Overview
The German Federal Parliament (Bundestag) adopted the reform of the Federal Emission Control Act (Bundes-Immissionsschutzgesetz – “BImSchG“) with the Acceleration Pact for Renewable Energies and Electrolyzers on June 6, 2024, thus implementing a major amendment to emission control law.
Industry associations consider the Act to Improve Climate Protection in Emission Control, to Accelerate Emission Control Approval Procedures and to Implement EU Law (“BImSchG Amendment“) as a key lever for accelerating approval procedures, particularly for onshore wind farms.
In the following we provide an overview of the key legislative changes for onshore wind farms.
1. General Procedural Simplifications
Overall, the BImSchG Amendment brings various procedural simplifications for all types of installations covered by the BImSchG (in addition to wind farms, e.g. also certain transformer stations and electrolyzers):
- In the area of digitalization, this concerns not only the strengthening of electronic permit applications (section 10 (1) BImSchG-New), but also the possibility of holding online consultations (section 10 (6) BImSchG-New). In addition, the public announcement of the permit application and the display of the relevant documentation shall largely take place online (section 10 (3) BImSchG-New). The further digitalization of the permitting procedure is primarily intended to make better use of the resources of authorities and applicants and to prevent associated delays.
- The start and duration of the permitting procedure will also be regulated more clearly. In future, the period of three months (in the simplified procedure) or seven months (in the regular procedure) can only be extended once by three months (see section 10 (6a) BImSchG-New). Previously, an extension was possible several times, which in practice led to considerable delays.
- The start of the approval period is also determined by law for the first time: According to the new legal requirements, the deadline for approval procedures now begins when the competent authority has not responded within one month of the application being submitted (this deadline can extended once by 2 weeks) or the documents requested for the first time within that deadline have subsequently been submitted by the applicant (see section 7 (1) sentence 4 of the 9th BImSchV-New). This is intended to prevent the start of the deadline being delayed by repeated requests for further documents by the competent authority (as is unfortunately often the case).
- The BImSchG Amendment stipulates for the first time when permit application documents are complete. According to section 7 (2) of the amended 9th Federal Emission Control Regulation (Neunte Verordnung zur Durchführung des Bundes-Immissionsschutzgesetzes – “9th BImSchV”), documents are now considered complete if they contain information in relation to all legally relevant aspects of the project and enable the authority to examine the application in more detail. From a practical perspective, however, it remains to be seen whether the introduction of this definition will actually lead to a reduction of uncertainties, as the requirements for the documents remain vague. The wording was criticized by industry associations during the consultation phase, but suggestions for improvement were not implemented by the legislator.
- A public hearing (Erörterungstermin) for objections against onshore wind farms and electrolyzer projects for the production of green hydrogen, shall not take place unless it is explicitly requested by the project developer.
- For permits granted in the simplified procedure in accordance with section 19 BImSchG (e.g. for wind farms with fewer than 20 wind turbines), it is clarified that the permit must be published at the request of the project developer. Even though this has already been confirmed by the courts, the clarification serves at providing legal certainty. With the public announcement the approval is deemed to have been delivered to concerned third parties as well, therefore, the one-month appeal periods will be set in motion (see section 10 (8) BImSchG).
2. Project Managers
The role of project managers will also be strengthened. To this end, a separate provision is being created in the law (section 2b of the 9th BImSchV-New), which defines the assignment and possible list of tasks for project managers.
In practice, it is often the (insufficient) staffing of the permitting authorities that prolongs the approval process. The increased use of external administrative assistants, who can be deployed unbureaucratically at the project developer’s expense and are authorized to carry out official duties, can effectively counteract such bottlenecks. At the same time, coordination between the parties involved is simplified, as the project manager can take over communication if needed.
Section 2b of the new 9th BImSchV also stipulates that the assignment and invoicing is generally carried out between the project developer and the project manager. From the authority’s point of view, this reduces the risk of having to bear the costs, which makes the use of a project manager even more attractive for the competent authority.
3. Repowering
The BImSchG Amendment also significantly expands the scope of application for repowering regulations in the event of a complete replacement of wind turbines (see section 16b (2) BImSchG-New):
- Project developers now have twice as long to build the new turbines. Previously, the new turbines had to be constructed within 24 months of the existing plant being dismantled. This period has now been extended to a total of 48 months.
- The exact choice of location for the new wind turbine is also eased by the BImSchG Amendment. In the future, the distance between the existing turbine and the new turbine may be up to five times the total height of the new turbine; previously, the maximum distance was twice the total height.
- Furthermore, the so-called delta review will become the standard procedure for repowering projects. This means that generally there will no longer be a comprehensive examination of permissibility; instead, the procedure will be limited to the possible negative deviations between the (already approved) existing turbine and the planned new turbine. Previously, the delta review was only carried out at the request and risk of the project developer and was also content wise limited to certain issues.
4. Strengthening Preliminary Approvals
The importance of the preliminary approvals is strengthened. According to the new provisions of section 9 (1a) BImSchG-New, it will no longer be required to assess the impact of the planned overall installation. A preliminary environmental impact assessment (EIA) is therefore no longer required. In practice, the requirement for a preliminary EIA often led to delays in the entire approval process, as the significance of a preliminary positive overall evaluation was regularly assessed differently by project developers and authorities. The resulting uncertainties also had an impact on potential investments in the project at this stage.
5. Easier Exchange of Turbine Types
Furthermore, it will also be easier to exchange the type of the wind turbine during the ongoing approval process. Due to the rather long permitting procedure for wind turbines, it often happens that a turbine type is applied for and approved for a project that is already technically outdated when the turbine is built. In the future, according to the new regulation in section 16b (7) BImSchG-New, only the stability and harmful environmental impacts due to noise and adverse effects due to turbulence will be examined if the turbine is only modified slightly. This applies to projects for which the location of the turbine does not change by more than 8 m, the total height does not increase by more than 20 m and the rotor passage is not reduced by more than 8 m (cf. section 16b (7) sentence 3 and (8) BImSchG). In addition, a presumption of approval is introduced for certain type changes: As long as the deviations that are applied for are within the limits set out in section 16b (7) sentence 3 BImSchG, the exchange of the wind turbine is deemed to have been approved after six weeks.
6. Stricter Requirements for Third-Party Objections
Finally, permitting procedures will also be streamlined at the level of legal remedies. In principle, legal actions taken by third parties against the approval of a wind turbine already before the current reform had no suspensive effect (see section 63 BImSchG). This means that the developer may continue with the approved project until the approval is either revoked by a court or the suspensive effect is ordered by a court. The BImSchG-Amendment now tightens the requirements for legal actions taken by third parties against the approval in two respects:
- A one-month period has been introduced for submitting the reasoning for the third-party objection, i.e. if the objection has not been substantiated one month after it has been submitted, the authority shall generally reject it as unfounded (see section 63 (1) sentence 2 BImSchG-New).
- Secondly, the possibility of preventing the start of construction in a preliminary injunction order has been restricted. In the future, the application to put a suspensive effect on the legal action must be submitted within one month of being notified of the approval.
In practice, lengthy (legal) procedures often mean that projects are no longer realized, mainly for practical or financial reasons. In the future, the deadline for submitting the reasoning will enable project developers to quickly and reliably assess the risk associated with any objections raised. At the same time, the new regulation on expedited measures means that construction can generally still begin in a timely manner after receiving the approval.
We will be happy to advise you on all aspects of the energy transition in Germany and on the practical implementation of the BImSchG Amendment.
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