Chapter 2. Environmental governance and management
This chapter assesses progress in environmental governance and management since the last OECD Environmental Performance Review. It provides an overview of the institutional framework for environmental management, touching upon horizontal and vertical co-ordination mechanisms. It discusses the regulatory framework, including key developments in specific areas such as air quality and waste management, and examines the Swiss approach to environmental permitting, compliance and enforcement. Finally, it discusses environmental democracy, from public participation to access to justice and information.
1. Introduction
The specificity of environmental governance in Switzerland as a federal country is that the Confederation establishes the overarching legal framework that is implemented by cantons and municipalities. This system is based on the legal principles of subsidiarity and co-operation. The former implies that the federal authorities intervene only if they can ensure more effective action than cantonal or municipal authorities, while the latter calls for close collaboration among the levels of government and stakeholders. Cantons and municipalities have a large degree of autonomy in implementing and enforcing federal environmental legislation, which leads to significant differences in the way they carry out their tasks. The Confederation’s oversight over cantons, using performance measurement and reporting, could be strengthened to ensure a level playing field in the implementation of environmental law.
Switzerland co-operates with the European Union (EU) in many areas related to environmental protection, including agriculture and public procurement. Although it has not joined the European Economic Area, Switzerland is progressively moving its environmental law closer to the EU acquis. Since the 2007 Environmental Performance Review (EPR), Switzerland has made significant progress, especially in the area of environmental democracy. This was mainly achieved through ratification of the Aarhus Convention in 2014, which strengthened the role of public participation and the country’s position on access to environmental information and justice. In addition, Switzerland has actively been developing and modernising its environmental laws through recent amendments to the Environmental Protection Act, the Waters Protection Act and the Spatial Planning Act. More efforts are still needed on strengthening vertical co-ordination and integrated permitting.
2. Institutional framework for environmental governance
Swiss environmental policy plays out at three levels: the Confederation, cantons and municipalities. The cantons have a high degree of autonomy on regulating and implementing environmental policy, in accordance with the principle of subsidiarity and pursuant to federal legislation and guidelines. This means the federal authorities do not interfere with cantonal governance (except on matters for which the Confederation has sole responsibility1) unless federal action would be more effective than cantonal or municipal action.
EU environmental regulations do not directly apply to Switzerland, as the country is not a member of the EU or the European Economic Area, whose non-EU members have agreed to align their environmental legislation with the EU acquis. Switzerland is, however, a member of the European Free Trade Association and has established bilateral agreements with the EU in various areas, covering for instance agriculture, public procurement, and air and road traffic. In that context, the country integrates certain aspects of EU legislation into national legislation, while retaining its prerogatives on environmental policy. Switzerland is a member of the European Environment Agency and is involved in its work (Box 2.1). The country also participates in the European Network of the Heads of Environment Protection Agencies and the network of Heads of European Nature Conservation Agencies.
The first bilateral agreements between Switzerland and the EU date back to the 1970s and were mainly about mutual market access. Another round of accords was negotiated in 1999 and included agreements on public procurement and agriculture to facilitate Swiss-EU trade. In addition, two agreements on air and road traffic dealt with opening the transport market but also contributed to the shift of transalpine freight traffic from road to rail and introduced a heavy vehicles tax, thus promoting environment-friendly measures.
A third round of bilateral agreements from 2004 contains an environmental chapter, which governs Switzerland’s participation in the European Environment Agency. This entails access to a Europe-wide environment database, participation in the organisation of projects and research activities, and better comparability and harmonisation of Switzerland’s activities with those of neighbouring countries through exchange of information.
Source: FDFA (2017), Bilateral agreements, www.fdfa.admin.ch/dea/en/home/bilaterale-abkommen/abkommen-umsetzung/abkommenstexte.html.
Under the Federal Constitution, each of the 26 cantons2 has its constitution and laws, which must be compatible with those of the Confederation. Cantons also have their own parliaments, governments and courts. Cantons have sole responsibility for implementing environmental policy on most issues, though they share implementation with the federal government on the buildings programme, which aims to improve energy efficiency in buildings (Chapter 3) (FOEN, 2017). Cantons often delegate water supply and sanitation, municipal waste management and local public transport to large municipalities. Small municipalities, especially in rural areas, may lack the capacity to carry out such tasks, which are then undertaken by the canton. Most cantons have an intermediate level of government, the district, responsible mostly for judicial matters. In addition, some forest agencies are at the district level.
Switzerland has 2 325 municipalities (FSO, 2016a). Around one-fifth are cities or large towns, which have elected councils. Smaller municipalities reach decisions via a communal assembly, in which all residents who are entitled to vote can participate. The degree of municipal autonomy varies considerably. Generally, municipalities have direct responsibilities in local planning and local taxation (property tax, rent tax and charges on waste, water and sanitation) (Petitpierre, 2015).
2.1. National institutions and horizontal co-ordination
The Federal Assembly (the Swiss parliament) has two chambers with identical powers. The National Council, the lower chamber, represents the populace; the number of deputies sent by each canton depends on the size of its population. The Council of States, the upper chamber, represents the cantons; it comprises two deputies from each canton (including one from each half-canton). Deputies to both chambers are elected directly by Swiss citizens (according to federal and cantonal rules, respectively) and are not bound by instructions from their cantonal government.
The Federal Assembly elects the seven members of the Swiss government, the Federal Council. Each council member heads a federal department. The departments are roughly equivalent to ministries, but their scope is generally broader than in other OECD countries. Each department consists of several federal offices and specialised agencies.
The Federal Department of the Environment, Transport, Energy and Communications (DETEC) oversees policy making in environmental protection, energy, transport, land use planning and communication via, respectively, the Federal Office for the Environment (FOEN), the Swiss Federal Office of Energy (SFOE), the Federal Office of Transport, the Federal Roads Office, the Federal Office of Civil Aviation, the Federal Office for Spatial Development (ARE) and the Federal Office of Communications. Communication and co-ordination among the four DETEC offices needs to be strengthened.
The Federal Department of Economic Affairs, Education and Research (EAER) includes the Federal Office for Agriculture (FOAG), the State Secretariat for Education, Research and Innovation, and the State Secretariat for Economic Affairs, which oversees issues related to economic and labour market policy. The Federal Department of Finance mainly deals with the state budget and fiscal policy (Petitpierre, 2015).
