The following speech was part of a workshop, organized by the MENA Projektpartner e.V., AHK Arbeitsgemeinschaft Middle East and North Africa and the German Federal Ministry of Economics and Technology (BMWi). Only the spoken word is valid.
My name is Alexander Mahlke. I am Attorney at the law firm Andresen Rechtsanwälte – a Rostock based law firm with 7 attorneys. Our main focus is on administrative law, environmental law and renewable energies. We accompany our clients in administrative procedures, most of them for wind turbines or wind farms. Our service includes the whole picture: land lease contracts, grid access, purchase and sale of partly finished or finished projects and wind turbines. Financing and contract management are also our business.
We give advice in the event of crashes or almost crashes, and how to avoid that. Or at least we do our best to make sure that our clients will have the better legal position. If another wind turbine will be erected nearby and may cause turbulences we represent the interests of our clients in administrative procedures or lawsuits. The so called “Repowering” is also part of our consultancy. “Repowering” means: The law gives special conditions in the event of replacing older wind turbines by new ones. The concept of the “Repowering” is to dismantle many small turbines in order to erect bigger ones with more power and better characteristics.
We have more than 10 years experiences in this field and accompanied 250 MW installed power. This is as much as the capacity of a small nuclear power plant.
As you know Germany met the decision to phase out nuclear power by 2022 and to increase the production of renewable energies. The legal framework for the renewable energies – in the meaning of the breakthrough – exists since 2000. Namely the Renewable Energies Act (EEG) gave the vital push to accelerate the process. The targets regarding renewable energies are ambitious. 2050 – 80%.
Let us take a look at the possibilities to reach the targets. The German law allows to make a difference between the so called “state controlled system” and the “demanders system”. In the state controlled system the state will do everything in order to reach the target. That includes the control of the land that could be acquired or even expropriated by the state. In this system the state also will be the owner of the turbines. Disadvantages: no real competition, “the state is not the better businessman”, lots of bureaucracy. In the so called “demanders system“ the state gives a legal frame only and determines incentives. Such incentive may work or not. The land will stay in the hands of the landowners and the investors are also private persons or companies.
Germany decided for the demanders system. The disadvantage of this system is that the state has no direct influence on the process. So it may happen that an area for wind farms will be determined but no wind turbine will be erected because the landowner prefers nuclear power instead of wind energy. Big advantage is: competition. Legal mechanisms used under the demanders system are e. g. the feed in tariff, a guaranteed grid access and priority to conventional sources.
I would like to tell you about legal challenges and boilerplates in this field, especially Standards for prioritiy areas / noise / environmental issues (birds & bats), participation of citizens and municipalities and blackout fear: grid extension and grid integration.
Firstly: Standards for Priority areas:
The building of wind farms and wind turbines is a guided process. Especially the areas where wind turbines may be erected are restricted by law. Sec. 35 Federal Building Act (BauGB) in connection with the regional planning act (ROG Raumordnungsgesetz) determines the so called excluding effect.
How to create such priority areas:
– Detect no go areas = natural habitats of protected species, residential areas, strictly protected areas (e. g. cultural heritage)
– potential areas = collecting of interests and conditions – wind, noise emissions, distance to sensitive areas, protected landscape elements
– final assessment = specific view of interests, matters, needs and balance them
Legal issues often arise when land owners try to get their estate into priority areas or when municipalities try to avoid wind farms and therefore try to minimize the size of the priority areas. Currently the trend is totally different: municipalities recognize that they can have a big benefit from wind farms in their territory because of the tax they can obtain. For some municipalities these benefits are enormous, compared with their former financial situation. And so a wind park can allow to build kindergartens and improve the local infrastructure, sport sites etc. Another Legal Approach is to define repowering zones (instead on many small turbines less but big turbines), ruled by section 249 par. 2 Federal Building Act. You remember the picture of the two wind turbines standing very near to each other.
Secondly: Noise and animals: Rotmilan, Bat, Schreiadler (Eagle)). The problem is: animals become victims of wind turbines. The reason for the death of the animals can be the beat of a turbine wing. Bats often are killed by the underpressure near the wing, that causes a burst of the lungs. Therefore the wing not even need to touch the animal.
