1The Confederation shall legislate on the protection of the population and its natural environment against damage or nuisance.
2It shall ensure that such damage or nuisance is avoided. The costs of avoiding or eliminating such damage or nuisance are borne by those responsible for causing it.
3The Cantons are responsible for the implementation of the relevant federal regulations, except where the law reserves this duty for the Confederation.
Art. 74 — Environmental Protection
#Overview
Article 74 FC gives the Confederation the task of protecting people and the environment from environmental damage. The Confederation must enact laws that prevent harmful or nuisance effects. The Cantons implement these laws.
The article is based on two important principles: First, environmental damage should be prevented before it occurs (precautionary principle). Second, those who cause environmental damage must bear the costs (polluter pays principle according to Art. 2 EPA, see Griffel, BSK BV, Art. 74 N. 34-36).
Harmful effects endanger health or wellbeing significantly. Nuisance effects disturb wellbeing without being harmful to health (Griffel, BSK BV, Art. 74 N. 16-20). The Environmental Protection Act (EPA) specifies these concepts.
The precautionary principle means: The state must act even in case of possible dangers. It does not wait until damage has occurred (Marti, Vorsorgeprinzip, S. 156). The Federal Supreme Court confirmed this during the BSE crisis: «The Confederation must take all measures that are indicated according to the state of science and experience» (BGE 132 II 305).
Example: A factory wants to build a new facility. It must already incorporate all technically possible and economically viable environmental protection measures during planning. This applies even when the limit values would be complied with (Rausch/Marti/Griffel, Umweltrecht, S. 67).
The polluter pays principle ensures cost justice: Those who pollute the environment pay for protection and cleanup. This occurs through levies (such as the CO₂ levy), fees or liability rules. Unjustified cost shifting is prohibited, as the Federal Supreme Court decided regarding waste fees (BGE 129 I 290).
The distribution of powers is clear: The Confederation prescribes the rules, the Cantons implement them. Cantons may enact stricter environmental regulations, but never weaker ones.
#Doctrine
#1. Legislative History
No. 1 The development of Swiss environmental law occurred in three phases. Until approximately 1970, there was no coherent environmental law, but only specific regulations in various enactments (Griffel, BSK BV, Art. 74 No. 1-4). Protection was limited to police law defensive measures against concrete dangers to public order and security.
No. 2 With the introduction of the environmental protection article (Art. 24septies old Constitution) in the popular vote of 6 June 1971, the Confederation received comprehensive legislative competence in the environmental field for the first time. The proposal was accepted with 92.7% yes votes — one of the highest approval rates in the history of federal votes (BBl 1970 I 773; BBl 1971 II 1401).
No. 3 The total revision of the Federal Constitution of 1999 transferred the environmental protection article largely unchanged into Art. 74 Constitution. The central innovation consisted in the explicit anchoring of the polluter pays principle in paragraph 2 sentence 2 (BBl 1997 I 236). Thus a fundamental principle already anchored in the Environmental Protection Act (Art. 2 EPA) received constitutional rank for the first time (Griffel, BSK BV, Art. 74 No. 5-6).
#2. Systematic Classification
No. 4 Art. 74 Constitution stands systematically in the 4th section of the 3rd chapter («Environment and Spatial Planning») and forms together with Art. 73-80 Constitution the constitutional foundation of Swiss environmental law. The provision is closely linked with → Art. 73 Constitution (sustainability), → Art. 76 Constitution (water), → Art. 77 Constitution (forests) and → Art. 78 Constitution (protection of nature and cultural heritage).
No. 5 In relation to fundamental rights, Art. 74 Constitution functions as a restriction provision. Environmental protection measures can justify interference with the guarantee of property (Art. 26 Constitution), economic freedom (Art. 27 Constitution) or freedom of research (Art. 20 Constitution), as case law on electric heating bans (BGE 149 I 49) and animal experiments (BGE 135 II 384) shows.
No. 6 The allocation of competences follows the proven scheme: the Confederation enacts the provisions (para. 1), the cantons implement them (para. 3). This division of tasks corresponds to the general implementation federalism according to → Art. 46 para. 1 Constitution, whereby the law may reserve implementation competences to the Confederation (Griffel, BSK BV, Art. 74 No. 37-38).
#3. Elements of the Offence / Content of the Norm
No. 7 The scope of protection encompasses «people and their natural environment» (para. 1). This anthropocentric formulation does not mean that the environment is only protected instrumentally. Rather, the prevailing doctrine recognizes an intrinsic value of nature (Griffel, Grundprinzipien, p. 45; Wagner Pfeifer, Umweltrecht I, p. 28). People are part of the environment and dependent on intact ecosystems.
No. 8 The «natural environment» encompasses all natural foundations of life: air, water, soil, flora, fauna as well as their interactions (Griffel, BSK BV, Art. 74 No. 16-20). Cultural or social environmental aspects are not covered, although the distinction can be difficult in individual cases (Rausch/Marti/Griffel, Umweltrecht, p. 12).