The Inter-departmental Sustainable Development Committee is the only environment-related inter-ministerial co-operation mechanism. Established in 2004 under the aegis of ARE, it meets regularly to oversee implementation of the Sustainable Development Strategy. Members represent around 35 federal agencies (DETEC, 2016).
2.2. Subnational institutions and vertical co-ordination
Cantons can enact cantonal environmental legislation pursuant to federal environmental law. They also have key implementation and enforcement responsibilities with regard to federal and cantonal environmental legislation. Each canton has an environment department, whose responsibilities sometimes extend to other sectors, such as transport, land use, agriculture and energy. Cantons vary in how they carry out their tasks, particularly as regards the extent to which they delegate them to municipalities. FOEN supervises cantonal implementation of federal law to ensure that it is uniform throughout the country. However, there are no formal oversight procedures, systematic evaluation or indicators of cantonal performance. This lack of feedback is a major impediment to reform of federal environmental policy.
Developing cantonal environmental performance indicators and using them for regular reporting to the Confederation would contribute to more consistent nationwide implementation of environmental law. The US Environmental Protection Agency, for example, has developed a compliance assurance review framework to ensure a level playing field across states and thus limit federal intervention. The review is conducted at least every four years and the framework is based on a dozen core indicators covering compliance monitoring, civil enforcement and data management (Mazur, 2011).
The 2007 EPR recommended enhanced co-ordination between cantons and the Confederation. In 2013, a FOEN-commissioned study of implementation gaps in environmental law confirmed that some were due to a lack of such co-operation. Survey data from the 26 cantons revealed that key implementation issues were related to biodiversity, landscape protection and related land use (Figure 2.1). It should be noted, in connection with this, that Switzerland has recently adopted the action plan of its 2012 biodiversity strategy under the Convention on Biological Diversity (Chapter 5). The plan will define institutional responsibilities and measures to ensure that biodiversity objectives are met.
The 2013 study recommended increased monitoring by the Confederation, exchange of best practices and the establishment of institutional mechanisms to strengthen collaboration among cantons. However, the next steps were not clearly identified (FOEN, 2013b). Switzerland should ensure that all necessary measures, supported by sufficient resources, are in place to implement these recommendations.
Instead of a formal reporting mechanism to ensure federal-cantonal co-ordination, Switzerland relies on soft mechanisms to facilitate information exchange and capacity building. For example, FOEN is a permanent invitee to the Conference of Heads of Environmental Protection Services (CCE), made up of the heads of the cantons’ environment departments. The CCE’s mandate is confined to developing guidance documents on various environmental issues. It has regional working groups on the main environmental issues, such as air, waste, contaminated sites, ecosystems, biodiversity, water and noise (CCE, 2016). However, not all cantons participate in the working groups, municipalities are not systematically invited and overall co-operation is often complicated by the difference in cantons’ approaches to implementation of federal legislation. FOEN thus has a clear explanatory role to play in the CCE meetings, which constitute an essential tool for enhancing vertical co-ordination. Comprehensive coverage of topics and increased cantonal and municipal participation would also help strengthen the CCE’s role. Other similar thematic networks include the Conference of the Delegates for Nature and Landscape Conservation, the Conference of Heads of Forestry Services, the Conference of the Directors of Public Works, Land Use and Environment, and the Conference for Forestry, Wildlife and Landscape.
Other vertical co-ordination initiatives include Cercl’Air, an association of some 230 members that brings together the cantonal and federal authorities as well as academics to discuss air quality issues. Similar associations exist for waste, noise, water and land. In addition, the SFOE’s SwissEnergy provides a discussion platform on energy efficiency and renewable energy resources to the federal, cantonal and municipal levels as well as the business sector and non-government organisations (NGOs) (SwissEnergy, 2016). Once a year FOEN organises a roundtable in which it invites waste management companies, as well as municipal, cantonal and federal authorities, to discuss measures to tackle the problem of litter (FOEN, 2016b). Roundtables are organised for other environmental issues as well. Switzerland should promote the further development of such initiatives and would benefit from best practices in OECD countries, some of which have established permanent structures to facilitate vertical collaboration, such as the National Environmental Enforcement Co-operation Secretariat in the Netherlands and Sweden’s Enforcement and Regulations Council (Mazur, 2011).
In addition, FOEN provides guidance to cantons through so-called enforcement aids – guidelines on a vast array of environmental topics aimed at harmonising implementation and enforcement of environmental law across the country. These guidelines are extremely useful and well prepared. They enhance the effectiveness of direct regulatory approaches by combining them with an information instrument. Switzerland should pursue the publication of enforcement aids in consultation with cantons, extend their coverage and update existing ones as legislation develops.
Federal-cantonal programme agreements are another form of vertical co-ordination. One such agreement may describe, for example, environmental challenges in a canton and measures to address them. The agreements were introduced in the 2008 fiscal equalisation reform, which established new requisites for federal budgetary transfers to the cantons (FDF, 2007).
In accordance with OECD best practices, municipalities co-operate among themselves via the Association of Swiss Communes and the Swiss Union of Cities. The former includes around 70% of municipalities and promotes co-operation, including in the area of environmental protection; the latter represents Swiss cities in cantonal and federal decision making and develops policy guidance documents for cities. In addition, around 360 towns belong to the Energy City network, aimed at promoting energy efficiency and renewables projects in line with the 2013 federal Energy Strategy 2050 (ASC, 2016; SVC, 2016). This follows a common trend in OECD countries, in which municipal associations are increasingly incorporating environmental considerations in their agendas, thus creating opportunities for strengthening capacity building and economies of scale to develop environmental infrastructure.