Sec. 44 federal environmental protection act (BNatSchG) constitutes a ban: It is not allowed to kill protected animals or to affect their living space. According to the federal administrative court (BVerwG) the interpretation of the ban has to be restrictive as follows: the ban does not mean the single animal, the ban does not mean the species, the ban does not mean the local population. The ban is relevant when the killing risk will raise significantly. The general life risk must be taken into account. That means the even the death of an eagle is not illegal if the killing risk does not raise significantly. Part of the general killing risk are risks caused by other animals or even car or train traffic.
In order to avoid an increase of the general killing risk the authorities determine minimum distances or turn off periods. The activity of bats is very high during warm summer nights. So the turn off of a wind turbine within that time may avoid a raise of the general killing risk. Furthermore migration birds may be protected by a turn off during the migration time. This aspects will be part of the preparatory land use plan, the administrative procedure and of the permission. The permission may contain a colletaral clause or such clause will be added subsequently.
Noise is also an aspect that will be considered in the preparatory land use plan and the permission. The applicable law – BImSchG in connection with the BauGB, BauNVO and the TA Noise (TA Lärm) – determines noise limits that are different according to the specific area.
Residential area: only living of people
General residential area: living of people and not disturbing other uses (such as shopping store for local supply)
Mixed area: living of people, business buildings, companies
Industrial area: only companies
In order to comply with the determinations the power of the wind turbine can be reduced. That causes a reduction of the noise. Quite often reductions during the night and during high wind periods are sufficient to comply with the limits. In addition: you may ask me what a TA is? It is a technical advice that substantiates the law. In general a court will use the determinations of a TA as a binding provision. Only in the event that the TA is not the scientific standard anymore the court is entitled not to use the TA. So a TA is a quasi law.
The main focus of the politics currently is on how to improve the possibilities of citizens and municipalities to participate. The thinking behind this is that the people who have the turbines nearby should have the opportunity to take part in the advantages. And this is the best way to improve the acceptance of the citizens. But you have to consider: such projects are costly. Even when financing by banks the part of own capital is very high, often too high for regions where the unemployment rate is high and the people haven’t got much to spend. As a shareholder you don’t only have benefits but also risks.
Another issue is the Blackout fear. Electricity is not storable in big amounts, at least at the moment. In most locations wind is not available permanently. In order to balance out the electricity production gap during low wind periods the need for electricity plants that are able to close the gap increases. So the increase of renewable energies leads to the need of more capacity of flexible conventional electricity production facilities – for example based on gas. One main approach against the blackout fear is to improve the integration of renewable energies in the existing grid and to extend the grid itself.
First to the net integration: the law provides a mechanism that first gave an incentive to the owner of a wind turbine if the turbine complies to specific requirements (SDLWindV). That allows the grid operator to turn off the turbine in the event that the grid has not enough capacity. Furthermore the law (SDLWindV) determines that even wind turbines shall provide reactive power (Blindleistung).
Secondly: There is a big need to get more capacity in order to transport the electricity from the region where it is produced to the region where it is needed – usually from the windy north to the industrial south of Germany. Therefore the so called “grid extension acceleration act” was launched.
In parallel methods that allows us to store electricity should be developed. A promising approach is a pilot project in Altentreptow (Mecklenburg-Vorpommern). The plant there is able to generate hydrogen out of wind power with an electrolyser. In low wind periods the plant can regenerate the hydrogen into electricity again. The question again is how to store the hydrogen gas. Technicians have a convincing proposal: the gas could be fed in the national gas grid. Up to a certain percentage this is no problem for the characteristics of the gas and a little increase of pressure in the grid gives us an enormous capacity for storage. Another approach is to pump the hydrogen into natural underground casks.
At the end of my little report a nice outlook. This is the view from the nacelle of a big turbine in 140 metres height. This wind turbine is part of the project RH2-WKA (that stands for R = “renewable“, H2 = “Hydrogen”, WKA = Werder, Kessin, Altentreptow). The wind park has a capacity of 140 Megawatt.
One last legal remark – and outlook – on the future of the German Renewable Energies Act (EEG) with regard to European law:
EU Commissioner for Energy Oettinger and Commissioner for competition Almunia raised the question whether the EEG is in line with the regulations of the EU. The EEG applies only for producers in Germany but not for a Danish company who delivers renewable electricity to Germany. That may be in conflict with EU laws. Furthermore the EEG contains rebates for the benefit of companies that have a big need of electricity. Such rebates may be seen as forbidden subsidies for the privileged companies.
Next step would be to start a formal procedure against Germany by the EU commission. According to the commission that decision will be met in autumn this year. Such a formal procedure would cause the next EEG amendment much more complicated – but may lead to an EU wide solution.