BImSchG amendment to speed up approval procedures

On June 6, 2024, the Bundestag passed the amendment to the Federal Immission Control Act (BImSchG). The law also passed the Bundesrat on June 14. The law is intended to create faster and less bureaucratic procedures and thus speed up approval processes. Wind turbines and other industrial plants (e.g. plants for recycling waste) should be able to be built more quickly in this way.

Early start should no longer depend on forecast decision

In future, plant operators should be able to start construction even faster. Construction prior to the granting of approval is not permitted in accordance with. § Section 8a BImSchG is already possible, but only if a forecast by the authority shows that a decision in favor of the applicant can be expected. This requirement is now waived at the request of the applicant in the case of a permit for an installation on an existing site and in the case of a modification permit. However, it must be ensured that the provisional measures applied for are not expected to have any harmful effects on the environment, including nature conservation and water law issues.

New version of § 10 BImSchG (approval procedure)

The approval procedure acc. § 10 BImSchG is to be digitized. Among other things, licensing authorities will be able to require electronic applications in future. For people without Internet access, however, there should continue to be another, easily accessible access option. In such cases, documents could be submitted on a standard electronic storage medium, for example.

In order to adequately protect trade and business secrets, project sponsors are granted a right of objection in accordance with the provisions of the Planning Security Act (PlanSiG). In contrast to the regulation in the PlanSiG, however, the authority cannot suspend the procedure until an interpretation has taken place. Rather, the new regulation stipulates that the authority must choose a different form of publication in this case. A corresponding regulation will also apply to the approval procedure for hazardous incidents in accordance with Section 23b BImSchG.

The procedure for involving the authorities will also be further streamlined and accelerated for all installations that fall within the scope of the BImSchG. If an authority to be involved has not submitted a statement within the deadline of one month, it will in future be assumed that it does not wish to comment unless it has requested an extension. The option to extend the deadline will not be available for all installations. In the case of approval procedures for installations for the use of renewable energies or for the production of hydrogen from renewable energies, an extension of the comment period is excluded. If the authority to be involved fails to issue a statement, the competent licensing authority can in future either obtain an expert opinion at the expense of the authority to be involved or issue a statement itself.

Another new feature is the option of holding the consultation meeting in the form of an online consultation or by video or telephone conference, in line with the PlanSiG.

Amendment to the 9th BImSchV (Ordinance on the Approval Procedure)

The legislator is also shortening the processing time for the authorities. To this end, the ordinance on the approval procedure is being amended. In future, the authority must check the permit documents for completeness within one month. In cases in which the authority does not request the applicant to supplement the application, completeness must then be assumed with regard to the legal consequence of the start of the deadline. In the event that the documents are not yet complete in the opinion of the authority, the time limit begins to run upon receipt of the documents requested by the authority for the first time.

Conclusion and outlook

The draft law is a further opportunity to relieve the burden on industry in the construction of new plants and the expansion and conversion of existing plants, thus making an important contribution to strengthening Germany as a business location. The acceleration measures must be expanded further. Particular attention must also be paid to the forthcoming amendment to the Industrial Emissions Directive and its transposition into national law to ensure that the urgently needed reduction in acceleration and bureaucracy continues to exist so that the transformation processes towards climate neutrality can succeed.