3. Regulatory framework
The Constitution (Articles 73 to 80) sets out the main principles of sustainable development, environmental protection, spatial planning, water protection, forest protection, nature conservation, hunting and fishing, and animal welfare. Each principle is developed in the 1983 Environmental Protection Act (EPA), supplemented by other federal acts and ordinances (Table 2.1). The 2011 Act on Reduction of CO2 Emissions, the heart of Swiss climate policy with its 2012 ordinance, sets an emission reduction target for 2020 and includes instruments to achieve the target in buildings, transport and industry. The main air quality legislation is the 1985 Ordinance on Air Pollution Control (OAPC), which defines limit values for atmospheric pollutants and the design of preventive measures. The latest OAPC amendment, which entered into force in April 2017, softened requirements for wood burning, which is now allowed for heating in small private combustion plants. After Switzerland ratified the Aarhus Convention in 2014, the EPA was amended with provisions on access to environmental information (Petitpierre, 2015).
The legal provisions concerning water are numerous. The 1991 Waters Protection Act (WPA) and a 1998 ordinance lay down the main rules for water quality preservation, outlining protection measures and governing residual flows and sewage treatment. An amendment of the WPA in 2011 regulates hydropower plants in terms of hydropeaking and obstacles to fish migration and sediment transport; it also goes beyond water quality requirements by recognising the habitat function of rivers and lakes for both flora and fauna (e.g. by allowing sufficient space for rivers and rehabilitating dyked watercourses). More specific laws complement the WPA, including a 1991 watercourse management act that regulates flooding and an act on the granting of water use rights for hydropower. Soil quality is regulated by a 1998 ordinance on damage to soil. Land use planning is covered by the 1979 Spatial Planning Act (SPA) and a 2000 ordinance. The SPA was amended in 2014 to make expansion of building zones conditional upon a projected increase in population (Chapter 4).
The 1966 Act on the Protection of Nature and Cultural Heritage (NCHA) and associated 1991 ordinance aim to protect fauna, flora and both natural and historical landscapes. Special biotopes of national importance, such as wetlands are subject to inventory and their protection is financially supported by the Confederation. The Forest Act and 1992 ordinance provide, among other matters, for prohibition of clearing and of motor vehicle traffic in forests. The Forest Act was amended in 2017 to better protect forests against pests and climate change, allow increased exploitation and use of indigenous wood and improve competitiveness of the forestry sector. The 1986 Act on Hunting and Protection of Wild Mammals and Birds and 1988 ordinance aim at sustainable exploitation of game resources and protection of wildlife. The 1991 Fishing Act aims to protect fish stocks and their natural environment (e.g. by regulating issuance of fishing permits).
The 1990 Waste Treatment Ordinance lays down the main rules for waste collection and disposal (incineration, composting, landfilling). An amendment that entered into force in 2016 focuses on limiting and reducing waste as well as targeted recycling; it was later renamed the Ordinance on Waste Limitation and Disposal. The 2000 Ordinance on Beverage Containers aims primarily at recycling of glass and PET packaging. The 1998 Ordinance on the Return, Take-back and Disposal of Electrical and Electronic Equipment introduces a prepaid disposal tax as well as extended producer responsibility (obliging merchants to take back used equipment free of charge). The 1998 Ordinance on Remediation of Polluted Sites focuses on former landfills and provides for the establishment of a cadastre of polluted sites.
The 2000 Act on Protection against Dangerous Substances and Preparations (Chemicals Act) aims to prevent harmful health and environmental effects of chemical substances. The act also covers the use of microorganisms for biocidal or phytosanitary purposes.
3.1. Evaluation of policies and regulations
Switzerland makes use of several ex ante environmental evaluation tools. In 2007 FOEN developed a manual on how to carry out economic assessment (known by the German acronym VOBU) of environmental policies and legislation at all levels of government. VOBUs aim to improve cost-efficiency and effectiveness of environmental policy and enhance transparency about the economic benefits of environmental protection. FOEN had already been assessing the economic effects of environmental measures on an ad hoc basis, but since 2007 VOBUs have been systematically used. Over the review period, almost 70 VOBUs were undertaken on a wide array of bills, plans and policies, including on CO2 emissions, micro-pollutants, biodiversity, waste and green economy. Their findings led to re‐examination of objectives and better evaluation of alternatives. In 2016, the results of a VOBU on climate policy informed amendment of the CO2 law, especially with regard to the economic impact on businesses, households and the public sector. The distributional impact of the CO2 tax was also considered.
The systematic use of VOBUs for evaluating environmental policies is commendable. A critical view, however, should be taken with regard to the overlapping of ex ante evaluations in Switzerland. First, VOBUs duplicates energy impact assessments (known by the German acronym EFS), which aim to improve the energy efficiency of planned regulation. Second, the VOBU manual duplicates to some extent the guidelines on federal regulatory impact assessment (RIA), which is mandatory for all new legislation and may include environmental considerations, though the main focus is the overall national economy. Third, Switzerland also carries out sustainability assessment (SA) of draft regulations, which addresses the three pillars of sustainable development (economic, social and environmental). SA is mandatory in agriculture and transport (Jakob et al., 2011). Such overlaps led the Federal Audit Office to ask the administration to ensure consistency between the VOBU manual and the RIA and SA procedures (SECO, 2016).
Contrary to common EU practice, Switzerland has not introduced strategic environmental assessment (SEA) requirements at the national level. In 2008 the Federal Council proposed amending the EPA and SPA to include elements of SEA so as to improve co-ordination between environmental protection and spatial planning. To this end, the council requested FOEN and ARE to publish implementation guidelines and studies. FOEN and ARE released a guidance document in 2012 aimed at helping cantons develop ex ante evaluations on environment, health and sustainable development issues when designing land use plans. This was followed in 2014 by a study on SEA recommending that Switzerland introduce it in the EPA and SPA, and proposing that it include a screening procedure, analysis of alternatives, a strong participatory process and monitoring. The study concluded that voluntary SEA, as conducted in Vaud canton, could be a first step in introduction of SEA at the federal level and contribute to its acceptance by public authorities, as has happened in Geneva canton (Box 2.2). FOEN is updating the 2014 study, and including examples and frequently asked questions on SEA, to further raise awareness on the instrument.
Geneva is the only canton that has made SEA of cantonal spatial planning (structure plans and land use plans) compulsory. The legal basis is laid down in the cantonal regulation transposing the federal ordinance on environmental impact assessment. SEA has to be conducted under the supervision of the canton’s environmental department and must include a solid analysis of alternatives. SEA is limited to spatial planning; it does not cover other plans and programmes likely to have an environmental impact. A certain level of flexibility is allowed in the development of SEA. The canton does not issue stringent methodological requirements, but publishes a guidance document to inform preparation of local land use plans.
