The last thing the beleaguered German offshore sector needs is a nature-protection non-governmental organisation (NGO) threatening to block a construction permit after expensive installation logistics have been organised and work is poised to start. But that could happen to the 288MW Butendiek project.
Talks are onging, but there are other projects and extensions that are also looking wobbly, not only for environmental reasons but because requirements set by a new regulation may have been overlooked.
The Butendiek offshore wind farm conflict erupted in February, when nature-protection organisation Nabu (Naturschutzbund Deutschland) released a report by the Institute for Nature Protection and Nature Protection Law. The report sharply criticised the permits for, in particular, Butendiek, but also other German North Sea offshore wind projects - Dan Tysk, Amrumbank West and Borkum Riffgrund II.
It said nature protection issues had not been taken into account and the projects should never have been granted permits by the responsible authority, the BSH, the Federal Maritime and Hydrographic Agency.
Installation work on Dan Tysk and Amrumbank West has already begun. Borkum Riffgrund 2 was put on hold by owner Dong Energy in October 2012.
Butendiek lies in the Sylter Aussenriff flora-fauna habitat (FFH) protection area and in the EU bird protection area Ostliche Deutsche Bucht. The FFH region is, among other aspects, an important living and breeding area for porpoises in the North Sea. Large numbers of mothers and calves will be subjected to scare technology to get them out of the area when foundation ramming takes place, scheduled for May 2014.
Precedent
Birds subjected to negative effects include the blackand red-throated divers. The latter also played a role in the UK's London Array offshore project extension being abandoned in February 2014. The developers decided not to wait for the outcome of a three-year study on how additional turbines would affect the red-throated divers that wintered in that part of the Thames Estuary, a designated environmental special protection area.
Nabu describes the go-ahead for the Butendiek project as a "grave sin" in an inadequate strategy for German offshore wind. "It casts a negative light on the whole offshore wind sector," says Leif Miller, Nabu managing director. The warning signs were there in 2002, when Nabu tried to stop the Butendiek development, but federal nature protection law at that time prevented appeals by environmental organisations in connection with the German exclusive economic zone of the North Sea.
The BSH rejects Nabu criticism, saying the Butendiek permit was granted in line with the laws of the time. Even though the FFH and bird protection areas did not exist at that point, strict conditions were applied for example on protection against noise during the ramming of turbine foundations into the sea bed, it said.
Butendiesk developer Wpd and Siemens, which is supplying the turbines and some of the finance, stress that environmental protection and climate-friendly energy supply are central aims, pointing out that an environmental impact assessment was accepted, and the project permit extended several times, most recently on 7 February 2011. Modern techniques will reduce noise emissions during monopile ramming by up to 20 decibels, they said in a joint statement.
Nabu counters that the legal expertise leaves no choice but to take action. "If such serious damage to nature is tacitly accepted, there is no option but going to court," says Miller. "This is last resort. We hope the threatening environmental and nature damage can be avoided and the problems solved in a dialogue with the parties involved," adds Kim Cornelius Detloff, Nabu's marine expert.
A similar case in connection with the Nordergrunde offshore wind project was resolved through dialogue in March 2011. Environment organisation Bund and the conservation organisation WWF withdrew an appeal against a preliminary permit brought on grounds of bird protection after developer Energiekontor agreed to pay for compensatory protection measures - which led to accusations of the NGOs wanting to enrich their own financial resources. "Compensation is not our aim. Nature protection is our aim," stresses Detloff.
There was little sign of fruitful dialogue over Butendiek by the end of February, although talks were still ongoing with the relevant authorities and agencies and politicians. Possible openings for agreement include postponing installation until after the porpoise mating season from May to August. "If no solution is found by end-April, the study provides legal recommendations on how we should proceed," Detloff said.
Indeed, among the study conclusions, the EU environment liability regulation on prevention and remedying of environmental damage (in force in 2004) and the corresponding German Environmental Damages Act (2007) are perhaps the most powerful instruments, although not yet tested in the courts.
If considerable damage occurs or threatens to occur in connection with species and habitats protected by European law, and a government body such as the German Federal Agency for Nature Conservation does not act, the Environmental Damages Act could be used to block a valid construction permit, the study indicates.
Nabu could appeal to the relevant administrative court in Cologne (near its base in Bonn) and potentially effect an interlocutory injunction to stop installation work at Butendiek, pending a final judgment on the case.
More projects under threat
Offshore projects requiring extensions to their building permits are also precarious in the wake of the offshore installation regulations that took effect on 31 January 2012 without transition arrangements for existing permits. Since then, all new offshore wind projects, as well as permit extensions, should be subject to a full spatial-planning procedure and application of all current laws and regulations.
"Under these new rules, if the planning procedures haven't started by the deadline on which the extension expires, the project permit is annulled," says Jochen Schumacher, environmental law expert at the Institute for Nature Protection and Nature Protection Law.
This raises doubts about the validity of the permit extension for Delta Nordsee 1 granted in May 2012, for EnBW Hohe See in August 2012, and for Gode Wind 2 and 4 in July 2013. And procedures need to begin in time for the Veja Mate extension expiry at the end of June 2014, Deutsche Bucht extention expiry end December 2014, and Borkum Riffgrund 2 at end December 2015.
Although no potential discrepancies have been publicly discussed so far, the threat of legal action on offshore construction permits and the accompanying negative press comes on top of German uncertainty about future offshore wind support, caps on what offshore capacity can be installed and insolvency of offshore developers and component suppliers.
After the huge effort required to get the German offshore wind industry up and running, many in the industry are upset that environmental organisations are putting a spanner in the works. Surely offshore wind is a better choice than nuclear or fossil-fuel generation, considering nature and environmental damage resulting from uranium mining and nuclear disasters like that at Fukushima, or polluting emissions from coal and lignite power stations?
But for others, offshore wind is an industrial development in a natural environment that should be treated no differently to, say, the nearly complete 1.1GW coal-power station at Datteln, which was brought to a grinding halt in 2009 by the higher administrative court of the state of North Rhine Westfalia on permitting and environment grounds. Five years later it is still not clear whether the whole permitting process can begin again, let alone whether the coal plant will ever operate.
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