Auteur

Kris Breudel, LL.M. (Aberdeen)

Collaborateur senior

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Auteur

Kris Breudel, LL.M. (Aberdeen)

Collaborateur senior

Read More

16 août 2023

Publication series – 3 de 21 Publications

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.

Dans cette série

Projets Internationaux, Énergie & Infrastructure

Power Play: Renewable Energy Update

par plusieurs auteurs

Énergie et infrastructure

A new era for wind energy investments in Hungary

Power Play: Renewable Energy Update

26 January 2024

par Torsten Braner, LL.M.

Énergie et infrastructure

Does monument protection hinder the expansion of renewable energies?

Power Play: Renewable Energy Update

16 August 2023

par Kris Breudel, LL.M. (Aberdeen)

Projets Internationaux, Énergie & Infrastructure

Renewable Energy Wrap-Up - Germany

Power Play: Renewable Energy Update

12 July 2021

par Carsten Bartholl

Énergie et infrastructure

Focus PV – Floating Solar and Agrivoltaics

Power Play: Renewable Energy Update

23 March 2021

par Dr. Angela Menges

Projets Internationaux, Énergie & Infrastructure

Power-to-Hydrogen

Power Play: Renewable Energy Update

6 April 2021

par Dr. Janina Pochhammer

Projets Internationaux, Énergie & Infrastructure

Species protection exemption: Significance for wind energy

Power Play: Renewable Energy Update

25 May 2021

par Dieter Lang, LL.M.Eur.

Projets Internationaux, Énergie & Infrastructure

Floating Foundations for Offshore Wind Farms

Power Play: Renewable Energy Update

8 June 2021

par Dr. Janina Pochhammer

Projets Internationaux, Énergie & Infrastructure

Renewable Energy Wrap-Up – Austria

Power Play: Renewable Energy Update

18 August 2021

par Peter Solt, LL.M.

Projets Internationaux, Énergie & Infrastructure

Renewable Energy Wrap-Up – Poland

Power Play: Renewable Energy Update

21 September 2021

par Olav Nemling

Énergie et infrastructure

Renewable Energy Wrap-Up – Netherlands

Power Play: Renewable Energy Update

2 December 2021

Environnement, Urbanisme et Réglementation

Fit for 55 – Hydrogen and the Reform of the European Gas Market

Power Play: Renewable Energy Update

11 January 2022

Énergie et infrastructure

Building energy performance: the revised Energy Performance of Buildings Directive

Power Play: Renewable Energy Update

14 February 2022

Énergie et infrastructure

Renewable Energy Wrap-Up - United Kingdom

Power Play: Renewable Energy Update

15 March 2022

Énergie et infrastructure

Renewable Energy Wrap-Up – France

Power Play: Renewable Energy Update

27 April 2022

par Nicolas De Witt, Sophie Pignon

Énergie et infrastructure

Participation of local municipalities in the context of wind and photovoltaic projects

Power Play: Renewable Energy Update

5 May 2022

par Dieter Lang, LL.M.Eur.

Énergie et infrastructure

Challenges for data center operators - The federal government’s draft bill for an energy efficiency act

Power Play: Renewable Energy Update

12 April 2023

par plusieurs auteurs

Technologies de l'information

New IT security requirements for the energy sector

Power Play: Renewable Energy Update

1 September 2023

par Dr. Paul Voigt, Lic. en Derecho, CIPP/E, Alexander Schmalenberger, LL.B.

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