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 complaints against the Climate Protection Act of 24 March 2021. This ambitious goal can only be achieved with an extensive expansion of renewable energy production, especially through the construction of wind turbines. Nevertheless, the expansion of wind energy is faltering enormously. In addition to long distances to urban areas, the main hindrance is conflicts with the regulations of species protection law, especially with regard to so-called European bird species such as the red kite. According to statements by the Federal Ministry of Economics, up to 70% of approval procedures fail due to species protection regulations, primarily because of violations of the prohibition on killing species under species protection law.

Question: When is there a violation of the prohibition of killing species under species protection law?

Answer: According to the case law of the Federal Administrative Court, a violation of the prohibition on killing under species protection law 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 (killing of birds) is significantly increased by the project, as compared with the general life risk. The authority has the prerogative to assess whether a species protection prohibitive act according to Section 44 of the Federal Nature Conservation Act has occurred. If, after assessment, there is a significantly increased risk of killing, the project cannot be implemented. In legal terms, the focus therefore repeatedly shifts to the possibility of granting an exemption from the prohibitions under species protection law pursuant to Section 45 (7) of the Federal Nature Conservation Act. In a declaration of 13 May 2020, the environmental ministers of the German Federal States expressly emphasised that the species protection exemption within the meaning of Section 45 (7) of the Federal Nature Conservation Act is the legal means of balancing the interests of species protection with the rapid creation and safeguarding of a climate-neutral energy supply.

Question: Why is the question of exceptions to species protection prohibitions so topical right now?

Answer: A decision by the Giessen Administrative Court dated 22 January 2020 (Ref: 1 K 6019/18.GI, juris) caused quite a stir. The court had ruled that an exemption granted for the construction of wind turbines was unlawful and nullified the permit granted under the Federal Emission Protection Act. The court justified its opinion by stating that the exception in Section 45 (7) sentence 1 no. 5 Federal Nature Conservation Act (“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 grounds for exceptions in Article 9 (1) Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds. The Higher Administrative Court of Münster has now contradicted this view in a decision dated 12 March 2021, ref.: 7 B 8/21, juris). According to the higher court, wind energy plants can be exempted “in the interest of public safety”. Furthermore, in the event of a violation of species protection prohibitions, the nature conservation authorities are obliged to examine in their official capacity whether an exception can be granted.

Question: What is the legal dispute?

Answer: The dispute that has been heard before the courts has existed for some time. Literature takes the view that wind energy plants are generally not eligible for exemption. On the one hand, it is disputed on which grounds within the meaning of Section 45 (7) of the Federal Nature Conservation Act exceptions to species protection prohibitions with regard to European bird species for the realisation of wind energy can be based. The grounds for exemption “in the interest of public safety” (No. 4) and “other compelling reasons of overriding public interest, including those of a social or economic nature” (No. 5) come into 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 in Article 9 of the Directive are conclusive or can be interpreted analogously and extensively by national law.

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

Answer: The case law decided by the Higher Administrative Court of Münster and the statement of the environment ministers from the Federal States have raised great hopes in the industry that a more generous handling of the exception in the sense of Section 45 (7) Federal Nature Conservation Act can facilitate expansion of wind energy in Germany. It can already be observed that the granting of exceptions within the meaning of Section 45 (7) of the Federal Nature Conservation Act is increasingly being applied. However, there are concerns that the granting of exceptions will lead to fierce resistance on the part of environmental associations and citizens and that the number of legal disputes surrounding approval procedures for wind turbines will not be reduced. In the long term, only a ruling by the European Court of Justice will be able to provide legal certainty regarding the approval of wind turbines by way of exception within the meaning of Section 45 (7) of the Federal Nature Conservation Act with regard to European bird species. Until then, careful steps should be taken to ensure that when issuing approvals using the exception in the sense of Section 45 (7) Federal Nature Conservation Act, the approval becomes valid as quickly as possible via the possibility of public announcement.

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