG) expressly obliges the Federal Council to take existing use into account when delineating moor landscapes. This term must be interpreted broadly, taking into account the history of its development, and also includes specific expansion projects that were concretely planned at the time of the inventory.
The Federal Supreme Court stated that the Federal Council set the perimeter of the moor landscape in such a way that the "KWO Plus" expansion project could be realized. In doing so, it weighed the public interests in the planned increase in the storage lake for energy generation on the one hand, and the interest in the most comprehensive possible…