Failure for wind industry: ECJ strengthens bird protection

To protect individual animals, wind farms can also be prevented in the future. The wind industry fears further delays in the energy transition.

Berlin, Düsseldorf -- The energy transition is a serious threat to the Red Kite. The collision with a wind turbine is an increasingly common cause of death for the bird of prey.

For citizens' initiatives that want to prevent wind turbines in their neighborhood, birds like the red kite are therefore a good argument to sue such projects with reference to bird protection. And building a wind farm is becoming more and more difficult.

The European Court of Justice (ECJ) on Thursday reinforced bird protection in construction projects and surprisingly did not follow the recommendation of the ECJ Attorney General Juliane Kokott. 

The ECJ's ruling contradicts a proposal by the court's advocate general who had argued that the safety of individual birds whose flight route or nesting site would be impaired should no longer be the focus, but instead the policy should protect entire populations of the bird species.  

“There is no relief for future approval practice. As before, every individual must be taken into account, and it is not enough that the population be preserved, ”explains Johannes Schulte, an expert on environmental and planning law at the Ruhr Chancellery Kümmerlein. This is good news for environmentalists and citizens' groups - a setback for the wind industry.  

Because the increasing flood of lawsuits has driven up the implementation times for wind farms in this country. It can now take three to five years from planning to commissioning. This is also one of the reasons for the slow progress in the expansion of wind power in Germany. 

With 1431 megawatts (420 turbines) more wind energy was installed in 2020 than in 2019. But for the third year in a row it was not enough to reach the target of 2800 megawatts (MW) set by the federal government.

Over 1000 citizens' initiatives all over  Germany  are now campaigning against the construction of new plants - including in court. 

The average duration of the procedure for the necessary permits has almost tripled over the past few years, to 700 to 800 days. Nature conservation associations and citizens are complaining more and more often, even if the building permit and numerous reports on nature and species protection are already available. 

But not only energy projects were affected in the past. A good year ago, for example, Tesla was temporarily prohibited by a court from clearing the forest for the plant in Grünheide with reference to bird protection . In November 2020, environmental associations filed a lawsuit against the building permit for a new Amazon distribution center in Echzell, Hesse. They also invoked bird protection. Construction work was suspended for months.

German wind industry disappointed

Actually, the expectation was great that that ECJ would limit the right to bring an action and defuse the situation. The fact that things turned out differently than the wind industry had hoped is due to the legislation in Sweden. There is a dispute over a permit to clear a forest in which protected birds also live.

A Swedish court referred the relevant question on bird protection to the European court for clarification. However, because Sweden does not protect its birds via the Birds Directive, as it is regulated in Germany, but via the much stricter flora, fauna and habitat directive, there is no noticeable change in German legislation. Otherwise, the following applies: The decisions of the ECJ must be observed by German courts. European law takes precedence over national law.

The German wind industry is at least disappointed. "The judgment does not help us as an industry," said Wolfram Axthelm managing director of the German Wind Energy Association (BWE) to the Handelsblatt. The challenge remains of balancing the protection of the individual birds and the protection of the population. The ball is now with the legislature in Germany. "The Environment Ministers' Conference has taken up the topic and must now come to results as quickly as possible," said Axthelm.

The applicable regulations have massive effects, especially for the planners and operators of wind farms. The construction of a wind farm now takes up to six years, in individual cases longer, says Markus Lesser, head of the wind farm project planner PNE. "Currently, individual species protection is a major hurdle in every licensing procedure," says Lesser. Much more must be sought together for solutions "to get species protection and wind energy under one roof," demands Lesser.

The nature conservation association NABU, however, welcomed the judgment. It follows the previous line of the ECJ and avoids “the emergence of new legal uncertainty regarding the validity of EU species protection law for birds, which would have arisen if the court had followed the advocate general's conclusion,” said Lars Lachmann, Head of Ornithology and Bird Protection at NABU , the Handelsblatt. 

The judgment confirms the current interpretation of the applicable regulations in Germany, including with regard to wind energy, said Lachmann. It must also be checked for each bird species whether there is a significantly increased risk of killing individuals of a species.

Many projects have also been opposed because the habitats were threatened by endangered species of lizards and frogs. "Bird protection not only includes endangered animal species, but also non-endangered 'commonplace species'", as Schulte explains. 

So it doesn't even have to be a red kite, which as a bird of prey in Germany needs special protection anyway. "That is why it has so far been particularly critical for projects." 

Translation to English using Google Translate