Concession and Plan Approval for Cabin Cable Car Set Aside: Failure to Examine Alternatives, Lack of Site Dependence in Water Space and Insufficient Proof of Accessibility for Persons with Disabilities

Facts

The Engadin St. Moritz Mountains AG (respondent) filed an application on 28 May 2015 with the Federal Office of Transport (BAV) for a concession and plan approval for the construction and operation of a 10-person circulating cabin cable car from St. Moritz Bad to Signal. The installation replaces the existing pendulum cable car dating from 1972 on an unchanged route; the valley station is to be extended and provided with an additional envelope use. The total cost amounts to approx. 35 million francs. Not part of the application is the 'Arealüberbauung Signal' (site development) with underground car park, hotel, shops and flats next to the valley station.

On 28 May 2018 the BAV granted concession No. 3966 (40 years, hourly capacity of 2,400 persons compared with 1,000 previously) and approved the plan with conditions and exceptional permits. The objections of [A. SA] (owner of parcel No. 1989, approx. 15 m distance from the route), the condominium owners' associations [B.] and [C.] and of [D.] (parcels overspanned) were partially upheld. The Federal Administrative Court dismissed the joined appeals by judgment of 2 September 2020 (A-2700/2018, A-2735/2018, A-2739/2018), insofar as they were admissible.

[A. SA] (1C_567/2020) as well as the condominium owners' associations and [D.] (1C_568/2020) filed appeals in public law matters with the Federal Supreme Court. They requested that the concession and plan approval be refused, or alternatively that the matter be remitted. The respondent requested dismissal; the BAV waived a statement of position. The Federal Supreme Court granted suspensive effect to the appeals by presidential orders of 11 November 2020. The Federal Office for the Environment (BAFU) submitted observations.

The disputed issues included in particular: the failure to examine alternative aerial cableway systems (pendulum cable car, 3S cable car) under Art. 5 para. 2 ForA, Art. 3 NCHA and Art. 10b para. 2 let. b EPA; clearing of 1,580 m2 of forest; use of the water space of the Inn under Art. 41c para. 1 WPO; and proof of accessibility for persons with disabilities under Art. 11 para. 1 let. b CabO.

Considerations

Proceedings 1C_567/2020 and 1C_568/2020 concern the same object of challenge and are joined (Art. 71 FSCA in conjunction with Art. 24 FCPA). The appellants have standing to appeal on account of their status as landowners and their special proximity to the cable car (Art. 89 para. 1 FSCA). The request to set aside the BAV decision of 28 March 2018 is not admissible, since it was replaced by the decision of the Federal Administrative Court (devolutive effect).

A comprehensive, overall balancing of interests, including the examination of alternatives, is required: under Art. 3 para. 1 NCHA (federal task), Art. 5 para. 2 ForA (clearing, site dependence, pre-structured balancing of interests), Art. 41c para. 1 WPO (water space) and Art. 3 and Art. 2 para. 1 let. b SPO. The authority must examine alternatives that seriously come into consideration; only manifestly disadvantageous alternatives may be eliminated in summary fashion. The mere assertion of disadvantages is not sufficient; the reasons must be manifestly serious. The omission of a prescribed examination of alternatives is a violation of law and regularly leads to an insufficient establishment of the facts. The environmental impact report then also does not satisfy Art. 10b para. 2 let. b EPA.

On the merits, the reasons given by the lower court are not sufficient: the asserted operational disadvantages and the capacity of 2,400 persons/h are only vaguely substantiated; the need for a capacity increase by a factor of 2.4 is not adequately documented. Nor does the impact on the landscape caused by the new top station and eight pylons (up to approx. 47 m) justify excluding alternative systems. Forest is strongly protected by law; a variant with a lesser encroachment on the forest may not be excluded in advance. The authority cannot leave the choice of system solely to the applicant where exceptional permits are required and alternative systems exist.

The exceptional permit for use of the water space under Art. 41c para. 1 WPO presupposes a facility that is site-dependent and in the public interest, whereby the encroachment must be kept as small as possible. The list in Art. 41c para. 1 WPO is not exhaustive. However, the site dependence of the valley station and of the low-level support pylon was not examined in a legally adequate manner: the lower court examined them separately from the…