Will the controversial Bavarian minimum clearance rule for wind turbines soon be history? The Greens and the SPD in Bavaria have been fighting in the opposition against 10H for years – with the new coalition agreement of the federal government, they could have come a decisive step closer to their goal. Because it says: “For onshore wind energy, two percent of the country’s area should be designated.” A passage that should be impossible to fulfill in Bavaria with 10H. In addition, the federal government wants to adapt the building code – a clause in it makes the Bavarian regulation possible in the first place.
The 10H rule means that the distance between a wind turbine and the nearest residential buildings must be at least ten times its height (10H). In the case of plants that are 200 meters high, that’s two kilometers. A distance that is difficult to reach in sprawling Bavaria. Municipalities can deviate from the regulation, but only with a clear decision by the municipal council. Accordingly, the expansion of wind power in the Free State came to an almost complete standstill. In the past three years, according to data from the wind energy agency, fewer than ten systems have been put into operation per year.
10H is possible with a so-called country opening clause. The federal government actually responsible allows the states to make their own regulations for wind energy with a corresponding paragraph in the building code. But the new federal government, consisting of the SPD, the Greens and the FDP, wants to promote the expansion of wind energy on land and further develop the two percent land target in the building code.
The CSU’s grip on it
For the Bavarian Greens co-chairman Thomas von Sarnowski, the matter is clear: “The 10H rule is history. We will finally enable the expansion of wind energy again after years of blockade, it says in black and white in the traffic light coalition agreement.” he tells the German Press Agency. “The CSU should better loosen their grip on the 10H rule.” The head of state speaks of clean and safe electricity from Bavaria at a fair price for citizens and the climate-neutral economy. According to him, the federal government wants to “initiate all necessary measures together with the federal states and municipalities in the first half of 2022 in order to expand renewables more quickly and to organize the necessary space.”
Legal experts assume, at least in part, that 10H could be overturned by the federal government. Not that easy, though. The state opening clause from 2014, through which the Bavarian special regulation is possible, has already been replaced by a new version. It also says that the state laws already in force would continue to apply. The Bavarian law can actually continue to run indefinitely, overturning it is “not done with the stroke of a pen” from the point of view of the Bavarian Municipal Council. Building law officer Matthias Simon speaks to the dpa of a “complex topic in which the federal government has to examine questions of competence and technical law”.
The community day considers the basic idea of the 10H rule to be correct. “It is an example of communal self-government in action,” says Simon. Because municipalities could definitely set exceptions to 10H and set up wind turbines closer to built-up areas. So the decision-making power lies on site. The lawyer admits, however, that little has been built since there was 10H in the Free State. In the event that the 10H rule in Bavaria were to be overturned, the local council demands appropriate transition periods, Simon speaks of about one year. The municipalities would have to be able to adjust to the new situation – after all, building should then be allowed where it was previously not possible.
Area target for all federal states in discussion
From the point of view of the SPD in the state parliament, in addition to the abolition of the state opening clause, there is a second possibility to get rid of 10H: to make the two percent land target also mandatory for the individual federal states. Then the state government must act. “Without wind turbines, we cannot provide people and industry in Bavaria with the urgently needed climate-neutral electricity at competitive prices,” says parliamentary group leader Florian von Brunn of the dpa. “The CSU blockade is driving up electricity prices and endangering jobs!” Von Brunn has been campaigning against 10H for a long time and is currently suing the Bavarian Constitutional Court.
The fact that the target area and the planned changes in the building code are even included in the coalition agreement of the Ampel government is also due to the SPD and the Greens in the Free State. During the coalition negotiations, Florian von Brunn emphatically advocated that the exceptions in the building code be deleted, writes the SPD parliamentary group. The Greens also speak of a close exchange with the federal government on the expansion of wind power.
And the Bavarian government? The CSU-led building ministry writes: If there is an amendment to the law at the federal level, and statements in the coalition agreement go in this direction, “then the state must first wait to see what options the state legislation is still open to afterwards.”
Wind turbines in state forests
Environment Minister Thorsten Glauber (Free Voters) added: “We also need wind power if we want to be successful in climate protection. If you want to expand wind power, you have to deal with the 10-H regulation.” Glauber and Minister of Economic Affairs Hubert Aiwanger (Free Voters) had recently advertised wind turbines in Bavaria’s forests.
In May, the coalition was still hesitating when Glauber wanted to tip 10H. Prime Minister Markus Söder (CSU) had always defended the norm so far. In a government declaration for more climate protection in the summer, Söder announced that he would allow exceptions – only 1000 meters away, for example in state forests. At least that is not enough for the Greens and the SPD – and as part of the new federal government, they could have more leverage here.
(sht)