On 2 July 2020 the European Federation of Energy Law Associations (EFELA) held a webinar titled “EFELA’s Energy Law and Regulations Perspective: How EFELA’s 13 countries coped with the Coronavirus Pandemic. Matthias Lang participated with the German perspective on the topics of public participations in times of Coronavirus and the effects of Coronavirus on the Energy Transition.
Planning and Permit procedures of energy installations require participation of the affected public. Under European Law (e.g. the Aarhus Convention, die Industrial Emissions Directive and the Environmental Impact Assessment Directive) and German Law, effective public participation in administrative procedures is necessary to enable the public to express, and the decision-maker to take account of, opinions and concerns which may be relevant for the decision. Coronavirus related restrictions (e.g. minimum distance requirements, hygiene measures) complicate public participations or even render them impossible.
In Germany, there is a two-pronged standard for public participation: First, relevant documents have to be made available to the public (Auslegung) and second, comments from the public are discussed in a public hearing with physical presence of the public and the applicant (Erörterungstermin). Both involve physical contact which complicate or even prevent a public hearing in times of Coronavirus. With the new Planning Assurance Act (Planungssicherstellungsgesetz) the digitalisation of public participation has been advanced. Currently limited until 31 March 2021, it introduces digital participation opportunities for all environmental and infrastructure licensing procedures. Documents can be made available on the internet and public hearings may be waived or replaced by online consultations. While the Planning Assurance Act presents a further step towards a more digitalised and efficient planning and procedure, uncertainties remain about the procedural details.
Coronavirus also had its effects on the Energy Transition in Germany. The renewables policy, the weather and Coronavirus all add to the costs of renewables and lead to a significant increase of the EEG levy. The EEG surcharge may rise from 6.8 cents per kwh to a record high of 8.6 cents kwh in 2021. As this development is politically undesirable, from 2021 onwards, the EEG surcharge will be partially funded by tax transfers (cost estimate: 11 billion Euro). The aim is to reduce the EEG surcharge for consumers in 2021 to 6.5 cents/kwh and in 2021 to 6.0 cents/kwh.
While the European Court of Justice considered the EEG surcharge not to be a state aid, it is questionable whether this will be assessed differently when the EEG surcharge is partially tax funded.
Note: Dr. Matthias Lang begins his presentation at 1:25:05.