No. 9 «Harmful or nuisance effects» are all physical, chemical or biological changes to the environment that can impair people, animals, plants or their communities. The terms correspond to those in Art. 1 para. 1 EPA. Harmful are effects that significantly endanger health or well-being; nuisance are those that disturb well-being without being harmful to health (BGE 126 II 522 consid. 39).
No. 10 The precautionary principle (para. 2 sentence 1) requires preventive measures already in the case of potential dangers. The possibility of harmful effects according to the state of science and experience is sufficient (Marti, Vorsorgeprinzip, p. 156; Jungo, Le principe de précaution, p. 89). The Federal Supreme Court clarified this in BGE 132 II 305 for the BSE crisis: the state must take all protective measures indicated according to current knowledge.
No. 11 The polluter pays principle (para. 2 sentence 2) is the economic fundamental principle of environmental law. Whoever causes environmental pollution bears the costs of its prevention and elimination (Adler, Verursacherprinzip und Haftpflicht, p. 34). This encompasses both preventive measures and subsequent remediation (Griffel, BSK BV, Art. 74 No. 34-36).
#4. Legal Consequences
No. 12 Art. 74 para. 1 Constitution contains a mandatory legislative mandate to the Confederation. It is obliged to enact provisions and cannot limit itself to framework legislation (Griffel, BSK BV, Art. 74 No. 21-30). Federal competence is comprehensive and concurrent — cantonal law remains permissible insofar as it provides for stricter protective provisions.
No. 13 From the precautionary principle follows a duty to limit emissions at source, regardless of the existing environmental pollution. Emissions must be limited as part of precaution as far as this is technically and operationally possible as well as economically viable (BGE 126 II 522 consid. 40).
No. 14 The polluter pays principle establishes a duty to bear costs for environmental impairments. This manifests itself in various instruments: steering levies (LSVA, CO₂ levy), polluter-appropriate fees (waste fees), liability rules. The application must be differentiated — blanket cost transfer is inadmissible, as BGE 138 II 111 on the littering problem shows.
No. 15 Implementation federalism (para. 3) means that the cantons are responsible for enforcing federal environmental provisions. They have considerable discretion in organization, but not in the material level of protection (Griffel, BSK BV, Art. 74 No. 37-38).
#5. Controversial Issues
No. 16 Anthropocentric vs. ecocentric environmental understanding: While Griffel (Grundprinzipien, p. 45) and Wagner Pfeifer (Umweltrecht I, p. 28) advocate independent protection of nature, a minority opinion emphasizes the purely instrumental character of environmental protection for human needs. Practice follows a mediating approach.
No. 17 Scope of the precautionary principle: It is disputed from what degree of uncertainty precautionary measures are required. Marti (Vorsorgeprinzip, p. 189) demands intervention even in the case of remote risks, while Rausch/Marti/Griffel (Umweltrecht, p. 67) focus on sufficient probability. The Federal Supreme Court requires scientifically founded evidence (BGE 132 II 305).
No. 18 Cost allocation under the polluter pays principle: The attribution in cases of multiple polluters or diffuse sources is controversial. Adler (Verursacherprinzip und Haftpflicht, p. 78) argues for joint and several liability with internal recourse, practice differentiates according to causation contributions (BGE 129 I 290, BGE 138 II 111).
#6. Practical Guidance
No. 19 In licensing practice, the precautionary principle must be observed even when limit values are complied with. Emissions must be minimized regardless of pre-existing pollution (Art. 11 para. 2 EPA). This applies particularly to new technologies with unclear potential for harm.
No. 20 Cost calculation according to the polluter pays principle requires careful examination of causality. Blanket fee systems are only permissible if they reflect actual use. Linking waste fees to water consumption is contrary to federal law (BGE 129 I 290).
No. 21 In cantonal implementation there is a need for coordination between various specialized agencies (environment, construction, health). Cantons may enact stricter provisions, but must comply with federal minimum standards and may not create contradictory regulations.
No. 22 Legal protection issues: The right of appeal of environmental organizations (Art. 55 EPA) enables objective legal review. Private parties have standing to appeal when immission limit values are exceeded, even without proof of special concern.
#Case Law
#Precautionary Principle and State Liability
BGE 132 II 305 of 11 April 2006
The precautionary principle in the BSE crisis: The Confederation is liable for inadequate protective measures.
Fundamental judgment on the precautionary principle as a concretization of Art. 74 para. 2 BV.
«Art. 9 TSG implicitly concretizes the precautionary principle (prevention principle), which entails the responsibility of the Confederation if it does not take all measures that appear appropriate according to the state of science and experience to prevent the occurrence and spread of the animal disease in question.»
BGE 129 I 290 of 7 July 2003
Polluter-pays principle in waste disposal: Federal law violation through coupling to water consumption.
Confirmation of the constitutional anchoring of the polluter-pays principle in Art. 74 para. 2 BV.