In addition, since 2006 SEA of cantonal spatial planning has been carried out on a voluntary basis in the Vaud canton. SEA is not anchored in cantonal law and no guidance document is available; instead the procedure is individual, with oversight responsibility assigned to the cantonal environmental department. As in Geneva, the scope of SEA is confined to spatial planning.
Source: FOEN (2016c), Evaluation environnementale stratégique (Strategic Environmental Assessment), www.bafu.admin.ch/bafu/fr/home/themes/eie/evaluation-environnementale-strategique--ees-.html.
The 2007 EPR recommended that environmental assessment be improved in transport, the energy sectors and land use planning. It noted that Switzerland had not ratified the 2003 United Nations Economic Commission for Europe (UNECE) SEA protocol to the Espoo Convention on Environmental Impact Assessment in a Transboundary Context. There are plans to include elements of SEA (as a so-called efficiency evaluation strategy) in assessment of cantonal land use plans so as to better integrate environmental considerations into spatial planning. However, despite FOEN’s support of the initiative, it seems unlikely that the parliament will be willing to amend the SPA and EPA so soon after their latest update in 2014. Switzerland should support a prompt introduction of SEA requirements at the federal level. It should also consider ratifying the UNECE protocol on SEA.
Ex post evaluations of environmental law are not conducted systematically. Recent ex post evaluations were carried out on the CO2 tax in 2015 and on the federal and cantonal buildings programme in 2016. The Federal Office of Justice convenes a roundtable of federal officials to evaluate selected topics three times a year; the last environment-related discussion was held in 2001, when nature and landscape were examined (FOJ, 2016).
3.2. Environmental standards
This section provides a brief overview of environmental standards related to air quality and waste management. The EPA sets national-level standards, which cantons are expected to comply with or surpass. Cantons may set stricter emission standards to address local air pollution hotspots. Direct regulatory instruments for water quality and biodiversity are addressed in Chapters 4and 5, respectively.
Air quality
The OAPC sets air quality standards (emission limits) for conventional pollutants such as sulphur dioxide (SO2), nitrogen dioxide (NO2), carbon monoxide (CO), ground-level ozone (O3) and particles (PM10) as well as for toxic contaminants such as heavy metals. The Swiss air quality standards are generally but not always in line with the World Health Organization recommended limits. They are stricter for NO2 and O3 but less stringent for the daily mean of SO2. Emission standards are established for a range of organic and inorganic substances and carcinogens3 for both stationary and mobile sources. New and existing installations are subject to the same emission standards. However, existing installations are given a grace period (usually five years, up to ten in exceptional circumstances) to comply with new standards.
Operators of stationary sources are required to provide cantons with information on the type and level of emissions as part of routine self-monitoring and reporting (Romy and Dürig, 2015). Where ambient air quality standards are exceeded (pollution hotspots), the canton must draw up a five-year action plan indicating the sources of emissions, measures to reduce them, deadlines and the enforcement authority responsible. Where it is expected that action plan targets will not be met, the canton is entitled to set more stringent standards for major emission sources for the duration of the plan (Petitpierre, 2015).
Waste management
The EPA sets out a hierarchy for municipal solid waste (MSW) management: prevention, reuse, recycling, safe disposal. Cantons are in charge of waste management planning while municipalities are responsible for collection and disposal of non-hazardous MSW. Waste management plans regulate the number, location and type of waste treatment and disposal facilities, whose licensing is the responsibility of cantons.
The EPA also covers special (hazardous) waste, which is defined in line with the EU hazardous waste directive (91/689/EEC). The federal ordinance on hazardous waste movements establishes a licensing system, under FOEN, for domestic and international transfers of hazardous waste; the system is compliant with the Basel Convention on the control of international movements of hazardous waste and its disposal (Petitpierre, 2015).
3.3. Environmental impact assessment and permitting
Environmental impact assessment (EIA) is required for projects that are likely to have a significant impact on the environment. The legal basis is in the EPA and its 1988 EIA ordinance, which details the types of projects that are subject to EIA; these include transport infrastructure, power and industrial plants, refineries and waste facilities. Most EIAs are the sole responsibility of cantons. Some, such as major energy projects or forestry projects of more than 0.5 hectare, require FOEN oversight.
An initial screening by cantonal or federal authorities (depending on the case) determines whether a project poses a risk of environmental harm. If it does, the applicant is required to submit an environmental impact report to the relevant authority. This report and authorities’ draft evaluation must be made available to the public for consultation for about 30 days (it varies by canton). Finally, the decision to authorise a project or not is published in the official journal. The decision is an integral part of the procedure to obtain a construction permit (Petitpierre, 2015; FOEN, 2013a).
Switzerland lacks integrated permitting, in contrast with EU practice (Industrial Emissions Directive, 2010/75/EU), as the 2007 EPR pointed out. Instead, most cantons issue operating permits that cover specific environmental issues, such as air, water, waste and noise. EU integrated permits usually apply to high-risk installations and cover pollution releases to air, water and land; waste generation; raw material use; energy efficiency; noise; accident prevention; and site restoration after closure. Conditions are based on best available techniques. For facilities with lower environmental risk (most of which are small and medium-sized enterprises, SMEs), many EU countries have introduced simplified permitting based on binding sector-specific criteria, which entail a lower administrative burden both on the regulator and facility operators (Mazur, 2011) (Box 2.3).
The following three criteria are generally applied when designing general binding rules (GBRs):
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There has to be enough regulated entities in a sector to ensure the effectiveness of GBRs.
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The state of technology and techniques in the sector must not be so fast moving that rules cannot be updated frequently enough.
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Facilities must have similar, low-risk environmental impact.
The Netherlands has differing requirements for three categories of installations: facilities characterised by minimal impact are regulated by general provisions, with no need to notify the authority responsible; installations that have a moderate impact are covered by activity-specific GBRs and have to notify the authority; and installations with potentially large impact must obtain an environmental licence in line with activity-specific GBRs. Dutch GBRs establish provisions both quantitative (emission limit values) and qualitative (specific techniques or management practices). They cover about 40 000 companies engaged in activities related to hazardous substances, plastics, metals, paper and textiles, food products, vehicles and other motorised equipment, and other sectors.
