Why planned changes to the Air Traffic Act are causing uncertainty in the wind energy sector

A recently presented draft bill is currently causing uncertainty in the wind energy sector. It concerns the planned Bundeswehr Planning and Procurement Acceleration Act (BwPBBG), with which the German government intends to facilitate and accelerate planning and procurement for the German armed forces. However, the intended changes to the Aviation Act could have serious consequences for wind energy projects - particularly for repowering.

The draft bill provides for a significant expansion of existing protected areas: In future, not only air traffic control facilities, but also stationary military facilities for air defence (these are essentially air defence radars) are to be protected by a construction ban under the Air Traffic Act (Section 18a LuftVG). This ban should already apply if the facilities can be disturbed - an undefined formulation that gives the Bundeswehr a very broad scope for judgement. Any expert opinions are expressly no longer envisaged.

To date, military air defence radars have been protected as a public concern under the German Building Code (Section 35 (3) No. 8 BauGB). In the approval process, they are therefore reviewed on a case-by-case basis, with the approval authority having the final say. In practice, however, the German Armed Forces already want to check beyond the existing, rigid protection areas under the Protection Areas Act within a radius of 50 km around the radar system for air defence. If the planned law comes into force in this way, it could also extend this extended area to a fixed protection zone in future. In addition, the Bundeswehr would have a de facto right of veto under Section 18a LuftVG: according to the prevailing legal opinion, its negative opinion would be binding. The authority would have to reject the application. Legal protection would only be possible indirectly and with considerable delay.

Which areas could be affected in the future remains unclear and is ultimately left to the judgement of the Bundeswehr. Operators and developers of wind energy projects would be left behind: Their investment decisions would be even more difficult to calculate.

In addition, the Bundeswehr is to be able to establish or modify military airfields in future without regular approval procedures if it deems this necessary for the purposes of national and alliance defence. There is no provision for an external review of this decision; the reasons merely have to be documented internally. Where previously an - albeit complex - weighing-up process took place with all stakeholders, in future a few internal decisions by the Bundeswehr could be enough to put the brakes on entire projects.

For the wind energy industry, this change of course is in clear contradiction to the energy policy goals: While the expansion of renewable energies is to be accelerated, this „blue licence“ for the German Armed Forces could effectively block large areas for wind energy in the future.

However, the conflict is not entirely new: a similar attempt to include air defence radar systems in the material construction ban failed back in 2023 after intense debate in the Bundestag. A study commissioned as a result is still not available today.

The wind energy sector is now pressing for the draft to be revised. In any case, comprehensive exemptions for repowering as well as for wind energy and acceleration areas should be provided for. Otherwise, wind energy sites that have been recognised for years and the current positive planning in many locations could be impaired.

In principle, military concerns and energy security should not be artificially played off against each other. The Bavarian Armed Forces Act could serve as a model here: For state planning, both interests are of paramount public interest and are given equal priority. 

It remains to be seen whether the planned regulations will actually be adopted. The draft is only at the beginning of the legislative process. The Federal Ministry for the Environment, Climate Protection, Nature Conservation and Nuclear Safety has not yet played a leading role.