Renewable energy transition ahead

The energy and climate crises are leading to new proposals to accelerate the approval of renewable energy projects. New EU and national energy and environmental packages are on the way. At the EU level, the European Commission has unveiled the REPowerEU plan in response to the hardships and disruptions to the global energy market caused by the war in Ukraine. At the national level, the recently presented amendment to the Environmental Impact Assessment Act (EIA Act) is intended to accelerate the EIA procedures for renewable energy (RE) projects in Austria.

The REPowerEU plan

The REPowerEU plan aims to reduce dependence on mainly Russian fossil fuels and to accelerate the implementation of energy transition projects. To achieve the desired procedural acceleration of RE projects, the European Commission has prepared a non-binding recommendation on the interpretation of existing EU environmental law. Especially the specification of essential provisions of species protection under EU law has a high acceleration potential for permit practice.

Furthermore, the REPowerEU plan proposes to amend the Renewable Energy Directive. Member States will be obliged to designate sufficient areas for renewables ("go-to" areas). In this process, previous content from the approval procedures is lifted to the planning level, particularly regarding species protection.

For approval procedures, the plan includes exemptions from obligatory EIA and nature impact assessments, accelerated process duration and document reviews, and even the assumption of approval. Simplifications in the approval procedure are planned for all RE projects and especially include the presumption that such projects are in the overriding public interest.

Nevertheless, it will take time for the package of measures to be implemented into applicable national law. Whether and to what extent the proposed instruments can have a decisive influence on the renewable expansion targets remains to be seen.

EIA Act amendment 2022

At the national level, the Federal Ministry for Climate Protection has presented an amendment proposal to the EIA Act. One focus of the proposal is on accelerating approval procedures, with special attention paid to RE projects.

The proposal focuses on new ways for the EIA authorities and the Federal Administrative Court, as the appeal body, to structure the process. Essentially, objections in all EIA procedures will only be effectively raised within the public display period. After the public release and announcement of the environmental impact analysis report or the summary assessment, deadlines can be set for the parties to the procedure to make further submissions. The aim is to put a stop to delaying tactics currently used by project opponents. Furthermore, the state of the art is to be frozen at the beginning of the public announcement of the project. In this way, time-consuming revisions of submission documents and expert opinions are to be contained.

Regarding energy transition projects, the proposal provides for numerous special provisions in deviation from the existing system. For example, it should not be possible to refuse EIA approval solely on the grounds of adverse effects on the landscape if there is comprehensive energy planning. Energy transition projects will be presumed to be in the high public interest. In addition, the EIA authorities will be able to exclude the suspensive effect of appeals against an EIA if the appeals are not substantiated. For wind power plants certain zoning requirements will not apply.

Outlook

At present, it is not foreseeable when and in what form the new proposals will be bindingly implemented. Regardless, additional power plants will be needed to achieve the national and EU expansion targets for RE and a reduced dependence on fossil fuels. Careful planning and legal advice in a highly complex environment will continue to be a condition for the successful implementation of RE projects in the future.

authors: Benjamin Schlatter, Christoph Cudlik, Sarah Wolf