"At some point, even in politics, the moment comes when you have to say that the original plan was good, but it won't work today if it is not implemented. [...] That's why I made the decision to do it differently, to change the plan", said the Federal Minister for Climate Action, Environment, Energy, Mobility, Innovation and Technology (Bundesminister für Klimaschutz, Umwelt, Energie, Mobilität, Innovation und Technologie) at a recent press conference.

With these words, the austrian government buried after almost one year the original plan, to replace existing heating systems that run on fossil fuels by 2035 (all coal and oil heating systems) or 2040 (all gas heating systems), set out in the draft of the Renewable Heat Act ("RHA"). Ultimately, the federal government wants to merely maintain the ban on the installation of gas heating systems in new buildings with the RHA. The ban originally planned for existing old systems will be replaced by an "even better" funding or cost-sharing model for the voluntary replacement of old systems. The federal government plans to finance up to 75% or even 100% (for "low-income households") of the conversion costs for the replacement of old heating systems.

The problem are not new buildings, but rather existing buildings!

In Austria, 900,000 gas heating systems and 500,000 oil heating systems are currently in use. Due to the widespread distribution and use of these climate-harmful heating systems, the mere granting of "higher" subsidies as an incentive to voluntarily switch to modern and renewable heating systems, instead of the originally planned mandatory ban on existing systems, is strongly criticized.

Against this background, there is an opportunity to take a more effective action at a federal state level:

Ban on oil and gas heating systems at a federal state level?

The federal states could control the mandatory ban on oil and gas heating systems in different ways within their competencies. For example, the provinces can also take climate protection and energy efficiency considerations into account as part of their spatial planning competence and incorporate programmatic provisions to this effect in energy development plans (e.g., Section 2b of the Vienna Construction Code (“Bauordnung für Wien”). Energy development plans can also stipulate restrictions on permissible greenhouse gas emissions from heating and hot water systems.

Above all, however, the installation of cables and devices, especially in residential buildings, is subject to construction law and therefore lies within the responsibility of the federal states. The scope of the federal state legislators in the respective state construction regulations is very broad. It would be conceivable, for example, to prohibit the usage of heating systems powered by solid or liquid energy sources under construction law. Compliance with such an usage ban could be ensured primarily through penalties (in the form of fines).

Prohibitions are not unfamiliar to the construction regulations of the federal states. For example, various construction bans can be regulated in development plans or construction bans can be imposed if the building site is not adjacent to traffic areas that meet traffic requirements. 

As such a ban on the operation of existing oil and gas heating systems would interfere with existing permits and thus with the human rights of the owners of those systems and residential buildings, it is essential to consider the framework of the constitutional law.

Validity of a ban within the framework of the constitutional law?

The admissibility of a ban on the usage of existing heating systems would first have to be justified on the basis of objective criteria. The main argument for justifying the interference with the constitutionally guaranteed property rights of those affected is the public interest in climate-neutral measures or the reduction of greenhouse gas emissions and energy consumption as well as the change to highly efficient renewable heating systems.

The appropriateness of the intervention would have to be ensured further by supporting measures. This could be achieved, for example, through a pre-defined transition period (e.g., 10 to 15 years) until the usage ban becomes mandatory and/or by providing funding for the conversion costs, which has already been envisaged by the federal government.

Conclusion

Since the federal government is reluctant to implement a ban on existing gas and oil heating systems, the time may have now come for federalism to take the initiative on climate policy and reaffirm the justification for the existence of federalism by banning existing oil and gas heating systems at a federal state level. Every contribution to abolishing the existing 1.4 million climate-harmful old systems and switching to modern and renewable heating systems counts. With the federal government financing the conversion measures with a contribution of 75% to even 100% in some cases, a uniquely favorable opportunity is being provided.