Severe impairment of an OILNM protected site due to the designation of a cantonal usage zone for a landfill

Facts

Parties: A. and co-complainants against U. AG and the Department of Construction of the Canton of SocRA

Court: I. public law division of the Federal Supreme Court

Date: November 7, 2023

Facts:

On January 28, 2004, the Cantonal Council of the Canton of SocRA designated the Stockeri area in the municipality of Risch as a site for an inert material landfill. The Federal Council approved the entry in the directive plan on January 11, 2006, with conditions. On September 30, 2008, the Government Council of the Canton of SocRA issued a cantonal usage zone for waste facilities. The Department of Construction granted U. AG the permit for the construction of the Stockeri landfill. After numerous appeals and court proceedings, the matter was referred back to the Government Council for re-evaluation.

On November 17 and 24, 2017, the Office for Spatial Planning published a new application for the designation of a cantonal usage zone for waste facilities in the Stockeri area. The Federal Commission for Nature and Home Protection (FCNH) requested that the designation of the cantonal usage zone be waived. By order of December 4, 2019, the Department of Construction designated the cantonal usage zone. A. and B., along with 22 other persons, filed an administrative court appeal against this order. The Administrative Court dismissed the appeals.

A. and B., along with 18 other persons, filed an appeal with the Federal Supreme Court against the judgments of the Administrative Court. The Federal Supreme Court combined the two appeals, upheld them, and set aside the contested judgments as well as the decision of the Department of Construction.

Considerations

The complainants allege a violation of various provisions of federal nature and home protection law, in particular Art. 6 of the Federal Act on Nature and Home Protection (NCHA) and Art. 5 of the Ordinance on the Federal Inventory of Landscapes and Natural Monuments (OILNM).

The disputed cantonal usage zone for waste facilities is located in the area "OILNM 1309 Zugersee" of the Federal Inventory of Landscapes and Natural Monuments of national significance (OILNM). The area of the usage zone was previously assigned to the agricultural zone, which is overlaid by a communal landscape protection zone. According to Art. 3 para. 1 NCHA, the Confederation and the cantons ensure, in fulfilling the federal tasks, that the native landscape and local scenery are preserved. Art. 6 NCHA stipulates stricter requirements for the balancing procedure in the case of serious interventions in protected objects.

The previous instance concluded that the designation of the cantonal usage zone does not result in a serious impairment of the area "OILNM 1309 Zugersee". The complainants argue that the…