What happens if the 10H rule for wind turbines falls?

Will there be a showdown on wind energy at the planned meeting between Robert Habeck and Markus Söder this Thursday? The Green Federal Minister for Economic Affairs and Climate Protection wants to overturn the controversial minimum distance rule for wind turbines in Bavaria. But can he so easily abolish Paragraph 249 of the Building Code, which allows the Free State to take a special route with 10H, and prevail against Bavaria’s CSU Prime Minister?

Since November 2014, wind turbines in Bavaria have had to maintain a minimum distance of ten times their height from residential buildings (10H) – unless the municipalities explicitly create exceptions to this rule with their land use planning. The result: wind turbines were “not the rule, but the absolute exception,” says Thorsten Müller, head of the Environmental Energy Law Foundation in Würzburg. The 47-year-old legal scholar advises the federal government, state governments and the EU Commission on the question of how the legal framework should be further developed in order to achieve energy policy goals. In an interview, the lawyer explains whether Markus Söder has the right on his side – or Robert Habeck. And what it would mean if 10H falls.

Question: From a legal point of view, who has the better cards: Markus Söder or Robert Habeck?

Thorsten Mueller: Legally, the situation is very simple. It is up to the federal legislature. There is a special rule that allows Bavaria to provide for the 10H rule as a state law. Would the federal legislature remove this special rule? what would be possible with the majority of the coalition and without the consent of the Bundesrat – then 10H would be history.

New powerful wind turbines are now 200 to 250 meters high. Without 10H, could these giants get very close to towns in the future?

Müller: No. Wind turbines must maintain certain distances from residential buildings. Jurisdiction regularly no longer assumes an “optically oppressive effect” from a minimum distance of three times the height of a wind turbine to the next residential building. Depending on the topography, experts decide between a minimum distance of twice to three times the height of the wind turbine, i.e. 2H or 3H, for example whether there is a forest in between, whether the wind turbine is visually intrusive and whether it can be built.

Are there other legal requirements regarding the distance between wind turbines and houses?

Müller: Yes. There are distances that are considered necessary for health protection – for example noise protection – and there are the so-called “precautionary areas” that make the distances even larger. All these points have to be checked individually in order to find the location where the intended wind turbine can be built or only a quieter model is possible. In some federal states, 800 to 1200 meters are defined as distances, depending on the reference point.

What were the consequences of the 10H regulation in Bavaria?

Müller: 10H has taken it to the extreme and defined a distance that goes far beyond the usual precautionary distances. 10H has thus reversed the rule-exception relationship in Bavaria. Even in the areas intended for them, wind turbines have not become the norm, but the absolute exception.

If 10H falls: would every community in Lower Franconia have to fear that a wind turbine would be built on their doorstep?

Müller: No, there are still control mechanisms that determine where wind turbines can be built. Even if 10H falls, the regional plan applies. It determines which areas are permitted for wind turbines. In Bavaria, this does not have to be discussed in every single municipality.

According to the regional plan of the government of Lower Franconia, only 1.5 percent of the area in the planning regions of Würzburg and Main-Rhön with a total of around 700,000 hectares are defined as priority and reserved areas for wind turbines. Is that enough to massively expand wind energy – as the new traffic light coalition intends to do?

Müller: Probably not, because the traffic light coalition has decided to allocate two percent of the country’s area to wind energy. We have not currently identified these two percent as priority or reserved areas for wind energy, either in Bavaria or in Lower Franconia.

Lower Franconia accounts for only 12 percent of Bavaria’s total area, but has a 23 percent share of wind power. Could the region still be obliged to designate more areas for wind turbines?

Müller: Theoretically yes. Bavaria could provide for a distribution and define these as spatial planning goals. These goals are binding for the individual planning regions. If it said that there is more to do in Lower Franconia in the future, then that would be binding for Lower Franconia.

Or Bavaria buys its freedom if deals between the federal states are allowed.

Müller: There is speculation about this strategy in both Berlin and Munich.

In northern Germany the wind is much better than in Lower Franconia, for example.

Müller: This is especially true for a relatively narrow strip of the coast. But seriously: Germany will not be able to allocate two percent of the state area for wind energy if we largely exclude the largest state in terms of area, Bavaria. In addition, the most even possible distribution of the wind turbines is important for system security.

Because otherwise you would have to lay lines again to transport the electricity to Lower Franconia?

Müller: Even if we expand wind energy in Bavaria, we will not be able to do without expanding the transmission grids. But if we stopped building new wind turbines in Bavaria, we would need considerably more lines.

In Lower Franconia, red kites, black storks, eagle owls, peregrine falcons and Montagu’s harriers have already prevented many a wind turbine. Could the Federal Climate Protection Minister overturn species protection in the future in order to build new wind turbines in the region?

Müller: That is not politically wanted. There are also legal limits. Species protection law is anchored in European law. But if wind turbines are to have priority on two percent of the country’s area in the future, the legislator wants to make greater use of the exception options under species protection law on these areas. Conversely, this means that 98 percent of the area is not available for wind energy. Particularly sensitive areas can be cut out further.

In other words: If a pair of red kites breeds in a landscape protection area in the Rhön, Spessart, Steigerwald or the Haßberge, no wind turbine will be built there in the future either. But if the pair of birds breeds in the district of Würzburg, it will be unlucky, right?

Müller: That could be it. If priority areas are designated for wind energy, there are many indications that species protection in these areas will have to take a back seat in the future. At the same time, however, the federal government announced that it would set up programs to help species. In other words, to create special areas in which species that are sensitive to wind turbines can find new habitats.

The approvals for wind turbines are currently dragging on for years, also because citizens’ groups are suing in court. Do you anticipate a massive spike in lawsuits if 10H falls?

Müller: That does not depend on 10H, but on whether the new federal government makes the test procedures for wind turbine permits in federal law simpler, clearer and, above all, more legally secure. The less error-prone the procedures are in the future, the fewer complaints there will be because they then have less chance of success.

Is what the traffic light government is planning in terms of wind energy realistic?

Müller: It is ambitious, but quite realistic and necessary. Without a massive expansion of wind energy, we will neither be able to maintain Germany as a business location nor achieve our climate protection goals, to which we are constitutionally obliged and to which we have committed ourselves under international law in the Paris Climate Agreement. Gone are the days when we could say we’re shifting responsibility.

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