1. Screening procedure instead of full assessment
A key element is the newly introduced screening procedure, which allows an initial assessment of a project's eligibility for approval. This procedure is intended to provide clarity at an early stage as to whether a project is located in an acceleration area and whether it is compatible with the strategic objectives. Based on the screening procedure, an environmental impact assessment and nature impact assessment may be omitted if no significant environmental impacts are anticipated. The authority must limit itself to a preliminary review in terms of the depth and scope of the assessment. The preliminary review is reminiscent of a determination procedure under the Environmental Impact Assessment Act. The question therefore remains as to whether the authorities will occasionally conduct a preliminary assessment that is as thorough as the current determination procedure under the EIA Act. If the preliminary assessment is (too) thorough, this will be at the expense of speed.
The screening procedure requires detailed preparation of the project documentation, which may also have to take mitigation and compensation measures into account.
2. Structuring and digitisation of procedures
The digitisation and structuring of procedures should also help to speed up the process.
In the current draft, the legislator focuses in particular on online or hybrid hearings and delivery by public announcement. In contrast, the provision stipulating that in municipalities that physically publish a municipal newspaper, an announcement must also be made in this newspaper seems like a relic.
In future, project applicants will be required to submit the documents for a project requiring approval or notification electronically. This eliminates the obligation for project applicants to provide multiple printed copies of their (usually extensive) documents.
Authorities will also be allowed to appoint external experts, but this measure presents two difficulties in practice: on the one hand, there were not enough experts in certain specialist areas. On the other hand, no expert may be appointed who has worked for the project applicant in the two years prior to their appointment if this could give rise to a conflict of interest. This reduces the pool of potential experts.
In addition, projects subject to EABG will have a concentration effect. This means that all federal and state requirements must be taken into account in an administrative procedure. This concept is already familiar from the EIA-Act (and, in part, from the Trade Act and the Waste Management Act) and actually makes things easier for project applicants, as it eliminates the need for coordination between the administrative procedures.
3. Classification of procedure types
The draft contains a classification of procedure types. It divides projects into those that require a standard procedure, a simplified procedure or a notification procedure, or are even exempt from approval.
The choice of procedure to be applied is determined in particular by the capacity of the plant, the space required and the type of project – whether it is a new construction, repowering or technical adaptation. The simplified procedure allows for accelerated approval, while the notification procedure for certain projects requires only a simple notification to the authority.
4. Appeal proceedings and right to continue operations
The draft contains restrictions on new objections or arguments that are raised for the first time in appeal proceedings. In addition, administrative courts must decide on appeals within six weeks. Although this will certainly speed up the process at first glance, it remains to be seen in practice whether the administrative courts will be able to issue high-quality decisions within this tight deadline or whether an increased number of these decisions will be overturned by the highest courts. Projects or parts thereof may already be constructed or operated before the approval notice becomes final if the project applicant complies with the conditions. However, it seems questionable whether investors or banks will be willing to provide funding if the approval notice is not yet legally binding.
5. Conclusion
The draft contains some sensible approaches to speeding up procedures. Nevertheless, it remains to be seen whether the ambitious deadlines and simplifications will deliver what they promise in practice. There is a risk that the burden of review will simply be shifted forward and that the acceleration will be merely formal.
