- The Supreme Bavarian Court has rejected complaints filed by the opposition parties in Parliament.
- Court rules that Bavaria's controversial 10H law does not violate the the Bavarian constitution.
- There is great satisfaction within the Bavarian government. The opposition parties, environmentalists, and the wind power industry are furious.
On Monday, the Bavarian Constitutional Court, its President Peter Küspert, announced that Bavaria's controversial law of distance between wind turbines and residential areas is not contrary to the state's constitution. Thus the supreme Bavarian Court has rejected the complaints of the opposition parties in parliament and the former Green Party MPs Hans-Josef Fell.
Green, SPD and CDU, and also the wind power industry described the decision as a "black day not only for wind power, but for the transformation of energy in total." Meanwhile, the Bavarian government feels strengthened in its position. "The decision provides legal certainty," said Minister Ilse Aigner. The law "makes a public welfare an acceptable balance between our energy policy goals and local interests".
Following the decision by the Constitutional Court, the so-called 10-H-law remains legal. 10 H is the formula that was adopted under Prime Minister Horst Seehofer and the CSU on 20 November 2014 following a public dispute over the expansion of wind power in the state. Under the law, wind turbines may be built in Bavaria when the setback distance to the nearest residential area is ten times a turbine's total height.
Many environmentalists also criticize the rapid expansion of wind power. For wind advocates development could not go fast enough.
At 200 meters in height, which is the current state of wind turbine technology, setbacks will have to be at least 2 kilometers in length. Prior to the law being adopted, the minimum distance was 600 meters, but in practice was usually between 800 and 1000 meters.Under there law there are exceptions for shorter distances, such as when municipalities develop a special zoning for wind turbines. The 10-H-law is unique in Germany although the Federal Government, the Bundestag and Bundesrat had included a special clause in the Federal Building act that permitted local setback distances to be established.
In the order issued by the Constitutional Court, Bavaria exercised its legal right granted by the federal government had previously acknowledged and that the government and CSU had not exceeded their rights. Those opposing the 10H law insisted Bavaria had reached far beyond the rights granted.
Only 0.1 percent of the land available
Under the 10 H law, expansion of wind power in Bavaria may be virtually impossible, say opponents. As evidence, they argued that only 0.1 percent of the land in Bavaria is available for the construction of wind turbines. This claim was contradicted by the Constitutional Court, by referring to a study by the Federal Institute for Building, Urban Affairs and Spatial Development.
According to the study, about four percent of the land would remain available for wind turbines. The prerequisite is, of course, that the facilities are 150 meters high which would reduce the minimum distance between the nearest residential area to 1500 meters. This estimate convinced the Constitution Court that even under 10 H rule there remains sufficient room for the wind power. Especially since investors are not entitled to the maximum and thus most profitable technical standard of their facilities.
"Of course we accept the verdict," said Grünen- faction leader Ludwig Hartmann. "But I'm absolutely disappointed." The Constitutional Court judges would concerned with purely formalistic arguments and allowed the real impact of the law to be ignored.
"This will require Germany's energy transition to proceed without Bavaria," said the Green energy expert Martin Stümpfig. The SPD deputy Natascha Kohnen also expressed his disillusioned stated, "There is nothing to gloss over, we have lost all along the line." Thorsten Glauber of the liberal voters now wants the State Government to explain how it intends to implement its stated goal of 1500 wind turbines in Bavaria by 2021.
Even the Birds Bund LBV expressed disappointment
Environmental and conservation organizations were critical as well. The Bund Naturschutz (BN) has struggled from the beginning against the 10-H-law because, in their view, it also torpedoes Germany's energy transition. BN chief Hubert Weiger stated that they will continue the fight for the wind power.
"We will fight with all political means towards the energy transition-prevention policy of the state government and the CSU," Weigert said. He appealed to the local authorities, to consider "using a few options for conservation-friendly wind turbine locations." Even the Birds Bund LBV expressed disappointment. While inherently critical of wind power because of the massive impacts on bird life, the group fears that wind turbines will increasingly be sited in forests and other sensitive areas.
But within the Bavarian government, there was great satisfaction. With the 10-H-law, "we can now make the energy transition in agreement with the general population," said Energy Minister Aigner. "Because if there is a consensus on site, wind turbines can be built closer to residential buildings."
Interior Minister Joachim Herrmann even spoke of a strengthening of local government. "If municipalities want shorter distances, they can opt for that through planning." This is precisely what helped the led to Constitutional Court judges.to their decision on the 10-H-law.
Translation to English using Google Translate.