18 November 2010, 09:30 -
Provinces refuse to take on a steering role in onshore wind projects
publication: 22 November, source: Energeia energy news
The provinces rarely act in the steering roles that the Dutch Crisis and Recovery Act [Crisis- en herstelwet] assigns them in respect of onshore wind projects, according to CMS Derks Star Busmann partner Luurt Wildeboer, who addressed the Wind Energy 2010 conference in Rotterdam last Thursday. According to Wildeboer, this means that the accelerated construction of midsize wind farms envisaged by that Act will not be achieved. The attorney recommends that the applicability of the Act be made more mandatory.
The Crisis and Recover Act introduced in March of this year is the brainchild of former Prime Minister Jan Peter Balkenende. The shortening of various procedures was intended to provide a boost for projects that had been stagnating as a result of the economic crisis. The Act was to remain in its original form until 2014. The new Cabinet, however, has conferred permanent status on the Crisis and Recovery Act.
A substantial portion of the Act involves the authority granted to the provinces to push through plans for midsize onshore wind projects. The original plan involved wind farms of 15 to 100 MW, but the minimum threshold has since been lowered to 5 MW, which has vastly increased the provinces’ influence on onshore wind projects. In the same way as the National Government Coordination Regulation [Rijkscoördinatieregeling] permits the national government to seize control of planning and permits in respect of energy projects exceeding 100 MW if lower-level governmental agencies are obstructing the projects, an analogous authority has been conferred upon the provinces in respect of constructing midsize wind farms within their provincial borders.
According to Wildeboer, however, that authority is hardly ever exercised. The attorney believes that the provinces themselves are partly to blame for this. The provincial administrators are loathe to risk the good administrative relationship they have with their constituent municipalities. “Many provinces allow municipalities two years to develop a new zoning plan that would enable the construction of a wind farm. Only then are they prepared to come up with a provincial integration plan [Editor: which would, if necessary, overrule the zoning plan].” This, according to Wildeboer, is why the Act’s goals have gone unachieved.
At the same time, Wildeboer stated, the current Crisis and Recovery Act is not compulsory enough to impose a steering role on the provinces. “I think it would be wise to impose an obligation on every province to realise wind energy projects before a particular deadline. That mandate could take the form of a general administrative measure.” At the beginning of 2009, the provinces were relieved of just such an obligation after the provincial and national governments disagreed with regard to the wind energy goals to be achieved. Since then, the Spatial Perspective on Wind Energy [Ruimtelijk Perspectief Wind] plan has been worked on. This plan would express the provinces’ attempts to construct onshore wind farms in terms of MW, but there would be no hard and fast requirements.
According to attorney Jochem Spaans of Allen & Overy, a number of these types of laws have been enacted with the best of intentions, but without the intended degree of corresponding clarity and certainty. Spaans cites the new Dutch General Provisions of Environmental Law, known as the WABO [Wet algemene bepalingen omgevingsrecht] that entered into effect on 1 October of this year. The law enables all the permits necessary for constructing onshore wind farms to be combined into an environmental permit. The applicant can obtain this from a single issuing agency.
Generally speaking, Spaans is in favour of the WABO, although he also has a few concerns. “Not every case requires all of the permits, sometimes only a select few are required. The various situations can be dealt with under the WABO, but the procedures are rather complicated. That does not promote clarity.”
Spaans also questions the extent to which the new Act will result in shorter procedures. For example, the Dutch Environmental Protection Act [Wet milieubeheer] permitted objections to be addressed directly to the Council of State. In contrast, objections under the WABO will have to be submitted to the District Court in the first instance.
According to Spaans, another example of the law’s lack of clarity is the proposed amendment that would mandate an environmental-impact assessment [Mer-beoordelingsplicht] beginning in the spring of 2011. Currently, the threshold triggering the obligation to undergo an assessment is 15 MW or 10 turbines. Spaans: “That threshold will merely be a guideline. Other factors, such as the location of the proposed wind farm, also play a role in the decision of whether such an assessment is necessary.”
On 18 November 2010, Luurt Wildeboer of CMS Derks Star Busmann will be addressing the Wind Energy Conference about some of the legal aspects of wind energy, for example permits, the new opportunities offered by the economic crisis and recovery legislation, and the national government projects procedure.
The EU is likely to achieve its target of generating 20% of all energy from renewable sources by 2020. Before the start of this month, the input of the Netherlands was uncertain. Now, however, the country has a new Government with new plans that are certain to have an enormous impact, including on the energy sector.
This conference will cover:
· The new Government’s plans
· The energy mix of the future and the role of wind energy in that mix
· How to use and finance wind energy profitably
· Permits in the future
· The lessons learned by our colleagues in the Netherlands and abroad
Luurt Wildeboer’s lecture will be from 12 noon to 12.30 p.m.
To see the entire programme, click here.
If you would like to register for the conference, click here.