Wind Energy: On the Path to the 2% Target

From the perspective of some local and state authorities responsible for approving wind energy plants (WEA), the German Bundestag threw a spanner in the works on June 6, 2024. On that day, the parliament decided to introduce a new paragraph 1a in § 9 of the Federal Immission Control Act (BImSchG). This regulation specifically concerns wind turbines. Accordingly, if the full set of documents for approval under the BImSchG has not yet been submitted, but the applicant has a legitimate interest in obtaining a preliminary decision, the authority must rule on individual approval requirements upon request.

Since then, many wind farm project developers have exploited the new procedure for a "light preliminary decision" to easily obtain official confirmation of the building planning legality of wind energy plants. In the past few months, especially for sites outside future wind energy areas, they have used this new option to secure locations that, after the current planning process for designating wind energy areas by the spatial planning authorities is completed, will clearly lose their preferential status under § 35 of the Building Code.

In February, during the final stretch of the now-ended legislative period, the federal legislature put a stop to this practice. According to the new regulation, there is no longer a "legitimate interest" in a preliminary decision under § 9 Abs. 1a BImSchG if the site is outside designated or planned wind energy areas.

Nationwide Area Targets

The background: With the coming into force of the Wind Energy Area Requirement Act (WindBG), the federal government obligates the states to designate at least 2% of their state area, on average, for wind energy use by 2032 at the latest. An intermediate target of 1.1% on average is to be achieved by the end of 2027. However, many states want to already set their final area targets by the first deadline of December 31, 2027, as they see no point in a phased approach.

These area targets, which the states have now cascaded down to their individual planning entities through their own laws, are crucial for steering the expansion of wind energy. Until these targets are reached, WEAs are considered preferentially permitted in the outer areas according to § 35 Abs. 1 Nr. 5 of the Building Code (BauGB). However, after the area requirements are met, new plants may only be built in the areas designated for wind power.

Transition Phase

This transition phase led to a flood of applications for immission control preliminary decisions for sites outside the planned wind power areas in some regions. Project developers used this opportunity to secure a legally sound position for their projects before the new regulations took effect.

The wave of applications, which made approval authorities groan and worried affected municipalities and local media about a "runaway growth" of wind turbines, was particularly high in regions where there had been little effort for constructive wind energy planning in the past. But ironically, it was also high in areas where the designation of new wind energy areas was being pursued particularly ambitiously. For example, in North Rhine-Westphalia, where the black-green state government wants to complete the process by the end of 2025 at the latest, two years earlier than required by federal law. As of the end of December, the state government counted over 900 preliminary decision applications outside the draft areas for wind energy areas.

North Rhine-Westphalia's Special Path in Wind Energy

After the Higher Administrative Court of Münster prevented it in September 2024 from initially freezing the flood of applications at the district government level, it was the North Rhine-Westphalia coalition that lobbied hard with the federal legislature for the now successful change in the legal situation. On February 28, 2025, the corresponding amendment to the BImSchG came into force. It largely nullifies § 9 Abs. 1a BImSchG, which first enabled the "light preliminary decision" procedure.

The procedure remains readily available only for repowering projects, that is, replacing existing wind turbines with more powerful models. The change affects both newly submitted and still undecided applications for preliminary decisions under § 9 Abs. 1a BImSchG. However, already issued preliminary decisions remain valid, as the German Wind Energy Association (BWE) emphasizes in a background paper on the topic.

But the state government of North Rhine-Westphalia felt that the federal legal intervention, which came about at its instigation, was not sufficient. Therefore, the state parliament in Düsseldorf passed a much more far-reaching "wind energy moratorium" (§ 36a of the North Rhine-Westphalia State Planning Act). 

This prohibits all decisions on wind energy projects in areas outside the planned wind energy areas for half a year. The moratorium applies to complete approval applications as well as not just preliminary decision applications. Exceptions are only made for repowering projects and for projects whose documents were fully submitted ten months before the law was changed.

Wind Energy Approvals in North Rhine-Westphalia

North Rhine-Westphalia has recently issued far more approvals for wind farms than other federal states. Therefore, the wind industry between the Rhine and Weser rivers is doing well, so many companies can probably take the moratorium in stride. But this is not necessarily the case for smaller project developers. Therefore, the industry association sharply criticizes the halt for projects ready for approval with complete documentation: "Substantial investments in the six-figure range have already been made in these projects. 

The state government is undermining confidence in North Rhine-Westphalia as an investment location," says Bärbel Heidebroek, President of the BWE.

However, the association now seems to have come to terms with the federal legal regulation, which only affects preliminary decisions. In response to a query from Energiekommune, BWE Managing Director Wolfram Axthelm explained that the designation of wind energy areas was also progressing well in other federal states, so the new regulation by the federal legislature did not cause him major concerns.

Opening Clause Remains Valid

Amidst the synchronization problems between the old and new legal situations, municipalities located outside announced wind energy areas still have the option until December 31, 2027, to designate their own wind areas. They can use the municipal opening clause, which can be found in § 245e Abs. 5 of the Building Code (BauGB). This clause allows municipalities to independently designate additional areas for wind energy, even if these are not directly compatible with the goals of spatial planning.