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Energy and infrastructure questions and answers: # 5 Species protection exemption

By on May 26, 2021 0

# 5 Species protection exemption – importance for wind energy

Germany wants to become climate neutral by 2045. This was announced by the federal government in response to the decision of the Federal Constitutional Court on constitutional appeals against the climate protection law of March 24, 2021. This ambitious objective can only be achieved with a strong expansion of the production of renewable energy, in particular by the construction of wind turbines. However, the expansion of wind power is weakening dramatically. Besides the long distances to urban areas, the main obstacle is the conflict with the regulations of the law on the protection of species, especially with regard to so-called European bird species such as the red kite. According to statements by the Federal Ministry of Economy, up to 70% of approval procedures fail due to species protection regulations, mainly due to violations of the ban on killing species under the Law on protection of species.

Question: When is the ban on killing species under the Species Protection Act violated?

Reply: According to case law of the Federal Administrative Court, a violation of the killing ban under the Species Protection Act does not exist if animals of the protected species have simply been encountered in the area of ​​influence of the wind turbines. Instead, there must be an indication that the risk of a so-called bird strike (bird killing) is significantly increased by the project, compared to the general risk to life. The authority has the prerogative to assess whether a law prohibiting the protection of species in accordance with Article 44 of the Federal Law on Nature Conservation has taken place. If, after assessment, there is a significantly increased risk of killing, the project cannot be implemented. From a legal standpoint, therefore, the focus has shifted several times to the possibility of granting an exemption from the prohibitions under the Species Protection Act in accordance with Section 45 (7) of the Federal Conservation Act. of nature. In one declaration of May 13, 2020, the environment ministers of the German federal states have expressly pointed out that the exemption from species protection within the meaning of Article 45 (7) of the Federal Law on the Protection of Nature is the legal means of reconciling the interests protection of species with the rapid creation and safeguarding of a climate-neutral energy supply.

Question: Why is the issue of exceptions to the prohibitions on the protection of species so topical at the moment?

Reply: A decision of the administrative court of Giessen dated January 22, 2020 (Ref: 1 K 6019 / 18.GI, juris) caused a lot of noise. The court ruled that an exemption granted for the construction of wind turbines was illegal and canceled the permit granted under the Federal Emissions Protection Act. The court justified its opinion by declaring that the exception provided for in article 45 (7) sentence 1 no. 5 The federal law on the protection of nature (“for other imperative reasons of overriding public interest, including those of a social or economic nature”), was not applicable to European bird species due to the exhaustive list of the grounds for exceptions set out in Article 9 (1) of Directive 2009/147 / EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds. The Münster Higher Administrative Court has now contradicted this opinion in a decision of 12 March 2021, ref .: 7 B 8/21, juris). According to the higher court, wind power installations can be exempted “in the interest of public safety”. In addition, in the event of a violation of the prohibitions on the protection of species, the nature conservation authorities are obliged to examine in their official capacity whether a derogation can be granted.

Question: What is the legal dispute?

Reply: The dispute that has been heard in the courts has been around for some time. The literature considers that wind power plants are generally not eligible for the exemption. On the one hand, it is disputed on what grounds within the meaning of Article 45 (7) of the Federal Law on the Protection of Nature can be based exceptions to the prohibitions on the protection of species with regard to species of European birds for the realization of wind power. The grounds for exemption “in the interest of public security” (n ° 4) and “other overriding reasons of overriding public interest, including those of a social or economic nature” (n ° 5) are put back in place. question. This is based on the problem that Article 9 of the European Directive on the conservation of wild birds only provides for exceptions for reasons of public safety. It is also disputed whether the provisions of Article 9 of the Directive are conclusive or can be interpreted in a similar and extensive manner by national law.

Question: What are the implications of the decision of the Münster Higher Administrative Court for wind turbine developments in Germany?

Reply: The case law of the Higher Administrative Court in Münster and the declaration of the environment ministers of the federal states have raised high hopes in the industry that a more generous management of the exception within the meaning of Article 45 (7) of the federal law on nature conservation can facilitate the expansion of wind power in Germany. We can already see that the granting of exceptions within the meaning of Article 45 (7) of the Federal Law on Nature Protection is increasingly applied. However, there are fears that granting exceptions will lead to fierce resistance from environmental associations and citizens and that the number of legal disputes surrounding wind turbine approval procedures will not be reduced. In the long term, only a judgment of the European Court of Justice will be able to provide legal certainty with regard to the approval of wind turbines on an exceptional basis within the meaning of Article 45, paragraph 7, of the Federal Law on the protection of the wind. nature with regard to bird species. Until then, careful measures should be taken to ensure that when issuing approvals using the exception within the meaning of section 45 (7) of the Federal Law on Nature Conservation, the approval becomes valid as quickly as possible thanks to the possibility of a public announcement.

Do you have any questions or would you like to discuss the regulatory aspects of wind turbines? The lawyers in our Environment, Planning and Regulatory practice group not only have a comprehensive overview of the market and the latest developments, but can also provide assistance on all regulatory matters, especially on environmental law, construction, planning and products. Our team also advises on administrative law matters, planning and approval procedures and the development of public law projects.

In this series

by several authors

Hydrogen power

Importance for wind power

through Lars Borchardt, Dieter Lang, LL.M. Eur.

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