In the United Kingdom, the system takes the form of exemption from permitting with no mandatory notification to environment authorities. In France, installations under the so‐called déclaration regime are subject to GBRs that are laid out in standardised ministerial orders and included in a declaration sent by the prefect to the operator. As inspection services do not usually review declarations, environmental authorities often lack knowledge of low-risk installations. Some US states address a similar issue by requiring operators to regularly report GBR compliance to the relevant authority.
Source: Mazur (2012), “Green Transformation of Small Businesses: Achieving and Going Beyond Environmental Requirements”, https://doi.org/10.1787/5k92r8nmfgxp-en.
The SPA requires a building permit for any new construction or alteration of existing buildings. Except national infrastructure projects, for which the permitting responsibility is assigned to the Confederation in consultation with cantons and the public, building permits are usually issued by the municipality where the construction work is planned, in line with the municipal master plan (Section 3.4). However, cantons vary widely in their environmental requirements for permits. These requirements, such as noise pollution standards, do not always take into account the whole environmental performance of the installation. Moreover, this approach does not differentiate requirements based on the relative environmental risk of an installation.
3.4. Land use planning
Awareness grew in the 2000s of the need to better manage scarce soil resources in a context of demographic and economic growth. In response, DETEC, the Conference of Cantonal Governments, the Conference of Cantonal Directors of Public Works, Spatial Planning and Environment, the Union of Swiss Cities and the Association of Swiss Municipalities agreed in 2006 to draw up a Swiss Territory Project (STP) under the aegis of ARE.
The project is intended to serve as a decision-making aid for activities with territorial impact at the three administrative levels. It is voluntary rather than legally binding from a legal point of view but calls for a voluntary approach. There are three complementary strategies aimed at achieving the objectives of the STP: a) delimiting territories for action, b) making moderate use of the soil by densifying the built environment while taking account of landscapes, and c) improving co-ordination of transport, energy and territorial development (CdC, 2012).
The SPA provides the legal framework and overarching principles for spatial planning and sets out the responsibilities of the Confederation, cantons and municipalities. At the national level, a non-binding countrywide strategic plan, five sector plans and two spatial concepts exist. The sector plans concern agricultural areas, transport networks, energy infrastructure, nuclear waste sites and military areas. They designate specific land use areas and are binding for subordinate plans. The spatial concepts, less specific than the sector plans, deal with landscape and sport facility planning (OECD, 2017).
Cantons are responsible for developing structure plans (i.e. master plans) under the SPA. The plans, produced in consultation with municipalities and the public, are approved by the federal government. Updated every ten years, they include public transport networks, nature conservation areas of cantonal importance and waste disposal sites. The plans are binding on the authorities; depending on the state of planning work, their information may range from orientation or interim results to firm statements. The cantonal structure plan is thus a process plan for co-ordinating and steering the next stages of spatial development already under way. Cantons are also charged with issuing land use plans containing binding provisions on how land may be used. Most cantons delegate this task to the municipalities. Many cantons, however, also provide cantonal land use plans for projects of importance for spatial planning policy, such as industrial zones and waste disposal sites. Land use planning involves the important task of setting the boundary between building zones and non-building zones, in which designation of protected areas based on landscape planning is generally imperative (VLP-ASPAN, 2012).
Large cantons often commission public-law agencies called regional planning associations to prepare their spatial planning. In Zürich canton, for example, such associations draw up regional structure plans based on the structure plan for the canton. In Aargau and Thurgau cantons, associations produce basic planning studies and provide municipalities with spatial planning support (VLP-ASPAN, 2012).
However, the lack of a guidance document to help cantons implement the SPA has contributed to a large degree of disparity in implementation of structure plans and land use plans. In addition, large cantons have more extensive and complex land use regulations than small, rural cantons. There is public debate on whether to introduce systematic "efficiency evaluation" of cantonal land use plans, which would include elements of SEA as is already the case in Geneva and Vaud cantons (Box 2.2). This would mean getting the parliament to amend the EPA and SPA (Section 3.1).
4. Compliance assurance
Compliance assurance covers compliance promotion, monitoring and enforcement, as well as liability for environmental damage. Switzerland is a member of IMPEL, the European Union Network for the Implementation and Enforcement of Environmental Law, which aims to share good practices in the application of environmental legislation.
4.1. Inspections
Cantons are in charge of inspecting for compliance with environmental law; they can decide how to carry out inspections, sometimes in co-operation with municipalities. There are no specialised environmental inspectorates at the cantonal level; instead, all non-administrative officials of cantonal environment departments have inspection powers.
For air emission sources, the OAPC mandates routine inspections carried out at least every two years for large combustion plants and every three years for other installations. For installations with emissions above a certain threshold, authorities can order more frequent inspections. The WPA requires regular inspections of sewage treatment plants and manure storage facilities, though their frequency is up to the cantons. In Lucerne canton, for example, industrial sewage discharges are inspected every three to five years for high-risk installations, while low-risk ones are almost never inspected due to resource constraints. Unplanned inspections triggered by accidents, violations or formal complaints are usually conducted by cantonal authorities. In 2016 around 60% of inspections were triggered by accidents. This is a high share by international standards and demonstrates insufficient risk-based targeting of compliance monitoring.
Cantons do not evaluate compliance assurance outcomes (i.e. whether regulated entities have taken measures to ensure that provisions of environmental law are being met), which further impairs inspection planning. The 2013 FOEN-commissioned study on implementation gaps (Section 2.2) showed that insufficient compliance assurance monitoring was a major challenge in implementation of environmental law. Surveys conducted for the study confirmed a direct correlation between the status of implementation and the inspection gaps (Figure 2.2) (FOEN, 2013b). The main reason given for the inspection gaps was resource constraints. To address such inspection deficits, the study recommended developing synergies in inspection among the cantons (e.g. peer reviews, benchmarking, inspection staff pooling).
