1 Environmental Policy and its Enforcement
1.1 What is the basis of environmental policy in your jurisdiction and which agencies/bodies administer and enforce environmental law?
According to article 73 of the Federal Constitution ("BV"), the Confederation and the Cantons shall endeavour to achieve a balanced and sustainable relationship between nature and its capacity to renew itself and the demands placed on it by the population. Pursuant to article 74 BV, the Confederation is responsible for the legislation on the protection of the population and its natural environment against damage or nuisance and it shall ensure that such damage or nuisance is avoided. The Cantons are primarily responsible for the execution of the relevant federal regulations, but they may also enact implementing rules where federal law so provides. The Federal Constitution contains further provisions regarding protection of the water, forests as well as natural and cultural heritage (articles 76, 77, and 78 BV).
There are numerous acts and ordinances implementing the constitutional mandate regarding environmental protection. The following acts are the most important: the Environmental Protection Act ("USG"); the Ordinance on Avoidance and Disposal of Waste ("VVEA"); the Ordinance on Contaminated Sites ("AltlV"); the Chemicals Act ("ChemG"); the Act on Reduction of CO2 ("CO2- Act"); as well as the Nuclear Energy Act ("KEG"); and the Ordinance on the Environmental Impact Assessment ("UVPV"). The Swiss environmental policies and the implementation of environmental laws are based on the following main principles:
- The "precautionary principle" (Vorsorgeprinzip) states that early preventive measures must be taken in order to limit effects which could become harmful or a nuisance (article 1 para. 2 USG).
- The "polluter pays principle" (Verursacherprinzip) states that any person who causes measures to be taken due to endangering, polluting or causing damage to the environment must bear the costs related to avoidance or clean-up (article 2 USG).
- The "principle of abatement of pollution at source" (Prinzip der Bekämpfung von Umweltbeeinträchtigungen an der Quelle) that originates from the precautionary principle states that environmental impacts must be abated at their source.
According to article 74 para. 3 BV, the Cantons are responsible for the implementation of the relevant federal regulations, except where the law provides otherwise and determines that the Confederation is competent for implementation. This principle is replicated in article 36 USG. Accordingly, the Confederation supervises the execution of environmental law by the Cantons and coordinates their activities (article 38 para. 1 and 2 USG). In some areas, the federal government is itself responsible for the enforcement of environmental legislation, such as import and export of waste (article 41 USG). In general, the Federal Council enacts the implementing provisions (article 39 para. 1 USG).
On the federal level, the Federal Office for the Environment ("BAFU") is generally responsible for the execution of environmental law, but there are also some special agencies, which are competent in specific areas such as the Swiss Federal Nuclear Safety Inspectorate ("ENSI"). In addition, each Canton has its own authority responsible for the execution of environmental law.
1.2 What approach do such agencies/bodies take to the enforcement of environmental law?
Switzerland has a rather strict approach to enforce environmental law. Apart from authorisations and inspections, the agencies also have the power to impose fines for various violations of environmental law (article 61 USG). Severe violations may even be punished by a custodial sentence of up to three years (article 60 USG). Other sanctions include the order to discontinue illegal activities, the re-establishment of the lawful conditions, and the withdrawal of authorisations.
1.3 To what extent are public authorities required to provide environment-related information to interested persons (including members of the public)?
The authorities are obliged to inform the public adequately about environmental protection and levels of environmental pollution (article 10e para. 1 USG). If it is in the public interest, the authorities may also inform interested persons about the results of inspections and conformity-assessments, after having consulted the persons concerned. Furthermore, any person has the right to inspect environmental information in official documents and information relating to energy regulations that relate to the environment and to request information from the authorities about the content of these documents (article 10g para. 1 USG).
2 Environmental Permits
2.1 When is an environmental permit required, and may environmental permits be transferred from one person to another?
Environmental permits are common in Swiss law and are required for constructions or the operation e.g. of landfills or nuclear energy plants as well as for the placing on the market or handling of specific substances or special waste (e.g. article 30e USG, article 12 ff. KEG, article 9 ff. ChemG). Usually, a permit is bound to a person/company and therefore not transferable (personenbezogene Bewilligung). However, in some cases, permits can be linked to an object (sachbezogene Bewilligung). These permits generally remain in place if the ownership of the object changes.
