Possible effects of amendments to the Air Traffic Act on the approval of onshore wind turbines

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With the draft bill for a new Federal Armed Forces Planning and Procurement Acceleration Act (BwPBBG; BR-Drs 377/25), the Federal Government is planning far-reaching changes to the Air Traffic Act (LuftVG). The aim is to remove procedural hurdles to the construction and security of defence-related infrastructure and to accelerate military capabilities, particularly in air defence. The current draft aims to rapidly strengthen Germany’s defence capabilities within the NATO alliance.

Regarding the expansion of onshore wind energy in Germany, some aspects of the planned changes appear critical. For example, the amendment to Section 18a of the LuftVG means that Bundeswehr agencies may prohibit wind projects that could interfere with air defence radar systems.

We will not present the aspects of the LuftVG that are relevant to the expansion of onshore wind energy.

Section 18a LuftVG: Construction bans also apply in the event of interference with military air defence systems

In addition to air traffic control facilities, the draft law also aims to include stationary military air defence radar systems within the scope of protection of Section 18a (1) sentence 1 LuftVG. As a result, wind turbines may not be erected in the vicinity of these military radar stations if this could interfere with the functioning of the installations. In future, the decision as to when such interference exists will no longer be made by the civil air traffic control authority, but by the competent authority of the German Armed Forces.

The draft bill has been supplemented compared to the first ministry bill and the new Section 73(5) LuftVG has been included, according to which the amendment to Section 18a(1) sentence 1 shall only apply if the following conditions are met:

An independent scientific study on the potential interference of wind turbines with military air defence radars has been completed. Such a study is currently available in draft form.
The results of the study and the new assessment and verification procedure have been presented to the Federal Ministry for Economic Affairs and Energy (BMWE), the federal states, local authorities and professional and industry associations. There should be an opportunity to comment on this.
An impact assessment shows that the new procedure does not unreasonably impair the expansion of wind energy. The BMWE and the Federal Ministry for the Environment, Climate Protection, Nature Conservation and Nuclear Safety (BMUKN) must confirm the assessment.
A notice shall be published in the Federal Law Gazette stating that the above conditions have been met. This shall be done by the Ministry of Defence in agreement with the BMWE and the BMUKN.

Section 30 LuftVG: Airfield planning by the German Armed Forces without authorisation

A planned new Section 30 (1c) LuftVG would allow the Bundeswehr to establish or modify military airfields in individual cases without a regular approval procedure if the implementation of an approval procedure would have a negative impact on national defence. This would apply for reasons of secrecy or urgency of the project. Responsibility lies solely with the Federal Ministry of Defence or the offices of the German Armed Forces.

Section 14 LuftVG: Involvement of the German Armed Forces in the approval process

An amendment to Section 30(2) sentence 5 LuftVG means that, in future, Bundeswehr agencies will be directly involved in the approval process for structures under Section 14 LuftVG, alongside air traffic control organisations and state authorities. This will simplify the procedure, as the involvement of Bundeswehr agencies has previously been indirect via the civil aviation authorities of the federal states, which has often led to considerable delays.

Assessment of the impact on the expansion of onshore wind energy

Against the backdrop of Russia’s war of aggression against Ukraine, hybrid warfare and the current drone attacks against NATO territory, the planned amendments to the Air Traffic Act place a clear emphasis on security policy. At the same time, the application of the new regulations may lead to restrictions on the expansion of wind energy, which could complicate the already complicated and lengthy process of finding suitable sites for the construction of new wind turbines. On the other hand, the standardised assessment and verification procedure for interference to be developed prior to the application of the amendment to Section 18a could ease the burden on the approval process, make it more predictable and faster, and reduce the number of administrative disputes.

At present, there are no reliable findings available that would allow a final assessment of the effects of the new regulation. The study on the effects was originally scheduled for publication in November 2024 but has not yet been published. However, Section 73(4)(2) of the Air Traffic Act (LuftVG) also provides for the participation of experts and the associations concerned, which, according to the explanatory memorandum to the draft bill, also includes the industry associations relevant to wind energy. The aim will be to help shape the impact assessment of new verification and evaluation procedures and to highlight the effects on the expansion of wind energy and the realisation of the RED III targets.

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