The Bavarian Constitutional Court dismissed actions against the Bavarian wind power distance law. The controversial 10H-rule has been declared constitutional.
Under Bavaria's Parliament Act of 2014, planned wind turbines cannot be sited closer than ten times a turbine's total height to the nearest houses in Bavaria. The wind industry and its advocates opposed the rule and complained before the Bavarian Constitutional Court, but to no avail.
In an order issued by the Court, control of turbine siting belongs to local planning authorities and not the legislature. While the country's legislature might not adopt such a large minimum setback distance given the privileges enjoyed by wind energy, the limit does not exceed what could be permitted according to the Constitutional Court. The Court found that it was constitutionally irrelevant that fewer wind turbines might be constructed with potentially lower profits under the setback rule.
Reactions to the ruling
The speaker on energy policy for the State Parliament Greens, Martin Stümpfig from Feuchtwangen, expressed disappointment at the verdict by the Bavarian Constitutional Court. "The hopes of many wind power proponents were dashed today," according to Stümpfig. The energy transition in Germany will be far more difficult without Bavaria said the Greens member of parliament. "We will now seek a dialogue with the local authority and work with them in reaching a consensus on locations for where projects can be sited."
Eike Hallitzky, the state chairman of the Bavarian countryside, was defiant despite the defeat in court. In the short message sent through Twitter he wrote: "10H remains destructive to our energy policy. We Greens are politically committed to continue fighting for climate protection with all your might..!" SPD General Secretary Natascha Kohnen was also "very, very disappointed." Hans-Josef Fell, who wanted to bring the Bavarian distance law to court described the decision as "a black day for climate protection".
Bavaria Energy Minister, Ilse Aigner, is pleased with the verdict. It meant "legal certainty" and a "common good, sound balance between our energy policy goals and local interests." If there is consensus on siting, wind turbines could still be built closer to residential buildings.
Green: Parliament has overstretched its legislative discretion
The Greens argued that the rule had no factual basis. Previously administrative courts have held that a 3x factor was sufficient for protecting nearby properties. They also accused the parliament of having overstretched its legislative discretion because federal law provides a de facto priviledge for wind turbines under the Construction Law.
The core question: Does the law make construction of wind power virtually impossible?
The energy-policy spokesman of the parliament-Green, Martin Stümpfig, believes that the rule of the state government is completely arbitrary and poisons the climate for wind power. Prime Minister Seehofer is waging a "campaign against wind turbines" and has incited the people to that end.
"Today there is massive resistance to locating wind turbine projects due to the old conflict between supporters and opponents of the energy transition. According to Seehofer, polls are clear..: a clear majority of the population favors expansion of renewable energies."
State Government: space for 200 wind turbines
The lawyer for the government argued before the Court that even after applying the distance control there would be enough space in Bavaria for more than 200 wind turbines. But it is unlikely that all would be built after considering other practical factors such as the wind speed at the sites, or whether there is protected conservation land in the area,
In order to achieve the energy transition, Bavaria would also need to build significantly more than the 200 turbines which would not be possible under the 10H rule. But, as the lawyers for the state government stated, this cannot be determined in this case, nor is it relevant to the constitutionality of the law. The government also pointed out that the law allows exceptions to the distance rule where there is consensus within the affected municipalities that will allow construction closer than 10H. But for critics, this offers little comfort.
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