Dismissal of the abstract review of norms against the cantonal Phosphorus Ordinance of the Canton of Lucerne: implementing ordinance in water protection, property guarantee, proportionality and equality before the law

Facts

Parties and subject matter of the proceedings: More than 140 complainants, predominantly owners or lessees of agricultural holdings in the surface inflow area of Lake Sempach, Lake Baldegg or the Lucerne part of Lake Hallwil, brought an abstract review of norms before the Lucerne Cantonal Court against the amendment of the Ordinance of the Canton of Lucerne of 24 March 2015 on Reducing the Phosphorus Load of the Midland Lakes from Agriculture (PhV/LU). The Cantonal Government had adopted the amendments on 16 June 2020; they entered into force on 1 January 2021.

Contested provisions: § 1 para. 2 (target values for the mean phosphorus concentration: below 15 mg/m3 in Lake Sempach and Lake Baldegg, below 10 mg/m3 in Lake Hallwil), § 3 para. 1 (maximum whole-holding phosphorus requirement coverage of 80% in Lake Baldegg or 90% in Lake Hallwil and Lake Sempach, with the possibility of an exception up to 100%), § 3 paras. 4 and 5 (prohibition of phosphorus-containing mineral fertiliser on crops; limitation of fertilisation for arable farms), § 3a paras. 1-3 (ecological performance certificate, measures such as reduced phosphorus use, water retention measures, Lake Contract plus), § 3b para. 1 and § 3c paras. 1 and 2 (Lake Contract and contributions), § 3d bis para. 1 (limitation of livestock numbers to 2.0 LU/ha in the valley zone and 1.6 LU/ha in the hill zone for holdings not producing independently of the soil).

Lower instance: The Lucerne Cantonal Court dismissed the application for review by judgment of 20 August 2021 (7R 20 1).

Complainants' submissions before the Federal Supreme Court: Violation of the principle of legality (Art. 5 para. 1 Cst., § 2 para. 1 KV/LU), of the separation of powers (§ 45 KV/LU), of the right to be heard (Art. 29 para. 2 Cst.) and of the prohibition of formal denial of justice (Art. 29 para. 1 Cst.); violation of Annex 2 No. 11 para. 1 lit. a, No. 13 para. 2 and No. 13 para. 3 lit. b WPO; violation of equality before the law (Art. 8 Cst.), of the prohibition of arbitrariness (Art. 9 Cst.), of the property guarantee (Art. 26 Cst.) and of economic freedom (Art. 27 Cst.). As to the facts, they dispute the principal responsibility of phosphorus for algal growth (referring to the Burgundy blood alga and climate change) as well as the principal responsibility of agriculture for the phosphorus load (referring to sewage treatment plants).

Written submissions: The Department of Construction, Environment and Economy (BUWD) applied for dismissal; the Federal Office for the Environment (BAFU) considered the lower court's decision to be compliant with federal law. Reply, rejoinder and further reply maintained the applications.

Principal question: Whether the contested provisions of the PhV/LU are compliant with statute, compliant with the constitution and compatible with fundamental rights, in particular whether they could be enacted as an implementing ordinance without a formal statute and whether they are proportionate, equal and not arbitrary.

Considerations

Admissibility and standing: Against a final cantonal decision on abstract review of norms, the public law appeal under Art. 82 lit. b FSCA is admissible (Art. 87 para. 2 in conjunction with Art. 86 para. 1 lit. d FSCA). The complainants have standing as holders of holdings within the scope of application, or with virtual affectedness due to territorial proximity (Art. 89 para. 1 FSCA). The subject matter of the dispute is only the newly amended provisions of the partial revision. The lower court's findings of fact, which rest on the annual report of the BUWD, are not arbitrary: the complainants show no valid grounds for departing from the assessment of the specialist authority. The study submitted concerning sewage treatment plants is in any event of little probative value and possibly an inadmissible novum (Art. 99 para. 1 FSCA).

Separation of powers and statutory basis: The Confederation has exercised, with Art. 76 para. 3 Cst. and the WPA, an exhaustive, derogatory legislative competence in water protection; supplementary cantonal law is therefore not permissible. The cantonal authorities enforce federal law directly. The PhV/LU is an implementing ordinance which the Cantonal Government may enact on the basis of § 56 para. 1 KV/LU and § 2 para. 3 EGSchG/LU; it therefore does not have to be enacted in a formal statute. Whether § 27 EGSchG/LU contains a valid delegation need not be examined. The complaint of violation of the right to be heard and of denial of justice on account of the failure to examine § 27 EGSchG/LU is therefore moot; an abstract review of norms by the Cantonal Court does not exist under § 188 para. 2 lit. a VRG/LU, and its exclusion is not arbitrary.

Property guarantee and statutory basis: The management provisions interfere with the scope of protection of Art. 26 para. 1 Cst. Whether the interference is serious may be left open, since the federal water protection legislation (Art. 6 para. 1, Art. 14, Art. 27 Cst.) also provides a sufficient basis for serious interferences, provided that the cantonal norms remain within the framework of federal law and are sufficiently certain. This is given for all contested provisions: § 1 para. 2 PhV/LU implements Art. 9 para. 1 WPA and Annex 2 No. 13 para. 3 WPO; § 3 para. 1 PhV/LU enforces Arts. 6 and 27 WPA and supplements Annex 1 No. 2.1.6 DPO; § 3 paras. 4 and 5 PhV/LU rely on Art. 6 para. 1 and Art. 27 para. 1 WPA as well as Annex 2.6 No. 3.3.1 ORRChem; § 3a paras. 2 and 3 PhV/LU are authorised by Annex 4 No. 212 WPO; §§ 3b and 3c PhV/LU are discretionary subsidies for the enforcement of Art. 62a WPA, for which an anchoring of the promotion purpose in a formal statute is sufficient; § 3d bis PhV/LU finds its basis in Art. 14 paras. 1 and 6 WPA.

Public interest and proportionality (suitability, necessity, reasonableness): The water protection interest under Art. 6 para. 1 WPA is a weighty public interest; the objections concerning the Burgundy blood alga and climate change do not refute the scientific findings. The measures are suitable: partial suitability is sufficient in environmental protection; the reduction of phosphorus demonstrably leads to lower primary production and better oxygen saturation. Transferring the findings of the study on Lake Baldegg to the other lakes is not arbitrary, since the catchment areas are comparable. The measures are necessary because milder means (lake contracts for around 40 years, aeration) have so far not achieved the limit values and plot-precise measures are not practicable. The restrictive exception regime is…