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30 January 2023

Time is running out

The EU is shortening the approval procedures for solar and wind projects. Will the energy transition finally gain momentum?

Counting birds, avoiding monuments, watering toads, writing reports, planting trees, dodging associations, appeasing neighbours, nudging officials, eventually submitting endless applications – and then waiting, waiting, waiting. For a very long time. This is the reality if you want to build a wind turbine.

The EU wants to put an end to this. Since the beginning of 2023, an emergency regulation has been directly applicable in all member states. This means:

– Authorities have six months to decide whether to approve repowered wind farms. Environmental impact assessments may not start from scratch, but are limited to changes to the existing wind farm. In general, the grid connection for the repowered turbines must be confirmed within three months.

– The approval period for solar and storage installations on the same site shall not exceed three months; the same period applies to rooftop solar installations. In addition, no environmental impact assessment is necessary for such installations.

– Heat pumps with up to 50 MW must be approved within one month and geothermal heat pumps within three months.

– Renewable energy, storage facilities and grids are of overriding public interest and take precedence over other concerns such as nature conservation and landscape protection.

The sovereign decides on the state of exception

This is the first time that the EU has directly regulated authorisation procedures in the member states. Brussels justifies this radical intervention with an emergency competence in the European treaties: Against the backdrop of climate change and Russia’s war of aggression in Ukraine, the expansion of renewable energy can no longer be delayed.

The EU is counting on projects that can be implemented quickly to meet the emergency; that is why there are still no strict time limits for new wind parks at new locations.

The regulation will apply for an initial period of 18 months and to all authorisation procedures starting from 1 January 2023. It is up to member states to decide whether they want to apply the regulation to procedures already underway.

Few new sanctions

Apart from solar installations of up to 50 kW, for which approval is deemed granted after one month, the regulation is silent on the consequences of exceeding the deadlines. According to national law, authorities can be challenged in court if they ignore the deadlines. A complaint to the European Commission is also possible. In the long term, such a complaint could lead to infringement proceedings against the member state – after all, the regulation is directly applicable law – and, in the short term, at least exert political pressure.

In extreme cases, liability claims against the authorities may be an option, although the hurdles are high, especially if civil servants have to balance conflicting interests. Damage claims are also possible if the grid connection is delayed.

European priority

Nevertheless, the priority now being given to renewable energy across Europe is remarkable. Although the priority rule already exists in the German Renewable Energy Sources Act (EEG), courts have expressed doubts as to whether the priority at federal level also applies to regional law (see the decision of the Lüneburg Higher Administrative Court of 21 April 2022 (12 MS 188/21 para. 71)). These doubts should now be dispelled, at least as far as EU rules are concerned, for example on species protection.

Projects can now benefit from a simplified assessment of EU environmental requirements. For species protection, this requires that appropriate protection measures have been undertaken and that sufficient financial resources and land have been made available. However, member states can decide for so-called wind priority areas that a specific assessment is not required for all species if a general strategic environmental assessment has been carried out. This alone can speed up the process.

Strengthening decentralisation

At least the procedures for small installations will be less bureaucratic. Small installations stabilise energy prices without significantly affecting grid stability. Grid operators must therefore grant permission to connect to the grid.

It remains to be seen whether the regulation will change reality. It partly reflects acceleration measures already introduced by the German legislator, but also brings innovations to Germany, such as the newly adopted deadlines. Typical of European compromises, there are vague wordings, restrictive conditions and various exemptions.

Even so, the “emergency regulation” signals to all stakeholders that something has to change urgently. Every kilowatt-hour counts to fight climate change and achieve energy independence.

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