«A municipal regulation whereby a variable fee dependent on fresh water consumption is levied for the disposal of municipal waste (in addition to a basic fee) violates federal law due to breach of the polluter-pays principle (Art. 32a EPA).»
BGE 138 II 111 of 21 February 2012
Financing of anti-littering measures: Polluter-pays principle prevents flat-rate fee distribution.
Clarification of the application of the polluter-pays principle for diffusely caused environmental damage.
«It violates federal law to generally consider building owners as the cause of this waste and to finance its disposal through the basic waste fee owed by all building owners. However, the mentioned costs can be imposed proportionally on businesses according to factually tenable criteria by means of causal levies if it can be plausibly shown that these businesses contribute in a particular way to the generation of waste disposed of in public spaces.»
#Pollution Control and Noise Abatement
BGE 126 II 522 of 26 September 2000
Zurich Airport: Comprehensive judgment on air quality and noise protection for major projects.
Leading judgment on the application of Art. 74 BV to complex infrastructure projects.
«Independent of existing environmental pollution, emissions must be limited as part of prevention measures as far as this is technically and operationally possible and economically acceptable. Emission limitations must be tightened if it is established or expected that the impacts will become harmful or bothersome.»
BGE 146 II 17 of 4 September 2019
Fireworks regulation City of Wil: Balancing tradition and pollution control.
Modern application of interest balancing for noise and air pollution.
«The ignition of fireworks and firecrackers causes considerable noise and air pollution with great potential for disturbance to humans and animals. The contested regulation therefore provides for a permit requirement for fireworks and a basic prohibition for firecrackers, albeit with exceptions for the federal holiday, New Year's Eve and (only for firecrackers) carnival week.»
BGE 141 II 483 of 14 October 2015
National highway renovation: Definition of "substantial modification" in noise protection.
Important distinction between new, existing and modified installations under the EPA.
«The EPA distinguishes between new installations (Art. 25 EPA), existing installations requiring renovation (Art. 16 f. and 20 EPA) and modified installations (Art. 18 EPA), with different legal consequences for passive sound protection.»
BGE 136 II 263 of 29 March 2010
Aircraft noise compensation: Requirements for excessive noise pollution.
Clarification of compensation claims for environmental law impairments.
«Excessive noise pollution from air traffic gives rise to compensation claims if it was unforeseeable and the requirements for noise protection are not met.»
#Energy Law and Climate Protection
BGE 149 I 49 of 23 March 2023
Ban on electric heating: Property guarantee and environmental protection.
Latest case law on the tension between climate protection and property rights.
«The obligation to remove such installations associated with the ban on electric heating and the criminal penalty attached thereto in the Canton of Zurich restrict the property of owners of corresponding heating systems. The statutory regulation forms a sufficient basis for the interference with the property guarantee, is based on a sufficient public interest and is proportionate.»
BGE 149 I 291 of 3 May 2023
Municipal energy initiative Hochdorf: Renewable energies and protection of existing rights.
Latest case law on municipal climate protection measures.
«The initiative "Hochdorf heats renewably - from 2030 onwards even more so" contains a binding target and aims at a fundamental decision. Compatibility with cantonal energy laws and building law protection of existing rights must be examined on a case-by-case basis.»
BGE 143 II 87 of 17 October 2016
CO₂ emissions trading: Free allocation of emission rights.
Important decision on the practical implementation of the CO₂ Act.
«The CO₂ emissions trading system concretizes the polluter-pays principle through market-based instruments. The free allocation of emission rights must be based on the greenhouse gas efficiency of production.»
#Water Protection and Hydropower
BGE 145 II 140 of 29 March 2019
Hydropower plant with vested rights: Residual water renovation for old concessions.
Tension between acquired rights and modern water protection.
«When renewing and renovating an existing hydropower plant, it must be examined whether vested water rights preclude integral residual water renovation. Special use concessions without time limitation are not protected with unlimited duration.»
#Animal Protection and Animal Testing
BGE 135 II 384 of 7 October 2009
Animal experiments with primates: Balancing research and animal protection.
Application of Art. 74 BV in the field of animal protection and research freedom.
«When assessing an application for animal experiments with non-human primates, a comprehensive balancing of interests between research interest and animal protection must be undertaken. The cantonal animal experimentation committee has technical discretion.»
#Traffic Levies and Environmental Steering
BGE 136 II 337 of 19 April 2010
Performance-related heavy vehicle fee: Internalization of external costs.
Exemplary application of environmental steering levies.
«The levy of the performance-related heavy vehicle fee (LSVA) based on the increased levy rate concretizes the polluter-pays principle in the transport sector and internalizes the external environmental costs of heavy traffic.»
#Environmental Impact Assessment
BGE 134 II 97 of 11 March 2008
Ski slope in game reserve: Interest balancing in nature conservation areas.
Application of EIA for projects in sensitive areas.
«For projects outside the building zone in a game reserve, a comprehensive balancing of interests between the various protection objectives and economic interests must be undertaken. The protection objectives of the game reserve must be appropriately considered.»