First BVerwG Ruling Regarding EnLAG Electricity Grid Modernization

The Federal Administrative Court (Bundesverwaltungsgericht – BVerwG) on 22 July 2010 handed down its first substantial ruling regarding grid modernization pursant to the Energy Line Extension Act (Gesetz zum Ausbau von Energieleitungen – Energieleitungsausbaugesetz – EnLAG). The court dismissed a petition seeking injunctive relief against a plan determination procedure (Planfeststellungsverfahren) regarding a new 110-/380 kV extra high voltage line.

The new line was intended to basically replace an older 220 kV line. As with some other high priority infrastructure projects, the Federal Administrative Court is the first and (excpet for exceptionala constitutional complaints) only court instance with jurisdiction for law suits against projects covered by the EnLAG.

In its summary review in the preliminary injunction proceedings, the court held that even though a legal action brought against plan determination procedures regarding high voltage lines does not have the normal automative suspensive effect under the German Energy Act  (Gesetz über die Elektrizitäts- und Gasversorgung – Energiewirtschaftsgesetz – EnWG), this did not mean that the interest to carry on with the project necessarily takes priority. Besides, BVerwG ruled that affected land owners are entitled to have the plan determination procedure fully reviewed by the competent court, as they can be expropriated if necessary for projects for which the plan determination procedure has been carried out.

The fact that a 380 kV (or higher) power line expansion project has been included in the list of EnLAG projects sufficiently justifies commencing a plan determination procedure, the court held.

Often the limits for electromagnetic fields pursuant to the 26th Ordinance supplementing the Federal Immission Control Act (26. BImSchV) are challenged in legal proceedings concerning power lines. BVerwG clearly stated that there is no legal basis to question those limits. As long as the limits are not exceeded, power line projects, respectively the necessary plan determination procedures, are not in danger of being reversed.

With certain limited exceptions, BVerwG declared individual plan determination procedures for individual segments of longer power lines to be admissable.

The court also stated that previous impacts (Vorbelastungen) of property in an area required for the construction of power lines limited the necessary degree of protection under the law. In the case at hand, a 220-kV power line was already located on the property of the petitioners. Besides, two of the three petitioners had built their home right under the then existing power line.

The underlying main case remains to be decided by the court.

Source: Press Release BVerwG (ref. no. 7 VR 4.10)

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