Long licensing procedures for renewable energy: will European regulations soon offer a solution?

In general, quite a few permissions may be required. For example, when extracting geothermal heat - this obviously depends on the location and (planning) situation - consider the following permissions already:

1. Search area allocation permit, start-up permit and follow-up permit.
2. If the extraction plant is not yet possible under the current zoning plan: a new zoning plan (or land use plan) or an environmental permit to deviate from the zoning plan. An environmental impact assessment may also be required in this context.
3. Environmental permit for establishing an establishment/mining structure and building a structure (environmental permit, building and possibly construction under the zoning plan).
4. Water permit.
5. A permit under the Nature Protection Act (area protection) and/or an exemption under the Nature Protection Act (species protection).
6. Permit under the Nuclear Energy Act.

The consents under 2-6 can be prepared with a coordination procedure, which can provide acceleration. In practice, however, we see that the procedures to irrevocable consents are still very long. In Europe they think the same and are (trying to) speed up the administrative procedures. Already on May 18, 2022, the European Commission submitted a proposal to amend several directives (Directive 2018/2001, 2010/31 and 2012/27) on this subject. The proposal includes (briefly) the following:

Go-to areas

Member states must identify go-to areas. These are areas particularly suitable for renewable energy development (excluding biomass combustion plants). Within 2 years of the directive's entry into force, plans containing the go-to areas will be adopted. In doing so, the following applies (among other things):

• Those plans identify areas where deployment of renewable energy is not expected to have significant environmental impacts;
• Appropriate rules (incl. protective measures) are included for the benefit of nature and species, among others;
• Before the plan is adopted, an environmental assessment (a plan EIA) and (if necessary) an appropriate assessment are done;
• The plans are reviewed periodically (at least in the context of updating national energy and climate plans in accordance with the Governance Regulation (Regulation (EU) 2018/1999)).

Expedited procedures in go-to areas

If a project is within a go-to area, this does have some advantages. The procedure is then as follows:

1. Within fourteen days of receipt, the applicant will receive confirmation on the validity of the application.
2. The permit procedure (for all relevant permits for, among other things, construction, repowering and operation of energy facilities as well as the assets required for connection to the grid) does not exceed one year. In justified extraordinary circumstances - for example, if the project has a significant impact on the grid - this period may be extended by three months. Does not the competent authority respond to the applications within one year and no environmental impact assessment is required? Then the administrative steps should be considered "approved. It is unclear whether this then means so-called "permits granted by operation of law" or not.
3. The permit procedure for small installations (capacity less than 150 kW) takes no longer than six months. Again, the decision period can be extended by 3 months in the event of justified extraordinary circumstances and, in principle, the absence of a response constitutes "approved" administrative action.
4. Exemption for a project EIA and appropriate assessment. The competent authority conducts a screening. If the project deviates from the rules and measures included in the plan designating the go-to areas, a project EIR or (if necessary) appropriate assessment will likely still need to be prepared.

Expedited procedures outside go-to areas

Even outside the designated go-to areas, the permit process will be expedited. The permit procedure should not take longer than 2 years. For small projects (power less than 150 kW), it is 1 year.

Renewable energy of higher public interest

It further provides that the production of energy from renewable sources is considered to be of overriding public interest. This is important when weighing interests in (e.g.) the context of an exemption under the Nature Protection Act for protected species.

Will the directive solve the long procedures?

The fact is that the length of administrative procedures is not the only challenge. The explanatory memorandum to the proposal itself lists as other obstacles (among others) the lack of (i) availability of sites, (ii) human resources in government agencies (iii) grid capacity and (iv) public acceptance (support).

An acceleration of administrative procedures - if it will indeed take place - could eventually remove one of the obstacles. How this acceleration is to be achieved among licensing authorities, I strongly question. After all, they are already facing staff shortages and will have their hands full with the Environment Act and other laws and regulations, such as the Collective Heat Supply Act in which many new tasks are assigned to municipalities. However, projects in the go-to areas - if they fit within the plans and regulations - can benefit from (among other things) the environmental assessment already conducted.

Currently, the European Council has reached a general orientation and (as far as is known) negotiations are underway on amendments to the directives. In those negotiations, the government is making efforts, for example, to include energy infrastructure (for renewable energy and sustainability of industry, including the power grid of TenneT and other grid operators) as a category eligible for the go-to areas. It is therefore possible that the guidelines will still be adjusted in some respects. We will of course keep you informed of progress.

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