Operating license for Birr AG power plant did not comply with the law
Published: Friday, Feb 23rd 2024, 12:50
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The Federal Council should not have issued an operating ordinance for the reserve power plant in Birr AG, which was intended to supply Switzerland with electricity in the event of a shortage. According to the Federal Administrative Court, the legal conditions for this were not met because, in its opinion, there was no severe shortage in the winter of 2022/23.
In February 2022, following the invasion of Ukraine by Russian troops, the Federal Council feared that Switzerland would not be able to import sufficient electrical energy at the end of 2022 and in spring 2023. For this reason, the Federal Council decided to build up a winter reserve. Among other things, the construction of the temporary reserve power plant in Birr AG was planned.
The national government based its decision on the National Supply Act. It allows it to take temporary economic intervention measures in the event of a severe shortage. The aim of such measures is to ensure the supply of essential goods. This is what the Federal Administrative Court wrote in a ruling published on Friday.
In December 2022, the Federal Council issued the Ordinance on the Operation of Reserve Power Plants and Emergency Power Groups in the Event of an Imminent or Existing Shortage. Based on this ordinance, the Federal Department of the Environment, Transport, Energy and Communications (DETEC) granted the Birr reserve power plant an operating license at the end of December 2022. This was valid until May 31, 2023.
The Federal Administrative Court has now upheld the appeal of a local resident against the operating permit. She argued that there was no serious shortage of electricity for the winter of 2022/2023.
No room for maneuver
In principle, according to the Federal Administrative Court, the Federal Council is entitled to take economic intervention measures in order to secure supplies. However, it is not free in its decision and must dutifully exercise the considerable leeway to which it is entitled. Intervention measures must be based on the purpose of the law and observe the basic principles of the Federal Constitution.
The Federal Administrative Court denies a severe shortage for the winter of 2022/2023. The Uvek was unable to show on the basis of which assumptions the Federal Council had assumed a severe shortage. The legal requirement for the provision and operation of the Birr reserve power plant was therefore not met.
The court also states that economic interventions must be proportionate. The interests affected by the measures must therefore be weighed up against each other. It was not clear what other options had been considered - including with regard to the impact on the environment.
Against this background, the Federal Administrative Court upheld the appeal and found that the operating license for the reserve power plant did not comply with the law. This ruling is final and cannot be appealed to the Federal Supreme Court.
Climate Strike Switzerland welcomed the ruling of the Federal Administrative Court on Friday and called for consequences. The reserve power plant in Birr should be dismantled immediately, as there is no basis for its existence, the organization announced. According to Climate Strike Switzerland, the power plants in Cornaux NE and Monthey VS should also no longer be under federal contract as a reserve. In addition, the tender for new fossil-fuel power plants, which could be in operation by 2041, must be canceled.
©Keystone/SDA
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