Länder Opening Clause to Stipulate Minimum Wind Power Distances Passes Bundestag’s Environment Committee

With the votes of the ruling grand coalition of Conservatives and Social Democrats a bill giving the federal states (Länder) the right to determine minimum distances for wind power plants was adopted by the Environment Committee of Parliament. The bill is part of the wider EEG 2.0 reform package amending the Renewable Energy Sources Act (EEG), which will be voted on in Parliament this Friday.

Enactment of an “opening clause” for the Länder formed part of the coalition agreement (cf. page 39) between the conservative CDU/CSU parties and the Social Democrats (SPD) and was particularly wanted by the State of Bavaria that already presented a draft bill regulating minimum distances of wind power plants to residential housing in April.

Pursuant to the Federal Building Code, in principle building is not allowed in outskirt areas not regulated by a zoning plan (Außenbereich). Certain projects are, however, exempted by Section 35 para. 1 no. 5 BauGB under certain conditions. One group of projects are those that serve research, development or use of wind or hydro power. This privilege will be restricted by the proposed new Section 249 para. 3 BauGB and future state law based on it, as minimum distances can be laid down in state laws to be promulgated by 31 December 2015.

The bill has been criticised by the Federal Association of the Energy and Water Industry (BDEW), the German Wind Energy Association (BWE) and the German Engineering Federation (VDMA) and the Federal Council, which called the bill counterproductive in view of the German energy policy shift towards a renewable energy supply and warned of lawsuits.

After the decision by the Environment Committee, however, it looks as if the bill will win approval in Parliament on Friday. The Federal Council’s consent is not necessary, but it can only object to the bill, and could thereby only delay the passing of the law. Parliament can override a negative decision by the Federal Council.

Source: Bundestag; Recommendation and Report Committee Environment, Nature Protection, Construction and Nuclear Safety

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