The German Legal System of Ocean-borne Wind-Power Generation Regulation on location of facilities

Wind-generated power presently consumed in Germany accounts for only about 4% of all the energy consumed in the country; however, the German government has established a policy to supply one fourth of all energy from wind-generated power by 2015. As suitable land is no longer available for vast wind farms, the government is now working on locational regulations for the construction and operation of offshore wind farms. There are a number of regulations that should be instructive to Japan, such as a systematic licensing system for territorial waters free from the special act, consideration for the environment, and domestic legal regulations in the exclusive economic zone.

1. From land-based to offshore wind power generation

As is widely known, wind power generation is actively pursued in Germany. Though wind-generated power consumed presently in Germany accounts for only about 4% of all the energy consumed in the country, wind-generated power consumed in four waterfront provinces in the northern part of Germany accounts for a higher percentage, of from 19% to 26%.
Since the rush to construct wind power generators on land from the end of the 1980s, they have greatly increased in size and concentration with the advancement of technology. The new environmental problems brought on by this include adverse impacts on landscapes, nature conservation problems, wind noise, diffused reflections, and electromagnetic rays. As systematic regulations on land use are extremely strict in Germany in comparison with Japanese regulations, the lack of available land suitable for the construction of 30 to 40 wind generators has prompted serious consideration for the construction of offshore wind farms. Of 16 provinces, including three cities in Germany, only four provinces located on waterfronts are available for the construction of offshore wind farms. However, given the many wetland areas caused by the shallow waters of the North and Baltic Seas, the busy sea traffic, and a keen concern for the protection of marine life, consideration has been given to locating wind farms in coastal waters eight to ten kilometers offshore or in the 200-mile exclusive economic zone. However, the German government does not allow the construction and operation of wind power generators freely in these sea areas and it only approves of use that is organized according to German laws, a system more advanced than in Japan.

2. Legal system concerning mandatory purchase of wind power energy

The German government has adopted a policy rejecting nuclear energy under the coalition government of the Social Democratic Party (SPD) and the Green Party (Gr?ne Partei). Germany's amended Nuclear Energy Act in 2002 stipulates that nuclear power plants that are currently in operation may be operated for 35 years, the lifetime of nuclear power reactors, but no new nuclear power plants may be constructed. On the other hand, the government has now established a policy to supply one fourth of the total domestic demand for electricity from wind power energy by 2015, with a special emphasis on strengthening wind power generation. While there is some doubt whether this goal is actually attainable, the government has expanded the mandatory area for general energy suppliers purchasing wind power energy to the North and Baltic Seas in the exclusive economic zone under the Renewable Energy Law (EEG), which was enacted in 2000; at the same time, it has granted offshore wind power generators which would be built till the end of 2006 and located from three to two hundred nautical miles off the coastline the benefit of guaranteeing the purchase of wind power energy at a fixed rate of 17.9 pfennigs (9 cents) per kWh for nine years (five years for general wind power energy). The Power Input Act (StrEG), which was enacted in 1991, prior to the above-said Renewable Energy Law, faced frequent lawsuits due to a number of questions in relation to the constitution, the EU Law, and the Cartel Law, but the European Court of Justice ruled in March 2001 that the German domestic law did not conflict with the EU Law, so the legitimacy of mandatory purchase in relation to the EU Law is confirmed for the present.

3. Locational regulations concerning offshore areas within territorial waters

The German federal government and state governments do not have a special law that regulates the establishment of wind power generators in offshore areas within territorial waters. In general, the federal building code "Baugesetzbuch (BBauGB)," which also regulates general land use systematically in offshore areas within territorial waters in Germany, and which corresponds closely to Japan's City Planning Law, is applied. Under this law, it is understood in principle that coastal waters belong to the outer zone, "Aussenbereich," where all development is prohibited and (Ship & Ocean Newsletter No.73 August 20, 2003) only exceptional developments are allowed. However, as wind power generators are listed as an exceptional development (Article 35-1-6 of the law), procedures must be taken according to the Baugesetzbuch.
In concrete terms, "a retention zone," "a priority zone," or "a zone suitable for the use of renewal energy" for wind power generation is designated based on provincial plans, and a federal land improvement plan that precedes provincial plans. Based on this, it is necessary to designate "a wind park zone" or another zone according to land use plans (Bauleitplan) on the municipal level, and specify a fixed site. However, in contrast to wind farms on land, municipal functions cannot be applied to coastal waters, so subordinate provincial government agencies must establish plans. Specific licenses are also granted by provincial government agencies. However, regulations are not enforced centrally or comprehensively, and regulations are actually extremely complicated because coastal areas require approval, licenses, and special procedures according to the federal and provincial nature conservation laws, the federal water management law, the federal canal law, the environmental suitability assessment law, and other laws. Because of this, there is a need for the standardization and expedition of regulations in order to promote offshore wind power generation in coastal waters.

4. Regulations on offshore wind power generation in the exclusive economic zone

After the UN Convention on the Law of the Sea came into effect, the marine facilities ordinance called the "Seeanlagenverordnung" was issued in Germany as a domestic legal measure in 1997, based on the delegation of the federal maritime law (1994), and a license system was established for siting and operation of facilities (including structures and manmade objects) for producing energy by seawater, sea currents and wind power by the ordinance. The license is granted by the Federal Maritime and Hydrographic Agency (BSH). It stipulates that the license must be granted unless (1) wind power generators obstruct the operation and efficiency of facilities and aids for ship navigation, (2) wind power generators obstruct canals, airspaces, and the use of the sea for ship navigation, (3) wind power generators are likely to contaminate marine environments, or (4) wind power generators harm migrating birds. Other public and private benefits are considered under terms and conditions attached to the license. However, a measure has been taken to designate "special sea areas suitable for wind power generation" in the exclusive economic zone, to consolidate wind power generators in these sea areas in order to prevent their indiscriminate siting. In addition, other regulations in response to Article 60-3 to Article 60-5 of the UN Convention on the Law of the Sea are also included in the ordinance, such as the provision and publication of safe sea areas, information transmission, the removal of wind power generators after the expiration of the license, the duties of the operators of wind power generators, and administrative control.
The first license based on the marine facilities ordinance was granted (to a pilot project for 12 wind power generators 30 meters in water depth, located 45 kilometers from the shore line) in November 2000 after 26 months of deliberations. It is said that 40 projects are pending as of the end of the year.
German regulations on offshore wind power generation are extremely complicated due to the fact that regulations for coastal waters and the exclusive economic zone differ. However, there are a number of regulations that are instructive for Japan, including the systematic license system free from public tangible entity laws, consideration for the environment, and domestic legal regulations in the exclusive economic zone.