Council of the European Union adopts rules accelerating the permitting procedure of renewables

• Germany

• Other

10-01-2023

On 22 December 2022, the Council of the European Union adopted the emergency Regulation (EU) 2022/2577 laying down a framework to accelerate the deployment of renewable energies as part of the REPowerEU plan.

Since this Regulation is applicable in all Member States since 1 January 2023 without the need for transposition, it will directly affect all permit-granting procedures to be initiated before 30 June 2024. Member States may also apply the Regulation to ongoing permitting procedures. Within its scope of application, the Regulation overrides existing renewable energies legislation. Reason enough to take a closer look at the key changes and which of them will actually impact the current German regulatory framework.

Shorter deadlines for renewables projects

In the new Regulation, the Council establishes deadlines for certain types of renewable energy projects by simplifying the permitting procedures provided that the national law does not already stipulate shorter deadlines:

1. Repowering projects

The permit-granting process for the repowering of renewables projects shall not exceed six months including the Environmental Impact Assessment (EIA) where it is required. This shall be reduced to three months if the repowering does not result in a capacity increase of the plant beyond 15%, unless there are justified safety concerns.

Where the repowering of solar installations does not entail the use of additional space, it shall be exempted from the requirement of an EIA screening (Vorprüfung). In other cases, the screening or EIA shall be limited to potential significant impacts stemming from the change or extension compared to the original project.

Impact for Germany: We consider the impact to be rather remote as national law (Federal Immisions Act (BImSchG)) already provides that the repowering of onshore wind energy turbines can be permitted in a simplified permitting procedure which should not exceed three months. The repowering of solar parks does usually not require a permit.

The Regulation, however, apparently deviates from national law with regard to the repowering of offshore wind turbines as the Regulation provides for a 6-month procedure (whereas the revised Wind at Sea Act (WindSeeG 2023) provides for a period of 12 months).

2. Solar energy equipment

For the installation of solar energy equipment, the Regulation provides for even shorter deadlines.

The permit-grating process for solar energy equipment in or on buildings shall not exceed three months. For such installations, neither a screening nor an EIA must be carried out. For solar energy equipment with a capacity of 50 kW or less, the permit will be considered as granted if the relevant authorities or entities fail to respond to the application within one month.

Those provisions do not apply to solar parks that have solar energy production as their primary aim.

Impact for Germany: German building law does not provide for a fiction effect (Fiktionswirkung) for solar installations (a permit is deemed to have been granted if not granted within one month); in this context, therefore, the Regulation can theoretically have an impact.

Under German building law, however, usually only solar energy equipment on or at skyscrapers requires a building permit. These permitting procedures, depending on the capacity of the facility, must now comply with the deadlines of the Regulation.

3. Dedicated renewables areas

With the Regulation, the Council makes reference to dedicated renewables areas which are or will be designated in plans by the EU Member States within their territory. If these plans, as a whole, were subject to a strategic environmental assessment, the obligation to carry out an EIA and a species protection assessment for each renewable energy project within a dedicated renewables area is waived. The priority areas for wind energy identified in the German spatial development plans are recognised as dedicated renewables areas.

Although the Regulation does not provide for a deadline, this will shorten the individual permit-granting process considerably.

Impact for Germany: There is currently no such waiver of the obligation to carry out an individual EIA or a species protection assessment if a strategic environmental assessment has been carried out for the adoption of a plan on priority areas for wind energy. Therefore, the Regulation, depending on the individual case, can have an impact on relevant permitting procedures, for example with regard to species protection law.

4. Heat pumps

With regard to heat pump technology, permitting procedures shall not exceed one month for the installation of heat pumps below 50 MW electrical capacity and three months for the installation of ground source heat pumps.

Impact for Germany: The impact is limited to certain ground source heat pumps.

Air source and ground source heat pumps generally do not require a permit unless they are located in a water protection area or come in contact with groundwater. If this is the case, a permit under water law may be required. Permit procedures under German water law did not have to comply with any deadlines prior to the Regulation, therefore the deadlines may now apply.

Renewables are in the overriding public interest

In order to make those shorter deadlines of the permit-granting process achievable for public authorities, the Regulation prioritises the deployment of renewables in the weighing of conflicting interests. It shall be presumed as being in the overriding public interest and serving public health and safety. As a result, the interest to build a renewable energy plant may prevail over the interest in maintaining a clear view of the landscape or in keeping water protection areas free of development.

Impact for Germany: The revised German Renewable Energies Act applying to all onshore renewables projects and the revised Wind at Sea Act provide for similar provisions (see our Client Briefing on the EEG 2023).

Outlook

The Regulation is part of the larger REPowerEU plan which shall be put into law over the upcoming year. At the heart of this plan is the re-draft of the Renewable Energies Directive (RED III) which is set to be adopted in Q1 2023. The provisions of the Regulation provide solid evidence of the ambitious goals for the development of renewables which will be set by the RED III, in particular by focussing on dedicated (“go-to-“) renewables areas and binding deadlines for permit-granting procedures for all types of renewables projects, on- and offshore.