Most cantons outsource inspections. In Lucerne, for example, regulated installations must pay directly for subcontracted inspection services (e.g. sampling and measurement). If a violation is detected, it is up to the canton to ensure that the installation rectifies it. In Basel-Land and Basel-Stadt cantons, 80% of on-site inspections for air emissions are undertaken by subcontractors. Another example is the nationwide inspection of dry cleaners and gas stations, which is entrusted to specialised firms to ensure a consistent approach in all cantons. Building on these good practices, Switzerland could consider developing standard procedures for subcontracted inspection services.
As a general rule, inspections are media-specific. For example, cantons have published a guidance document for air emission inspections within Cercl’Air. Lucerne canton has produced its own manual for inspections in the car industry. Switzerland should consider introducing integrated inspections across environmental media to streamline inspection costs and improve compliance monitoring.
4.2. Enforcement
The EPA provides for administrative injunctions and orders of corrective actions (including plant closure in extreme cases) in response to non-compliance. They are issued by cantonal authorities, which are responsible for enforcement except where the federal government has direct powers. Once a violation is determined, the relevant cantonal or federal authority sends a letter prescribing corrective action, which can be followed by a more formal order with a second deadline if non-compliance persists. Administrative fines may be imposed under cantonal law. Both the type of offences involved and amount of fines vary by canton, which industry perceives as unequal treatment across cantons. Switzerland should consider preparing an enforcement aid to harmonise environmental enforcement across the country.
Serious infringements fall under criminal law. For example, negligence leading to a serious environmental accident, illegal release of harmful substances, or breach of licence conditions for transport and disposal of hazardous waste may result in fines of up to CHF 20 000 (around EUR 18 000) and/or up to three years’ imprisonment, according to the EPA. In addition, the penal code enables courts to confiscate the profit gained by infringing the law, e.g. money saved by not taking pollution abatement and control measures. In practice, however, not all cantons apply this penalty.
Most cantonal police agencies have an environmental unit, which is in charge of investigating suspected criminal activity. The National Environmental Security Task Force brings together representatives of environmental enforcement authorities, police, customs officials and the judiciary at the federal and cantonal levels. It was established following a 2012 INTERPOL initiative encouraging countries to set up a co-operation mechanism among law enforcement agencies to fight environmental crime more effectively.
Prosecution can be initiated by environment police, federal, cantonal and municipal government authorities, or environmental NGOs that are directly affected by the offence. However, environmental cases must be brought to court by public prosecutors, who often lack environmental expertise, so this has not proven very effective. Forming a specialised body of prosecutors specialised in environment or at least providing environmental training to public prosecutors would significantly enhance enforcement of environmental law (Petitpierre, 2015).
4.3. Environmental liability
Liability for damage to the environment
Environmental liability is regulated by the EPA, which establishes that the owner and operator of a stationary source of pollution are jointly liable for any environmental damage. It is a strict liability system, in which the owner or operator can only be exempted in case of force majeure or if the liability lies with a third party. With respect to past contamination, a provision adopted in 2013 requires the owner or operator to pay an “appropriate” security deposit whose amount varies between 5% and 20% of the expected investigation, remediation and monitoring cost, depending on the canton. Cantons may require operators to take out private liability insurance. If liability cannot be established or the liable entity is unable to pay, the public authority is ultimately responsible for bearing the clean-up cost.
The EPA does not specify the type of damage regulated and thus the scope of liability. The Code of Obligations (general liability law) focuses on health and does not cover environmental damage. An expert commission set up to reform the code proposed expanding its scope to the environment and giving citizens and environmental NGOs the right to claim compensation (Petitpierre, 2015). Enacting such reform would give environmental liability a stronger legal basis than the EPA alone.
The cost of remediating past contamination must be divided among the responsible parties according to their share of the pollution. Strict liability does not apply when pollution occurred prior to acquisition of a facility by an owner who could not have had any knowledge of it (Romy and Dürig, 2016).
Contaminated sites
The EPA requires cantons to draw up a register of contaminated sites and make it available to the public. It also requires remediation of the registered sites. Switzerland has about 38 000 contaminated sites, out of which 15 000 need investigation to assess their environmental impact. It is estimated that only about 4 000 need remediation. The remediation of the severely contaminated sites (e.g. landfills for hazardous waste) was completed in 2017. Most contaminated sites are located on the industrialised Swiss Plateau. The bulk of them are former waste disposal and industrial sites.
The Ordinance on the Remediation of Polluted Sites (1998) established the procedure for investigation, remediation and monitoring of contaminated sites and set soil decontamination standards. The Federal Council may enact regulations on the urgency of remediation work, but there are no remediation programmes for contaminated sites in place at any government level (Petitpierre, 2015). Cantons can request partial repayment (40%) of the remediation costs from the federal government on the basis of the 2008 Ordinance on the Charge for the Remediation of Contaminated Sites, which establishes a special fund financed by a charge on the disposal of Swiss hazardous waste in landfills in Switzerland and abroad.
4.4. Promotion of compliance and green practices
A few cantons provide firms with guidance on environmental compliance requirements for specific sectors. For example, Lucerne canton has an online tool for efficient resource use in the food industry where companies can learn tips, benchmark their performance and calculate their savings potential. The canton also disseminates information on requirements for sewage pretreatment. But this is the exception rather than the rule. Compliance promotion through information measures is not common in Switzerland. While the federal government uses tools to encourage good environmental performance, cantons are only starting to give compliance promotion the attention it deserves. More should be done by cantons on promoting compliance with environmental law, which reduces social costs (by enhancing environmental protection) and regulatory costs (by increasing the efficiency of compliance monitoring and enforcement). Compliance promotion is particularly effective when targeted at the SME community.
