Unconstitutional

Supreme Court overturns parts of the Nature Conservation Act

Test drilling for gas in Molln is currently interrupted

(Bild: Werner Kerschbaummayr/DAVID RAUSCHER / FOTOKERSCHI)

The Constitutional Court has overturned section 43a of the Upper Austrian Nature Conservation Act and thus the exclusion of the suspensive effect for complaints as unconstitutional. The UWD concludes that the test gas drilling in Molln, against the approval of which the Umweltdachverband (UWD) and the Naturschutzbund had lodged an appeal, was therefore actually unlawful.

At the end of 2023, UWD and Naturschutzbund filed a complaint against the nature conservation authority's approval with the Upper Austrian Provincial Administrative Court (LVwG) regarding the planned gas test drilling in Molln (Kirchdorf district) near the Kalkalpen National Park.

However, according to the legal situation in force at the time, it had no suspensive effect, as the 2014 amendment to the Nature Conservation Act passed by the Upper Austrian state parliament introduced a reversal of the burden of proof for contested positive nature conservation decisions.

Previously, complaints from environmental advocates and/or authorized nature conservation organizations automatically had a suspensive effect, but now the necessity for a postponement must be proven.

Provincial Administrative Court requested a review by the Constitutional Court
The LVwG must now revoke the decision of the Nature Conservation Department of the Province of Upper Austria, in which the suspensive effect was rejected. In February 2024, the LVwG itself had applied to the Constitutional Court to examine whether the removal of the suspensive effect for appeals under the province's Nature Conservation Act was permissible.

"With its ruling, the Constitutional Court has strengthened legal protection and the principle of the rule of law," said Franz Maier, President of the environmental umbrella organization. The ruling applies with immediate effect.

Franz Maier, President of the Environmental Umbrella Organization

(Bild: Tomschi Peter)

"In this specific case, the gas test drilling in Molln posed a massive threat to protected natural areas near the Kalkalpen National Park - the Constitutional Court's ruling makes it clear that this should not have happened without final legal clarification," emphasized Maier.

Reform of the Upper Austrian Nature Conservation Act
"The ruling clearly shows that the previous interventions should not have taken place. It is now imperative to reform the Upper Austrian Nature Conservation Act in order to prevent such unlawful interventions in nature in the future and to further strengthen effective legal protection in accordance with the Aarhus Convention and the rule of law," demands Thomas Wrbka, President of the Austrian Nature Conservation Association.

Further planned tests are therefore inadmissible until the Upper Austrian Provincial Administrative Court has ruled on the appeal against the decision.

A test well (Welchau-1) drilled by operator ADX Energy near the Kalkalpen National Park in Molln discovered oil and gas in March 2024, but drilling was interrupted in December.