New BImSchG - what possibilities of acceleration will it bring?

The amendment to the German Federal Immission Control Act (Bundes-Immissionsschutzgesetz, BImSchG) is in force. The aim of the amendments is to accelerate approval procedures. The expansion of wind energy, in particular, should benefit from this, without climate protection being neglected.

The new provisions have been in force since 9 July 2024 and, in addition to the BImSchG, primarily affect the 9th and 12th Ordinances Implementing the Federal Immission Control Act (Verordnung zur Durchführung des Bundes-Immissionsschutzgesetzes, BImSchV) (Federal Law Gazette 2024 I No. 225 of 8 July 2024). The law had been debated in parliament for almost a year (1st reading on 6 July 2023).

Climate as a protected good within the meaning of the BImSchG

Climate is expressly included as a protected good pursuant to Section 1 (1) and Section 3 (2) BImSchG (new version). This now clarifies that ordinances issued on the basis of the BImSchG can also regulate requirements for climate protection. 

Acceleration of the approval procedure

The BImSchG amendment provides for faster and less bureaucratic approval procedures.

• Simplified procedure for the early start of construction measures
  In future, a positive forecast decision by the authority will not be required for alteration approvals and approvals of installations on an existing site (Section 8a (1) sentence 2 BImSchG). The construction measures are carried out at the risk of the developer, who must ensure that no relevant public law regulations (e.g. building law, environmental regulations) are violated.
                                                                     
• Digitisation of the approval procedure 
  In accordance with Section 10 (1) and (4) BImSchG, approval authorities may require applications to be submitted electronically in future. Exceptions apply to persons without internet access. In accordance with Section 10 (6) BImSchG, hearings can be held online via video or telephone conference. 
   
• Accelerated procedure regarding the involvement of authorities 
  If an authority to be involved does not issue a statement within one month and does not obtain an extension of the deadline, it can be assumed that it does not intend to make a statement (Section 10 (5) BImSchG). In the case of renewable energy installations or electrolysers for green hydrogen, an extension of the deadline is excluded. If no statement is issued, the competent approval authority can obtain an expert opinion or issue a statement itself.                                                                                                                                                                                                                                                                           
• Public participation in case of alteration approvals
  In principle, the approval authority is not to involve the public in the case of alteration approvals (Section 16 (2) sentences 1 and 2 BImSchG). However, according to the newly introduced Section 16 (2) sentence 5 BImSchG, the approval authority must now involve the public by way of public notice and display if the alteration results in the installation reaching the performance thresholds or installation sizes defined in Annex 1 of the 4th BImSchV (marked with the letter E in column d). 
   
• Public notice 
  At the request of the party carrying out the project, a public notice must be made in simplified proceedings (Section 19 (3) BImSchG). With this, the legislator is now clarifying that the public notice in simplified proceedings generally triggers the legal protection periods and not only in cases of repowering.
   
• Approval assumption and completeness of the documents 
  Section 7 (2) of the 9th BImSchV defines the term "completeness" for the first time. The authorities must check the documents as to their completeness within one month and can only extend the approval period once by three months. The deadline for the approval procedure also begins to run if the authority does not respond within the specified period or if the requested documents are subsequently submitted.
   
• Strengthened role of the project manager 
  In future, the project manager not only "can", but "should" be deployed. The project manager can act as an administrative assistant and take on new tasks in accordance with Sections 2a and 2b of the 9th BImSchV, such as checking the completeness of the application.
   
• Hearing 
  In the case of wind turbines, electrolysers and green hydrogen storage facilities, a hearing is not required (Section 16 (1) sentences 2-5 of the 9th BImSchV). For other installations, a hearing only takes place at the request of the party carrying out the project or if the authority deems it necessary in individual cases (Section 16 (1) sentence 1 No. 5 of the 9th BImSchV). In this case, the hearing must be held within four weeks.

Special facilitations for wind turbines 

• Simplified procedure for repowering wind turbines                                                   
  • The primary purpose of the amendments to Section 16b BImSchG are clarification and harmonisation with nature conservation law. A delta assessment is carried out for all public concerns. The approval authority only examines whether repowering has a negative impact in relation to the current situation, which may be significant for the assessment according to Section 6 (1). Repowering is possible at a distance to the existing turbine of a maximum of five times the total height of the new turbine. The new turbine must be erected within 48 months of dismantling the existing turbine.                                                                                                              
  • Approval assumption in case of changes in type: If the authority does not make a decision within six weeks, the change is deemed to be authorised in accordance with Section 16b (9) BImSchG.                                                                                                                                                                                               
  • If the operator is not identical: It suffices if the new operator submits a declaration of consent from the existing operator to the approval authority by the time the decision on the repowering application is made (Section 16b (10) BImSchG).                                                                                                                                                                                                                                                              
• Preliminary decision without EIA assessment 
  In future, applicants will be able to clarify project-specific questions on individual approval requirements prior to the approval procedure in accordance with Section 9 (1a) BImSchG without an environmental impact assessment or preliminary review and thus obtain a preliminary decision. 
   
• Legal protection 
  As before, decisions approving wind turbines are immediately enforceable. An objection to the approval of a wind turbine now has to be lodged within one month. Applications for an order of suspensive effect must be submitted and substantiated within one month.

Outlook

The BImSchG amendment should accelerate and reduce bureaucracy in procedures, especially for wind turbines. Many regulations are aimed at counteracting procedural delays by the authorities. This should promote the expansion of wind energy and fulfil the demands of the industry and associations. Whether this will be successful will be seen in approval practice and will depend not least on the staffing levels at the authorities. 

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