Legal tensions due to procedural efficiency of Section 4a of the Environmental Impact Assessment Act (“EIA”) (Umweltverträglichkeitsprüfungsgesetz, “UVP-G”) for wind power plants 

The newly created Section 4a EIA is intended to enable a fast track for wind power plants in the light of procedural efficiency and to soften the spatial planning competence of the provinces or municipalities and to encourage them to effective supra-local and local wind energy spatial planning. In federal provinces with an effective supra-local wind energy planning but no concretization at the municipal level in the zoning plan (local wind energy planning), the zoning plan should not be used as a criterion for the permissibility of project construction in the future. If there is no local wind energy planning in addition to the supra-local one in a federal province, projects can also be approved without these spatial planning instruments if the municipality approves the project. 

Initial situation 

Especially in the case of wind power plants, spatial planning regulations are decisive for a positive project realization and often hinder the implementation due to the duration of the procedure and the different parties involved (federal province/municipality). In the case of wind power plants subject to EIA there is an additional area of conflict in terms of competence law as a project subject to EIA only requires a single approval decision under the principle, in which the remaining approvals - provided for in the individual federal and provincial states - are decided on in a concentrated manner. 
 
Such a concentration regulation is opened up to the federal legislator by the competence of Article 11 (1) (7) of the Federal Constitutional Act (“FCA”). This provides that environmental impact assessments for projects that are likely to have a significant impact on the environment are a matter for the federal government in terms of legislation and for the provinces in terms of implementation. In this context, Article 11 (1) (7) FCA allows the possibility of co-application of legal provisions, compliance with which is otherwise the responsibility of other authorities. The federal legislator, however, has no power to intervene in matters of provincial jurisdiction. Rather, it must be content with the co-application of these areas of competence, which presuppose an exact and identical co-inclusion. An encroachment on the substantive provincial competence through its content is already given if individual regulatory elements are omitted. 
 
However, Section 4a EIA, which was newly introduced in the course of the EIA amendment (BGBl. I Nr. 26/2023), can create a tension between the consideration of individual competence elements and the respective requirements of spatial planning. In this context, Section 4a EIA makes three key statements, the regulatory content of which affects both the state and the municipal level:

(i)     Current supra-local wind energy planning

Section 4a (1) EIA initially stipulates that wind power plants (within the scope of application of the EIA) are to be realized primarily on areas designated for this purpose under planning law at the supra-local level for wind power plants (current supra-local wind energy area planning) of the respective federal province, in line with and in accordance with the expansion targets set out in Section 4 of the Renewable Energy Expansion Act (“REE”) (Erneuerbaren-Ausbau-Gesetz, "EAG").   
In this context, the legislator requires a spatial planning framework at the supra-local level in the form of a definition of certain zones where wind energy projects shall be realized in the future. It is important to note that the federal legislator requires the provinces to provide concrete and positive specifications, i.e. the designation of areas where wind power plants can be built. The concrete classification takes place subsequently as a regulation of the municipality through a zoning plan, which itself must be oriented within the framework of the specifications of the supra-local spatial planning.

(ii)     Zoning plan not a criterion for admissibility 

Section 4a (2) EIA regulates the case where a current supra-local wind energy area plan as defined in the EIA already exists in a province, but the necessary concretization through the zoning plan of the municipality at the local level is missing. In such a case, the zoning plan shall not to be taken into account as a condition of permissibility for the realization of the project.

Section 4a (2) EIA now makes it possible to approve, construct and operate a project in a designated zone even if no dedication required by spatial planning law exists for this purpose.

(iii)     Supra-local wind energy planning and zoning plan no admissibility criterion

In the last case, Section 4a (3) EIA regulates the circumstance that, in addition to the required concretization in the zoning plan (local wind energy area planning), the supra-local wind energy area planning in the federal province is also missing.  
 
Even in such a case, the realization of the project is possible, as far as the consent of the locating municipality, on whose municipal territory the wind turbine is to be erected, has been obtained.

Aspects of competence law

While the federal legislator may have had procedural efficiency for the construction of wind power plants in mind with Section 4a EIA, the far-reaching effect of this regulation in terms of competence law was given comparatively less consideration.

Thus, the regulatory content of Section 4a (2) EIA at least indirectly interferes with the constitutional right of the municipality to self-government pursuant to Article 118 (3) (9) FCA (local spatial planning) and Section 4a (3) EIA furthermore also interferes with the planning competence of the federal provinces.

Against this background, the federal legislator argues that a regulation of procedural efficiency for wind power plants is indispensable to achieve the climate targets in the absence of energy planning. Due to the lack of planning designations of the federal provinces, the federal legislator makes use of the competence of Article 11 (1) (7) FCA, which is based on a comprehensive concept of approval. Thus, the federal legislature is not limited to merely ordering the co-application of provincial law provisions but may also establish substantive approval criteria. The exclusion of licensing requirements under federal province law may also require the amendment of co-applicable federal province law, if Article 11 (1) (7) FCA can thereby be considered.

However, the federal legislator is not entitled to intervene directly in the material situation. Whether such an interference exists will ultimately have to be resolved by the Constitutional Court (Verfassungsgerichtshof, “VfGH”) within the framework of the jurisdiction of Article 138 (1) (3) FCA.

Effects on practice

For wind turbine operators and project companies, Section 4a EIA offers exciting possibilities that can also contribute to an "acceleration". Especially in federal provinces where wind power plants have been seen rather "skeptically" so far and where there is no effective supra-local wind energy planning, there is now the possibility to actively promote wind power plants through a shoulder-to-shoulder approach with the respective siting municipality, even against resistance of the province in terms of spatial planning law.

In the same way, Sectoin 4a EIA opens up the possibility of softening any resistance from the siting municipality under regional planning law by means of Section 4a (2) EIA in wind power friendly federal provinces.

Against this background and the known duration of dedication procedures, it may also be expedient for project developers to actively seek the EIA obligation of a project and just to benefit from this new provision of Section 4a EIA.

It remains to be seen what concrete effect this federal legal provision will have on the individual federal states and municipalities. On the one hand, it is conceivable that there will be a race between the federal states regarding the establishment of supra-local wind energy planning. On the other hand, there will probably also be municipalities and federal states that will generally question Section 4a EIA regarding its admissibility under competence law.

Conclusion

Despite possible legal uncertainties, we believe that Section 4a EIA represents an instrument to promote and accelerate the construction of wind power plants and, in any case, to exert pressure on the federal provinces and local communities to deal intensively with the issue of wind power. It is now up to the practice to fill this instrument with life.