Increased pressure on states to designate areas for wind energy use

While some federal states have already taken a pioneering role in the expansion of wind energy in the past, other federal states have created certain obstacles for the construction of wind turbines, be it by stipulating distances to residential areas or by designating fewer but exclusive areas designated for wind energy. Today, only 0.8% of Germany's surface has been designated for wind energy use, and – according the Federal Government – only 0.5% of Germany's area are currently available for wind energy.

The federal legislator leaves the planning competence of the federal states untouched – but only if they significantly increase the designated areas for wind energy projects. By 31 December 2032, 2% of the states' surface shall be designated for onshore wind energy. Under the new framework, for each federal state a so-called area contribution value (Flächenbeitragswert) sets binding targets for 2027 or 2032. In a first step, the federal states shall ensure that the respective regional plans or state laws defining the wind energy areas are updated accordingly by 31 May 2024. This value takes into account the already existing areas for wind turbines in the individual federal states. The scale ranges from 0.5 percent for smaller, densely populated states (like Hamburg) to 2.2 percent for larger states (like Lower Saxony). Achieving these targets is important as failing to meet this goals will have an impact on minimum distance requirements as well as the enforcement of planning rules in regard to exclusive zones for onshore wind projects.

The federal states remain able to set minimum distances for wind turbines of up to one kilometre from residential areas. Under the revised regulatory regime, these rules are only applicable if the targets set by the Wind Energy Area Act have been achieved in the respective states.

Fostering onshore wind by amending the planning rules

In future, the designation of wind energy areas shall be simplified by (partly) giving up the previously applicable planning principles. If a regional development plan, under the current regulatory framework, provides for wind priority areas (Vorranggebiete), wind projects can be exclusively built within these priority areas. 
So far, counties and states uses this mechanism to concentrate wind energy projects in certain areas. In future, the planning control through the designation of wind energy areas should only have an exclusion effect if the target area contribution values are achieved. Otherwise, wind projects will be permitted in the entire outskirt areas (Außenbereich) covered by such plan. 

The revised EEG and the BNatSchG now expressly stipulate that all renewable energies are in the overriding public interest and serve public safety. Thus, in future, landscape conservation areas may also be included when searching for onshore wind energy development site.

Simplifying planning and accelerating implementation

In order to simplify and accelerate approval procedures for onshore wind turbines, federal standards for the species protection assessment shall replace the existing deviating standards in the federal states. The provisions on the approval procedure itself and the legal rights of third parties (including nature conservation associations) remain unchanged. In practice, this was the main reason for delays in the expansion of wind energy in the past.

Repowering

Additional species protection-related simplifications will apply for repowering projects. In particular, the species protection assessment shall in future take into account that the old WTG represents a prior impact. The new WTG shall only be considered to be significant in terms of nature conservation if it triggers additional impacts.

Way ahead and next steps

The new legal provisions reflect the strong political will to expand onshore wind energy and achieve climate neutrality. Despite the new rules, there remain challenges for project developers in particular in connection with the legal challenges of third parties. Most changes will enter into force on 1 January 2023. A number of changes in the EEG (applicable to solar projects) entered into force in August 2022.

Authored by Alexander Koch und Malte Neumann.