The Federal Emissions Control Act (Bundes-Immissionsschutzgesetzes, “BImSchG”) has finally been amended with the adoption of the Act on Improving Emissions-Control Climate Protection (Gesetz zur Verbesserung des Klimaschutzes beim Immissionsschutz). The new Act entered into force on 9 July 2024, following Federal Council approval on 14 June 2024 and publication in the Federal Law Gazette on 8 July 2024 (Federal Law Gazette 2024 I, no. 225). It aims to significantly speed up and simplify approval procedures for onshore wind turbines, electrolysers and industrial plants and marks the most extensive reform of the BImSchG in 30 years.
Despite its somewhat misleading name, the new Act primarily works to accelerate procedures, benefitting not only onshore wind turbines and electrolysers but all other industrial installations too. Expediting approvals and reducing bureaucracy via a mixture of digitalisation and shorter deadlines for action is a recurring motif in the coalition’s climate and environmental protection policy. The Act, which to a certain extent owes its name to the inclusion of “climate” as a protected good under the BImSchG, implements key points of the Pact for Accelerating Planning agreed by the federal and federal state governments in November 2023 (article of 20 December 2023 – German only ).
Accelerated repowering
The new Act significantly expands the scope of section 16b BImSchG, which governs approvals for the modernisation of installations generating electricity from renewable energies (“repowering”).
When full replacement of an installation will constitute repowering has been brought into line with section 45c Federal Nature Conservation Act (Bundesnaturschutzgesetz), with the time limit for erecting the new installation after dismantling the old one having been doubled to 48 months. The permissible distance between the old and new installations has also been increased to up to five (instead of two) times the total height of the new installation, providing greater flexibility in where new installations can be located. The Building Code (Baugesetzbuch, “BauGB”) has not (yet) been adapted to this broader definition of repowering, however, and more restrictive repowering requirements therefore continue to apply to the planning reliefs under sections 245e(3) and 249(3) BauGB.
The operator of the new installation also need no longer be the same as the operator of the old installation. If the operator is not the same, it is now sufficient for the former operator to send a declaration to the approval authority indicating its agreement to the project. This new arrangement will make it much easier for new operators to implement repowering projects as they will no longer be forced to buy old installations.
Further simplifications for onshore wind turbines
The Act makes it easier to change the turbine type once a turbine has already been approved. Provided that, when changing the turbine type, the turbine’s location changes by no more than eight metres, its total height increases by no more than 20 metres and its rotor sweep reduces by no more than eight metres, only the turbine’s stability, the noise and the effects of turbulence must be re-examined. According to the newly added section 16b(9) BImSchG, the approval authority has a mere six weeks to decide whether to approve the change. If no decision is taken, approval will be assumed, provided that the applicant has not requested a consultation meeting.
Enhancements to the preliminary approval procedure also give project developers more planning security. Preliminary decisions on wind turbines will no longer require a determination that the overall project will more likely than not be permitted, nor is an environmental impact assessment necessary. These simplifying measures should make preliminary procedures much more attractive for project developers.
Digitalisation of approval procedure
In several places, the new Act provides for the digitalisation of the approval procedure laid down in section 10 BImSchG with the aim of accelerating the procedure and reducing bureaucracy. Many of these measures were originally temporarily introduced during the COVID-19 pandemic by the Planning Assurance Act (Planungssicherstellungsgesetz) and have proven their effectiveness in practice:
- In future, it will be standard practice to submit approval applications electronically. If the authority has made it possible to submit an application electronically, applicants will be obliged to use this channel.
- Displaying the documents on the premises of the approval authority will no longer be sufficient to satisfy the public participation requirement; the documents must instead be published on the authority’s website.
- The approval will generally also be publicly announced on the website in future.
- It will also be possible to hold the consultation meeting as an online discussion or video conference/conference call. According to the explanatory memorandum to the new Act, the online consultation format will not only help speed up the procedure, it will make it more objective too.
The extent to which these steps towards digitalisation will actually have an accelerating effect will also largely depend on the extent to which the authorities can put the technical requirements in place.
Procedural deadlines for authorities
The existing deadlines for checking the completeness of application documents, involving specialist authorities and reaching a decision on the application have been shortened.
Amendments to the Ordinance on the Approval Procedure (Verordnung über das Genehmigungsverfahren, “9th BImSchV”) will speed up the completeness check for the application documents. This check must now be carried out within one month, with the option of a single two-week extension in justified exceptional cases. It will no longer be possible for the authorities to extend deadlines for granting approval by making multiple requests for further documents: In such cases, the applicable period will commence as soon as the authority has received the first set of further documents requested.
Changes have also been made to how authorities are involved pursuant to section 10(5) BImSchG. Opinions received will be forwarded directly to the project developer so that it can respond to any concerns raised by the specialist authorities as soon as possible. New rules on deadlines for the involvement of authorities have also been introduced, with the relevant authorities having one month within which to issue their opinion in all BImSchG approval procedures. This can be extended once by one month only in the case of projects that do not concern the approval of a renewable energy plant or a renewable hydrogen production plant. If the specialist authority does not issue an opinion, the approval authority can either issue an opinion itself or obtain an expert opinion in order to establish the technical basis for a decision.
Finally, the approval authority will only be able to extend the seven-month decision period (three months in the simplified procedure) by another three months. Further extensions will only be possible at the request of the applicant or if the applicant agrees to the extension.
Stronger role for project manager
However, the burden on the authorities has also been eased, as the project manager has been given a stronger role pursuant to section 2b 9th BImSchV. Such project managers “shall” be used for projects in future if the project developer requests this – previously, the legal text merely stipulated that they “could” be used. And project managers now have broader responsibilities: Not only can they help project developers with individual planning, they can also assist the authorities by providing targeted reporting and handling supervisory tasks. The task of checking the completeness of the application documents can also be assigned to the project manager.
Start of construction even without a “predictive decision”
There are now several scenarios in which construction can be started before the approval decision is received. Previously, this was only possible if the approval authority issued a provisional “predictive decision”. The new Act now allows companies to start construction early without a predictive decision by the authority when applying for approval for alterations or building on already existing sites. For the time being, this provision does not apply to new plants on so-called “greenfield land”. If the applicant starts construction early, it will be responsible for ensuring compliance with the law, including dismantling the installation if it cannot be approved.
Outlook
The acceleration and red tape reduction measures laid down in the new Act amending the BImSchG will benefit not only renewable energy installations but also, at least in part, all other industrial plants that are approved in accordance with the BImSchG. Nevertheless, the primary focus is to accelerate the expansion of renewable energy plants (especially wind turbines). In contrast to many other acceleration measures, the effect is to be achieved without cutting corners where environmental assessments or legal protection are concerned. The extent to which the acceleration required to protect the climate and strengthen the economy actually materialises at the end of the day depends, as always, on the staffing and technical resources of the authorities involved.
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