Greening public procurement
The 1994 Act on Public Procurement and its 1995 ordinance set environmental requirements on public procurement. A case in point is paper, which must meet environmental criteria for public purchase. A revision of the Public Procurement Act now under way will include sustainability as one of its objectives and will establish criteria related to the production process. The government is also committed to energy-efficient buildings. In addition, there is a knowledge-sharing platform on sustainable public procurement (FDF, 2017; OECD, 2015). FOEN plans to conduct green public procurement (GPP) training for purchasers. All these developments are in line with the OECD acquis on GPP.4
However, there is still substantial room for strengthening GPP. Except in the construction sector, where there are recommendations and standards concerning green and sustainable buildings, Switzerland has no overarching policy framework that pulls its GPP initiatives together. It also lacks GPP targets and definitions of what counts as “green” or “sustainable”. Setting GPP targets would boost the market for eco-labelled products (Chapter 3). Switzerland also needs a process to monitor trends in GPP. The fact that most public procurement is done by cantons and municipalities makes GPP monitoring more complicated, as each canton or municipality may take a different approach (OECD, 2015). This reinforces the need for an overarching GPP policy framework.
Corporate environmental management
The “co-operation principle” embodied in the EPA (Article 41a) promotes close collaboration among government levels and between them and stakeholders when implementing regulation. This includes the use of voluntary programmes to achieve environmental goals (Petitpierre, 2015). The 2013 Green Economy Action Plan and its update in 2016-19 also aim to provide targeted measures supporting voluntary commitments by business, science and society to conserve natural resources. A government web portal, Green Economy Dialogue, was set up in 2015 to share information and spur innovative practices on efficient natural resource use (Green Economy Dialogue, 2016). In line with measure 11 of the action plan, the Federal Council in 2014 founded an expert network, Swiss Network for Resource Efficiency (Reffnet.ch), to promote corporate resource efficiency in non-energy sectors. Close to 200 firms, primarily SMEs, voluntarily use its advisory services (Chapter 3).
Most voluntary agreements between industry and cantonal authorities seek to meet cantonal energy efficiency targets. The Energy Agency for Economy (EnAW) and the Swiss Cleantech Agency (ACT) provide audits to firms, on request, to help them prepare voluntary agreements. EnAW was created by industry in 2001 to help members set energy efficiency and CO2 reduction targets. ACT was mandated in 2009 by the Confederation to facilitate application of climate and energy legislation. SMEs can get financial support from the Foundation for Climate Protection and Carbon Offset (known by the German acronym KliK) to undertake such audits (Petitpierre, 2015). KliK was established in 2012 by the Swiss oil industry to offset CO2 emissions in countries producing Swiss imports of road fuels by supporting greenhouse gas reduction projects in Switzerland (Chapter 3).
Voluntary programmes are also used in combination with market-based instruments. For example, the Swiss Association of Waste Treatment Facility Operators has put forward a proposal for its members to reduce CO2 emissions from waste incineration by 200 000 tonnes by 2020 compared to the 2010 levels. Facilities that participate would be exempt from participation in the Swiss GHG emission trading system.
Adoption of environmental management systems by Swiss businesses has been growing rapidly despite the absence of policy incentives (e.g. lower permitting fees, less frequent inspections, reduced fines) for ISO 14 001 certification. The number of certified businesses increased more than six fold over 1999-2015, a rise driven solely by market demand (Figure 2.3).
5. Promoting environmental democracy
As the 2007 EPR recommended, in 2014 Switzerland ratified the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention). This strengthened the country’s legislation and practices on access to environmental information, public participation in decision-making processes related to environmental issues, and access to justice on environmental matters.
5.1. Public participation in environmental decision making
Switzerland has a long tradition of involving the public in environmental decision making. Citizens are called upon to vote on popular initiatives, optional referendums or mandatory referendums. Referendums are mandatory for any proposed amendment to the Constitution. Each citizen has the right to launch an optional referendum against a law proposed by the parliament if it collects 50 000 signatures within 100 days of the bill’s official publication. For example, a proposed amendment of the Energy Act was approved on 21 May 2017 following an optional referendum (Chapter 3). In such cases, only a majority of the Swiss electorate is required for approval (the cantons are not consulted). Citizens may also call for referendums through a popular initiative (often followed by a government counter-proposal). Launching a popular initiative requires collecting supporting signatures from 100 000 voters. To be approved, popular initiatives require not only a majority of the electorate but also a majority of cantons. For example, the Water Protection Act was amended in 2011 following a 2006 popular initiative on living waters, which had been withdrawn following a counter-proposal by the government (Chapter 4). Since 2000, nearly 20 referendums and popular initiatives have focused on environmental issues, though few have been approved (Box 2.4). Even when refused, they can nevertheless help strengthen environmental policies by engaging citizens in public environmental debate and exerting pressure on the government. EIA approval is also subject to broad public participation (Section 3.3), as is the development of cantonal structure plans and land use plans (Section 3.4).
Since 2000, Swiss voters have approved only six referendums and popular initiatives on environmental matters, including one popular initiative (Table 2.2). While this key instrument of Swiss direct democracy has proved effective in engaging the population and influencing the legislative process, environmental referendums have often represented missed opportunities to improve environmental policies.
In May 2017, almost 60% of Swiss voters backed the government’s plan to amend the Energy Act and gradually phase out nuclear power. The plan includes a ban on new nuclear plants, increased support to renewable energy and promotion of reduced energy consumption (Chapter 3). The amended law aims at reducing Switzerland’s energy-related environmental impact while ensuring energy security. The result is particularly significant in light of the last referendum calling for a phase-out of nuclear energy, in November 2016. That proposal failed on the grounds that it would compromise energy security, yet the vote was regarded as a victory by environmental organisations, which saw it as confirming that a large segment of the population wanted to opt out of nuclear power in the long run.
In September 2016, 64% of the electorate voted against a proposal to foster a green economy. The initiative was launched to boost resource efficiency and move towards a circular economy by requiring the government to introduce new regulations and tax incentives to significantly reduce consumption by 2050. Geneva was the only canton voting in favour of the initiative, which elsewhere was perceived as too ambitious and potentially having a negative impact on competitiveness, growth and employment.
In 2015 a proposal to replace the value-added tax (VAT) with a tax on non-renewable energy forms (oil, gas, coal and uranium) won only 8% of the vote, with the parliament, government and all cantons being against it. The main argument was that VAT revenue was stable and fairly predictable, covering more than a third of all federal spending (CHF 23 billion out of CHF 65 billion), and that creating tax incentives to change energy consumption behaviour, if effective, would generate less revenue.
