Luther expert takes position on the German Bundestag's Committee for Climate and Energy

Berlin, 16 October 2024 – The Bundestag is currently debating a bill to accelerate the expansion of wind and solar energy (Bill to Implement Directive (EU) 2023/2413 in the Areas of Onshore Wind Energy and Solar Energy and for Energy Storage Facilities at the Same Location - BT-Drs. 20/12785, 20/13253).

Prof. Dr. Tobias Leidinger, a lawyer and specialist in administrative law, partner at Luther Rechtsanwaltsgesellschaft mbH and specialising in environmental and planning law, participated as an expert in the deliberations of the German Bundestag's Committee on Climate and Energy on the draft law on 16 October 2024.

The law aims to create a new planning and approval regime for the accelerated expansion of onshore wind and solar energy. The acceleration is to be achieved by establishing a special law for certain projects – at both the planning and approval levels. At the planning level (spatial planning/urban land-use planning), the designation of so-called acceleration areas for wind and solar projects is planned. In such areas, substantive and procedural simplifications apply to the subsequent approval. Among other things, general exceptions are standardised for the environmental impact assessment (EIA), FFH impact assessment, species protection assessment and water law assessment of management objectives.

Leidinger views the aim of the draft law to accelerate approval procedures for wind and solar energy projects as fundamentally positive. However, he criticises ‘the fact that the law does not clarify whether the previous high environmental standards of EU law are to continue to be complied with or not. This is not clearly defined at the level of the directive.Clarification of the legal issues arising from this is thus shifted to the enforcement level and the courts. Furthermore, a number of provisions need to be adapted in the interest of legal certainty and genuine acceleration: various legal concepts, transitional and procedural provisions need to be defined more precisely. The conditions for uniform enforcement throughout the country also still need to be established.

Finally, the draft law raises fundamental questions that go beyond its scope: the question arises as to whether Germany wants to afford two parallel legal regimes for planning and approval procedures in the long term. In the interest of climate protection and Germany as a business location, the acceleration of planning and approval decisions must not remain an issue limited to certain sectors – wind and solar.In short, there is still a fundamental need for action in the area of German planning and approval law."

Prof. Dr. Leidinger has summarised his criticisms in a statement and, on this basis, has presented his views to the Climate and Energy Committee of the German Bundestag (committee document 20(25)698).

Download link:

https://www.bundestag.de/resource/blob/1024484/7a667f0818eec2f36789f34b06b3af78/Stellungnahme_Prof_Dr_Tobias_Leidinger_Luther_RA-Gesellschaft.pdf

The Bundestag intends to pass the law in the near future, after the conclusion of the deliberations in the Committee for Climate and Energy.