2.2 What rights are there to appeal against the decision of an environmental regulator not to grant an environmental permit or in respect of the conditions contained in an environmental permit?
There is a possibility to challenge the refusal or the provisions of an environmental permit, usually within a period of 30 days. The appeal has to be directed either at the competent Cantonal administrative court (in case of Cantonal authorities implementing the environmental law) or at the Federal Administrative Tribunal (if a federal authority implements the environmental law). It is possible to invoke a false establishment of the facts of the case or a violation of the applicable law. After the administrative court or tribunal has decided, its decision may be appealed before the Federal Supreme Court for violation of federal law.
2.3 Is it necessary to conduct environmental audits or environmental impact assessments for particularly polluting industries or other installations/projects?
Before taking any decision on the planning, construction or modification of installations, the competent authority must assess their impact on the environment. The requirement of an environmental impact assessment applies to installations that could cause substantial pollution to environmental areas, to the extent that it is probable that compliance with regulations on environmental protection can only be ensured through measures specific to the project or site (article 10a ff. USG). Any person who wishes to plan, construct or modify an installation that is subject to an environmental impact assessment must submit an environmental impact report. Based on this report and on its own investigation, the environmental protection agencies order the necessary measures.
2.4 What enforcement powers do environmental regulators have in connection with the violation of permits?
Regulators can impose a fine and there are criminal sanctions up to a custodial sentence not exceeding three years or a monetary penalty. The regulator can also confiscate objects or order the discontinuation of the illegal activities, and the re-establishment of the lawful conditions. As an ultima ratio, the regulators can revoke the environmental permits.
3.1 How is waste defined and do certain categories of waste involve additional duties or controls?
Waste is defined as "any moveable material disposed of by its holder or the disposal of which is required in the public interest" (article 7 para. 6 USG). The disposal of waste includes its recovery or deposit in a landfill as well as the preliminary stages of collection, transport, storage and treatment (i.e. any physical, chemical or biological modification of the waste) (article 7 para. 6bis USG).
The owner or holder of waste has to comply with a number of legal obligations. The owner or holder is whoever has actual control over the waste. This person has the duty to dispose the waste that he holds (article 31c para. 1 in connection with article 31b para. 1 USG) and must bear the cost of its disposal (article 32 para. 1 USG). Waste whose environmentally compatible disposal requires special measures qualifies as special waste (article 30f USG). Additional obligations for the handling of special waste apply, such as markings as well as licence requirements for import and export.
3.2 To what extent is a producer of waste allowed to store and/or dispose of it on the site where it was produced?
As a principle, the production of waste should be avoided wherever possible (article 30 para. 1 USG). The Federal Council may require manufacturers to avoid production waste where there is no known environmentally compatible process for its disposal (article 30a lit. c USG). All other waste may be stored and disposed of only in landfills (article 30e para. 1 USG) and according to article 30c para. 2 USG waste must not be burned other than in incineration plants (exception applies to the burning of natural forest, field and garden waste). The disposition of waste on a site requires a permit for setting up and operating a landfill (article 30e para. 2 USG).
3.3 Do producers of waste retain any residual liability in respect of the waste where they have transferred it to another person for disposal/treatment off-site (e.g. if the transferee/ultimate disposer goes bankrupt/ disappears)?
The holder of waste is entitled to instruct third parties to dispose of it (article 31c para. 1 USG). In case of such external disposal, the third party qualifies as the holder of waste. If the third party violates its obligations, it becomes liable for the recovery measures (because he qualifies as interrupter). As the polluter has to bear the costs for recovery measures (article 2 and 59 USG), not only the third party as interrupter is responsible for such costs, but in some instances also the initial holder. This is the case if the wrongdoing of the appointed third party falls within the responsibility of the initial holder as well.
3.4 To what extent do waste producers have obligations regarding the take-back and recovery of their waste?
The Federal Council may require certain types of waste to be recovered if this is economically feasible and harms the environment less than other forms of disposal and the manufacture of new products (article 30d para. 1 USG). Such recovery obligations exist, inter alia, for disposable packaging consisting glass, PET, and aluminium, as well as for batteries and electrical devices.
To view the full article please click here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.