Windturbinebepalingen na inwerkingtreding Omgevingswet: doorpakken invoering landelijke normen nodig

The Environmental Act will come into effect on January 1, 2024. However, the introduction of new national standards for wind turbines is taking longer. The plan was for the rules to be ready in early 2024. This will not happen until mid-2024 at the earliest. According to a recently sent letter from the outgoing State Secretary and outgoing Minister for Climate and Energy Rob Jetten  to the House  , the reason is that “the integration into the system under the Environmental Act is more complicated than expected”. Since the temporary regulations for wind turbines will still have to be used for some time after the Environmental Act comes into effect, I see reason to discuss the location of the wind turbine standards below.

As far as the applicable regulations for wind turbines are concerned,   a lot has changed since the ruling of the Council of State of June 30, 2021. In this ruling it was ruled that the general rules for wind turbines in the Environmental Management Activities Decree and the Environmental Management Activities Regulation should be disregarded. For more information, see the blog  ‘delay in construction and expansion of wind farms due to Council of State ruling ‘. 

Current law

Renewed supervisory framework and bridging arrangement for wind farms until June 30, 2021

In accordance with the ruling of the Council of State of June 30, 2021, the  Activities Decree has  been amended in the sense that the standards contained therein only apply to facilities that consist of a maximum of two wind turbines. For (in short) wind farms licensed up to and including June 30, 2021, a bridging arrangement applies in, among other things, a new article of the Activities Decree that contains general environmental rules that offer the same environmental protection in terms of content as the general rules declared inapplicable. With the bridging arrangement, the competent authority once again has a clear framework for supervision and enforcement. The bridging arrangement is temporary (until July 1, 2025 at the latest) and also applies after the Environmental Act comes into effect. 

Permit and custom regulations for wind turbine parks after June 30, 2021

After June 30, 2021, wind turbine farms could only be licensed by attaching regulations to the environmental permit or through customization. The authority to attach environmental regulations to the environmental permit is included in the Environmental Law General Provisions Act (Wabo). For wind turbine farms that must be regarded as type C facilities within the meaning of the Activities Decree, an environmental permit as referred to in Article 2.1, first paragraph, under e, of the Wabo is required. Unlike type C establishments, the duty of care applies to establishments of type B on the basis of Article 2.1, first paragraph, of the Activities Decree. This duty of care can be made concrete on the basis of Article 2.1, fourth paragraph, of the Activities Decree by imposing tailor-made regulations.

Right after the Environmental Act comes into effect (January 1, 2024)

Finding the applicable regulations after the Environmental Act has come into effect has not yet become easier. Below is a schematic representation of where the various wind turbine regulations can be found.

Uncertainty, delay in new wind farms and uncertainty in existing wind farms

For a variety of practical reasons, the introduction of new national standards for wind turbines until at least mid-2024 is disappointing. Thus, the unclear situation described above with regard to the applicable standards will continue to apply for a longer period of time. Under the temporary arrangement, it is also difficult in many municipalities to get new projects off the ground based on a local environmental assessment when granting permits. So there is a delay for various new initiatives. Moreover, the future situation for existing wind farms is again uncertain. The temporary regulations (also) applicable after the Environmental Act comes into force include June 30, 2025 as an end date. There is therefore still some room for maneuver regarding the introduction of new national standards, but action is required.

The content of this blog is general in nature and no rights can be derived from it. If you have specific questions or would like advice, you can contact  Marije van der Hoek  ( marije.vanderhoek@cees.nl ) or one of our other specialists in the field of administrative and environmental law by telephone or e-mail without obligation.