Dgermany has big plans for the next few years: New wind farms, LNG terminals and robust motorway bridges are needed, and they need to be as cost-effective and as fast as possible. In times of skyrocketing construction costs and a notorious shortage of skilled workers, that’s difficult enough. But the interests of the dormouse and red kite must also be taken into account. Planning law, including the European specifications for tendering, nature and species protection, is full of pitfalls.
In times of crisis, that can no longer be an excuse, which is why the federal government has promised to step up the pace. She wants to streamline planning law so that modernization is no longer an unfulfilled promise. Federal Minister of Justice Marco Buschmann has now presented a package of measures that starts where the problem is particularly visible: in German administrative court processes. Every major project ends up there sooner or later and is dismantled in front of an interested public. Changes at this stage can therefore be sure of some attention. By this time, however, the child has long since fallen into the well. In order to really change something, it would have to be done much earlier: in the approval process.
Skills shortage in authorities
The wheels of bureaucracy grind particularly slowly because the authorities lack specialists and the necessary equipment, because forms have to be printed out and minutes of hearings have to be typed up. The Tesla billionaire Elon Musk is said to be less despairing of the complaints from Bavarian environmental organizations than the state of the administration when building his gigafactory in Brandenburg. After all, he had the money and the willingness to take risks to bypass lengthy approval processes. He built his factory without a permit, knowing he would have to dismantle everything if necessary. The “Tesla way” is therefore considered the ultimate in German planning, as a pragmatic solution for situations that are actually untenable. But the public sector is not Tesla, and private property developers should also ask themselves why they should take the risk worth millions just because the state cannot provide an efficient process.
Buschmann wants to be more pragmatic in the court proceedings. That’s a good approach. Not every defect should prolong a major project. Increasing fault tolerance can help. Encouraging the courts to prioritize significant projects is less convincing. After all, administrative judges are not lacking in the recognition that large-scale projects have a certain urgency. What is missing are judges, uniform standards and clear guidelines.
The urgent procedure should also become more effective by holding up the planning process less frequently in the future. For the plaintiffs, above all the environmental organizations, the fast-track procedure is becoming less attractive. It is quite possible that this will still bring little. They can consider whether they would rather wait in peace for the main proceedings and work on their arguments. Only a few project sponsors would be brave enough to put millions on the table like Elon Musk when the outcome of the process is uncertain.
Protection of species versus energy transition
It’s not exactly going in seven-league boots like that. In early summer, the Federal Ministry of Economics and Technology celebrated its amendments to the law on the “environmentally compatible expansion of wind power”, which should make the big breakthrough possible. For this purpose, national standards should be set for species protection, so that each country no longer treats the red kite according to its own standards. The traffic light has also tightened the reins on the “LNG Acceleration Act”. The objection periods were shortened, the environmental impact assessment partially suspended. After all, this goes well beyond what has been usual in Germany up to now. Now the rules have to pass the practical test.
With this, the traffic light government is proving its clear will to change. Of course, that also helps on the long way. But the small adjustments will not solve the practical problems that courts and authorities face every day. The mountains of files for approval procedures are piling up on their desks, the legal and factual assessment of which is becoming increasingly difficult. In addition, there are countless complaints, sometimes from affected citizens, sometimes from less affected environmental organizations, even against projects that are essential for the future. The fact that every objection is meticulously examined in Germany does not make things any easier. All of that would have to be tackled. It’s just not all legal.
