Accelerating approval: Coalition remains vague

Faster approvals are crucial for the energy transition and infrastructure expansion. The coalition agreement remains vague as regards concrete measures to achieve this.

The coalition agreement between the CDU, CSU and SPD gives prominence to the issue of accelerating planning and approval. Concrete measures are outlined, but so are vague promises. In the last legislative period, the focus was on measures to accelerate the energy transition. In future, other infrastructure and industrial projects should also be easier to implement. To this end, the coalition is planning to restrict participant rights and lower material standards.

Implementation of RED III under time pressure 

One of the most comprehensive legislative projects to accelerate the approval and planning process will be the further implementation of the Renewable Energy Directive (RED III Directive (EU) 2023/2413). Under this Directive, Member States are required in particular to designate acceleration areas in which renewable energy plants can be approved under significantly simplified conditions. Existing wind energy areas were already declared acceleration areas up until 21 May 2024. The bill (Bill to implement RED III) that was intended to set the course for further important decisions in autumn 2024 was not passed due to the collapse of the Traffic Light Coalition. Simplified approval procedures must be introduced by 21 May 2025 and apply in the abovementioned areas. The new government will have to make a prompt decision on how to implement the directive.

The coalition agreement emphasises the intention to implement RED III promptly (p. 30, 37). The concrete implementation remains vague, with various measures to be "examined", in particular the application of simplifications to energy transition infrastructure projects. It remains unclear whether the simplifications applicable in the acceleration areas will also be applicable outside the acceleration areas, or whether the designation of acceleration areas for infrastructure projects will be examined. RED III provides for the optional designation of such "infrastructure areas".

In addition to implementing RED III, the coalition partners are planning various individual measures to speed up approval procedures. These will be initiated with a call for a "fundamental revision of planning, construction, environmental, procurement and (administrative) procedural law".

Concrete procedural simplifications for infrastructure projects and major projects

At the procedural level, the coalition is planning concrete simplifications. The aim is to create a uniform procedural law ("one-for-many") for infrastructure projects (p. 22). This should be viewed positively, as the differing types of procedure, each with their own deadlines, procedural steps and participation rights, cause uncertainty for all parties involved and cost time.

In addition, planning permission is to become the standard procedure (p. 22). Currently, planning permission is only admissible if the rights of third parties are not affected or if they have consented to the project. For this reason, extensive public participation can be dispensed with, which saves time and money. It remains to be seen how planning permission can be transformed into a "standard procedure" under these conditions without infringing the rights of third parties or making the planning permission procedure resemble the planning approval procedure too closely. 

In addition, the participation of third parties in the procedure is to be restricted: Among other things, discussion meetings are to be optional in future. At a discussion meeting, objections previously submitted in writing are discussed orally with all parties involved. Various exceptions to the discussion meeting, which is generally mandatory under planning approval law, already exist.

In addition, public interest representatives and the public will only participate once (p. 22) instead of twice (early and formal participation) as is currently the case. Reducing participation rights in this way can significantly speed up approval procedures. However, it will also have a negative impact on the acceptance of large projects.

Lowering European protection standards?

Furthermore, the coalition is planning to water down standards that have up to now been mandatory under European law. It remains to be seen how exactly these plans will (or can) be implemented. The coalition wants to work towards introducing substantive preclusion. If affected parties have not submitted their objections during the approval procedure, they will in future also be excluded from the legal proceedings. Such a change is likely to significantly streamline approval procedures and possible subsequent court proceedings. It forces affected parties to present their objections in a substantiated manner at an early stage. However, it is largely inadmissible under current EU law. The coalition therefore wants to work towards a change in European standards.

Changes are also planned to the right to take collective action. Up to now, this has enabled environmental associations to complain about errors in the permission procedure without having to demonstrate that they are personally affected. The coalition parties want to reform this right and gear it towards " those actually affected". It remains to be seen how this will be implemented in practice. The rights of environmental associations, as legal entities, are rarely affected by planned projects. As the right to take collective action is enshrined in European law and has been repeatedly strengthened by the CJEU, it is to be reduced to the minimum level required under European law and the German government will work towards further international reduction through initiatives.

There are also plans to facilitate the protection of species and nature. In particular, the population approach is to be applied uniformly throughout Germany (p. 22, 30). This means that, in principle, it will no longer be necessary to prevent injury to or killing of each individual animal, but the focus will be on the protection of entire populations of a species. In view of the frequent hurdles under species protection law for infrastructure projects, this approach is likely to have a considerable accelerating effect. However, the compatibility of this measure with EU law, such as the Habitats Directive and Birds Directive, is also doubtful, at least in this generalised form.

Acceleration of industrial projects

The acceleration of industrial projects is to be achieved in particular through leaner implementation of EU directives in order to minimise the resulting burdens. For industrial projects, potential for acceleration is also to be realised in the German Emission Control Act (BImSchG) and in various subordinate regulations (Technical Noise Abatement Directive and Technical Air Pollution Control Directive), but without being further specified in further detail. A revision of the Technical Noise Abatement Directive in particular was already planned in the last legislative period. However, the coalition agreement leaves open how this is to be implemented in concrete terms and whether it will actually accelerate the implementation of projects. The pact for accelerating planning, approval and implementation is also to be "further developed" for industrial projects. The acceleration of industrial projects therefore remains more of a declaration of intent.

Increased focus on infrastructure projects instead of expanding renewable energies

The measures planned by the future German government include a clear commitment to accelerating the planning and approval process. Unlike in the previous legislative period, the focus will be less on renewable energy projects and more on infrastructure projects. It should also be possible to implement industrial projects more quickly.

The coalition agreement provides for a range of measures, some of which are very specific, and others which are vague intentions to carry out examinations. It remains to be seen in detail which projects will actually be implemented and how they will interact. Project developers can therefore continue to expect planning and approval law to be subject to constant change and the legal environment to remain dynamic. Project developers should therefore keep a close eye on legal innovations and incorporate them into their project planning at an early stage.