In 2013, a referendum to amend the SPA was approved. It aimed at limiting urban sprawl over the following 15 years by matching building zones with foreseeable infrastructure needs, and introduced a 20% tax rate on land transactions meant for development.
5.2. Access to environmental information
The government has improved public access to environmental information. In particular, since ratification of the Aarhus Convention in 2014, the EPA has been amended (new Article 10e) to define the type of environmental information federal and cantonal authorities must provide to the public. Although the law addresses national security and commercial confidentiality concerns, withholding information for these reasons can now be challenged in court. More generally, the 2004 Freedom of Information Act gives citizens the right to obtain information held by federal authorities, free of charge. Also, the WPA and the Chemicals Act include a duty to inform the public about risks related to hazardous substances and pathogens.
Ratification of the Aarhus Convention also resulted in the Federal Council being obliged to submit a state of the environment report to the Federal Assembly every four years. The 2015 publication Environment Switzerland, available online, was the first issued under the new procedure; FOEN had prepared previous state of the environment reports but did not submit them to the Federal Assembly. The 2015 Federal Council report included 44 environmental indicators, with a particular focus on energy, transport and climate change (Chapter 1) (FSO, 2016b). The report also contributed to meeting the 2007 EPR recommendation calling for systematising the use of environmental indicators.
Large enterprises are required by law to continuously monitor their pollutant releases to air, water and land, and report the results to the European Pollutant Release and Transfer Register. In 2014, 256 facilities took part.
5.3. Access to justice
Under Swiss law, citizens and organisations have a right to bring environmental matters before civil or criminal courts, provided they have standing: they can request prosecution or bring suit only if they produce evidence that they are suffering health and environmental damage as well as economic losses. For example, if a municipality wants to sue a firm on nuisance grounds, it has to demonstrate that its territory is directly concerned.
Federal laws usually contain provisions on grounds for appeal and the administrative authority or court concerned. When they do not, the 2005 Act on the Federal Court and the 1968 Federal Administrative Procedure Act set out conditions for judicial and administrative appeals, respectively. Decisions by cantonal authorities may only be appealed in cantonal courts, whose decisions can in certain cases be appealed to the Federal Court (Romy and Dürig, 2016; Petitpierre, 2015).
Most Swiss environmental NGOs, such as Greenpeace, the World Wide Fund for Nature and the Swiss Foundation for Landscape Conservation, have special statutory standing to appeal rulings and decisions of federal and cantonal authorities that fall within the scope of the EPA and NCHA. For the EPA (Article 55), this includes decisions on land use planning, building construction or modification of installations for which EIA is required (Section 3.3). In such cases, NGOs may claim violation of EPA provisions only if they took part in the EIA procedure from the start and filed opposition to the decision before it is handed down (Petitpierre, 2015). Switzerland should consider providing public financial support to help NGOs (instead of non-specialist lawyers) make the case for environmental protection before the courts. New Zealand, for example, has an Environmental Legal Assistance Fund that covers the costs of legal representation for NGOs defending the public interest in environment-related cases.
5.4. Environmental education
Environmental education in Switzerland is focused on sustainable development rather than on purely environmental or green growth issues. Over the last decade, significant progress has been made in including sustainability issues in curricula. In 2007, the Confederation and cantons drew up a joint plan to support integration of sustainable development in curricula and teacher training programmes As a result, most primary and secondary schools include some teaching on sustainable development issues, and university pedagogical programmes have training on sustainable development.
Since 2013, the foundation Education21 has co-ordinated and promoted education for sustainable development at the primary and upper secondary levels, taking over from the Foundation for Environmental Education. Education21 acts on behalf of the Swiss Conference of Cantonal Ministers of Education, the federal government and civil society. Financing is guaranteed by contributions from the federal government, the cantons and civil society, as well as funds generated by the foundation itself. Education21 provides pedagogical and financial support to teacher training institutions, NGOs and schools wishing to foster education in sustainability issues (Education21, 2016).
As regards vocational and professional education and training, in recent years environmental aspects have been included more systematically in guidelines on such education and training for around 1 000 skill types. In addition, training in the fields of protection and sustainable use of natural resources has been reinforced.
In 2016, the Swiss University Conference, a joint undertaking of the cantons and the Confederation for higher education co-ordination and quality control, approved a new funding programme for 2017-20 called “U Change – Student initiatives for sustainable development”, replacing the 2013-16 programme “Sustainable Development at Swiss Universities” to finance innovative student projects, inter- and trans-disciplinary courses and research projects on sustainable development.
Vertical co-ordination
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Harmonise and strengthen environmental policy and law implementation across cantons by improving vertical co-ordination, promoting regular performance monitoring mechanisms and indicators; continue to disseminate best regulatory practices across cantons.
Regulatory framework
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Consider introducing integrated environmental permits for large industrial installations, based on best available techniques, to move towards a holistic approach to pollution prevention; simplify the regulatory regime for low-risk installations by introducing sector-specific general binding rules.
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Introduce requirements for SEA of plans and programmes; ratify the UNECE protocol on SEA.
Compliance assurance and promotion
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Improve the effectiveness and efficiency of compliance monitoring by strengthening risk-based inspection planning and developing guidelines for specialised inspection services; promote integrated inspections across environmental media.
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Develop federal guidance to cantons on the use of enforcement tools; strengthen sanctions for non-compliance with federal environmental regulations; consider introducing prosecutors specialised in environment or provide environmental training to public prosecutors to facilitate criminal enforcement.
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Improve the system of liability by defining damage to specific environmental media.
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Encourage voluntary compliance and diffusion of green practices among enterprises by providing sector-specific guidance, especially to SMEs, and offering incentives for environmental management system certification; strengthen green public procurement by setting targets and monitoring their achievement.
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Notes
← 1. These include most energy matters, transport and trade of hazardous waste, and strategic infrastructure.
← 2. Three cantons are subdivided into “half-cantons”, which can be considered equivalent to cantons from an administrative point of view.
← 3. As listed by the Swiss Accident Insurance Fund; includes arsenic, asbestos, benzene, cadmium and its compounds, cobalt, diesel soot and nickel.
← 4. Recommendation of the Council on Improving the Environmental Performance of Public Procurement [C(2002)3].