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16 August 2023
Publication series – 64 of 86 Insights
Does monument protection hinder the expansion of renewable energies?
- Briefing
In addition to nature and species protection regulations and forest law, monument protection should not be forgotten.
In some cases, monument protection legislation can hinder or even prevent the expansion of renewable energies. As the aim of monument protection is to preserve cultural heritage and buildings worthy of protection, concerns may arise regarding the impact on the appearance and historical integrity of monuments. In particular, wind turbines are often criticised for disturbing the appearance of the landscape and thus impairing the historical aesthetics of monuments. This often leads to discussions and conflicts between those in favour of monument protection and those who want to promote the expansion of renewable energies.
With this conflict in mind, the federal legislator introduced Sec. 2 of the Renewable Energy Sources Act (“EEG”) with the Act on Immediate Measures for the Accelerated Expansion of Renewable Energies and Further Measures in the Electricity Sector. The following applies: If the goal of greenhouse gas-neutral electricity generation in Germany has not yet been achieved, the construction and operation of renewable energy plants is in the overriding public interest – also with regard to public safety.
What impact does Sec. 2 EEG currently have on monument protection with regard to the authorisation practices of the authorities?
Many state constitutions give monument protection constitutional status – e.g. Art. 16 para. 1 sentence 1 of the constitution of the state of Mecklenburg-Western Pomerania establishes a duty to protect and promote the culture (including monuments) of the state; comparable provisions include Art. 11 para. 1 sentence 1 of the constitution of the Free State of Saxony, Art. 36 para. 4 of the constitution of the state of Saxony-Anhalt and Art. 141 para. 2 of the constitution of the Free State of Bavaria. Despite the provisions of Sec. 2 EEG, a conflict situation nevertheless remains when weighing up the protected monument and the renewable energy installation in question. In practice, the competent authorities have continued to argue (also in view of the overriding public interest in the expansion of renewable energies) that
- monument protection in itself constitutes a public interest and can therefore – as a rule, not only in exceptional cases – prevent the authorisation of renewable energy installations. This applies in particular even though the wording of Sec. 2 EEG expressly states that renewable energies should be a primary concern when weighing up the protected interests.
- in individual cases, the authorisation must always be measured against whether legitimate interests such as the preservation of the substance and the preservation of the appearance of the immediate surroundings of the monument in question are impaired by the expansion of renewable energies.
- the monument is bound to a specific location from the outset and the renewable energy plant is not; an alternative location for the renewable energy plant must therefore always be examined in each individual case.
As a result, projects – despite the overriding interest in the construction and operation of renewable energy installations – have sometimes not been authorised and subsequently not implemented.
What is the case law on conflicts between monument protection and renewable energies?
The Greifswald Higher Administrative Court recently clearly rejected the above argument in its ruling of 7 February 2023:
- According to the court, Section 2 of the Renewable Energy Sources Act (EEG) outweighs the protection of renewable energies, meaning that the public interest in the construction of renewable energy plants can only be overcome in exceptional cases, which must be technically justified based on the specific circumstances of the situation in question. The legislator has "pre-set" the balance between the protection of historical monuments and the expansion of renewable energies in favour of the expansion of renewable energies with Section 2 EEG.
- It should also be emphasised that Section 2 EEG can also be applied to individual projects for the expansion of renewable energies.
- In the opinion of the court, it was also not necessary to examine an alternative location. This is because the question of an alternative location does not constitute an atypical situation. Therefore, if the argument that the monument is tied to a specific location and the plant is not sufficient for renewable energies were to be accepted, the priority for renewable energies - intended by the legislator with Section 2 EEG - would be cancelled (see OVG Greifswald, Urt. v. 7 February 2023 - 5 K 171.22, BeckRS 2023, 2396).
Could Section 2 EEG help to significantly increase the speed of planning and approval procedures?
It is clear that the handling of the priority for renewable energies, as provided for in Sec. 2 EEG, is still being debated in the approval process. The decision of the Higher Administrative Court of Greifswald on 7 February 2023 clarified the outstanding importance of renewable energy installations with regard to monument protection. The OVG Greifswald's statement is particularly clear for the practical application of Sec. 2 EEG: as a rule, priority is given to renewable energies - also with regard to monument protection. The OVG Greifswald thus joins a series of courts that have only recently recognised the outstanding importance of renewable energies under Sec. 2 EEG.
The decision only relates to a single (wind energy) project and is not legally binding for the building authorities or other courts. Nevertheless, the decision can be an important cornerstone for speeding up planning and authorisation procedures in the future. Especially for project development - in all federal states - the decision offers good arguments with regard to the authorisation of construction facilities for renewable energies.
Do you have any questions about speeding up your authorisation procedures and/or about construction or environmental law, etc.? We look forward to hearing from you.
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