Constitutional complaint challenging absolute ban on wind turbines in woodland areas successful

Press Release No. 88/2022 of 10 November 2022

Order of 27 September 2022
1 BvR 2661/21

Wind turbines in woodland areas

In an order published today, the First Senate of the Federal Constitutional Court held that § 10(1) second sentence of the Thuringian Forest Act (Thüringer Waldgesetz – ThürWaldG) is incompatible with the Basic Law (Grundgesetz – GG) and is therefore void. § 10(1) second sentence ThürWaldG imposes a ban on changing the land use of woodland areas for the purposes of installing wind turbines, with no exceptions allowed. The provision therefore effectively prevents any wind turbines from being installed in woodland areas in Thuringia. This affects the complainants – who are owners of woodland – by interfering with their right to property under Art. 14(1) GG. Such interference is not justified because the provision at issue is formally unconstitutional. As a Land, the Free State of Thuringia does not have the power to enact provisions of this kind. § 10(1) second sentence ThürWaldG amounts to land-use law (Bodenrecht) – an area in which the Federation has already exercised its concurrent legislative powers in a preclusive manner, in particular by enacting a planning regime [in the Federal Building Code Code (Baugesetzbuch – BauGB)] that privileges the installation of wind turbines in ‘outlying areas’ (Außenbereich).

Legislators at the Land level have the power to enact legislation on matters relating to nature conservation and landscape management. As such, the Länder are permitted to place woodland areas under protection if, by virtue of their ecological function, location or beauty, such areas deserve and demand protection. Prior to the introduction of § 10(1) second sentence ThürWaldG, the Thuringian legislator had already enacted various provisions to this effect. What sets those provisions apart from § 10(1) second sentence ThürWaldG is that, going beyond the general need for preserving undeveloped natural space, they serve the more particular need to preserve and develop specific elements of nature and the landscape on account of their special function, location or beauty.

Facts of the case:

In order for infrastructure – including wind energy infrastructure – to be built in woodland areas in Thuringia, a public law permit for the required forest clearance and subsequent land-use change (conversion) must be obtained from the authorities. Pursuant to § 10(1) second sentence ThürWaldG, it is prohibited in Thuringia to change the land use of woodland for the purposes of installing wind turbines. This is an absolute ban: no exceptions are allowed and no possibilities for obtaining a permit are provided for. Around 34 percent of the total area of Thuringia is classified as woodland. A significant proportion of this consists of ‘forest wastelands’ – areas in which forestry use is either impossible or severely limited due to degradation resulting from adverse factors such as storms or pests. These damaged forest stands and cleared areas legally still qualify as ‘woodland’ and are subject to the ban under § 10(1) second sentence ThürWaldG prohibiting any land-use conversion for the purposes of installing wind turbines.

The complainants own woodland in Thuringia. Some of the forest stands located on their properties were exposed to considerable damage and had to be cleared, in particular due to pest infestation. The intention is to install and operate wind turbines on the properties. With their constitutional complaint, the complainants challenge the fact that the necessary conversion is prohibited under § 10(1) second sentence ThürWaldG. In particular, they claim that their right to property (Art. 14(1) GG) has been violated.

Key considerations of the Senate:

The constitutional complaint is admissible and well-founded.

I. § 10(1) second sentence ThürWaldG prohibits any change in the land use of woodland for the purposes of installing wind turbines. This provision, which constitutes a determination of the content and limits of property, interferes with the complainants’ right to property under Art. 14(1) GG.

II. The interference resulting from § 10(1) second sentence ThürWaldG is not justified under constitutional law because the provision is formally unconstitutional. As a Land, Thuringia does not have the power to adopt such legislation.

1. In establishing its allocation of legislative powers, the Basic Law does not explicitly mention forest law as a separate category. Nonetheless, the challenged statutory provision can be categorised as falling within the scope of the concurrent legislative powers listed in Art. 74(1) GG, with the categories mentioned under no. 18 (land-use law) and no. 29 (nature conservation and landscape management) being particularly relevant. Ultimately, § 10(1) second sentence ThürWaldG must be regarded as falling within the category of land-use law – an area in which the Federation has already exercised its power to legislate in an exhaustive manner, thereby precluding the Länder from enacting their own legislation.

2. a) Land-use law within the meaning of Art. 74(1) no. 18 GG is the zone-based organisation of land use by means of a public law regime whose direct subject matter is the regulation of land uses and functions; essentially, this refers to provisions that govern people’s legal relationship to the land by allocating specific land uses to particular zones and by differentiating between them. In particular, provisions of land-use law serve to coordinate and balance competing interests that arise between different land uses and functions. They aim to prevent specific conflicts over land use from arising, help to resolve any conflicts that do emerge, and seek to reconcile tensions surrounding land use. Land-use law thus governs the way in which areas of land may generally be used. By contrast, the scope of land-use law does not extend to provisions that specify the detailed aspects of land-use types that are in principle permissible – provisions aimed at averting the dangers typically associated with a particular use, for example. Rather, land-use law encompasses provisions that govern the ‘legal quality’ of land by generally regulating the way in which real property may be used or by excluding certain uses for a particular zone.

b) Nature conservation and landscape management – the area of legislative competence listed under Art. 74(1) no. 29 GG – encompasses both conservation in the form of averting dangers to nature and landscapes, and management in the form of active state intervention aimed at enhancing the condition of nature and landscapes. Overall, it covers legislative measures that serve to protect and promote wild species of plants and animals, their communities and the natural foundations upon which their existence depends, and that preserve landscapes or parts thereof under natural conditions. Legislation in this area is not limited to addressing the ecological aspects of nature and landscapes but extends to protection on account of aesthetic aspects.

Provisions of nature conservation and landscape management law can resemble land-use provisions if, like the latter, they prevent certain forms of land use in particular areas, possibly on a zonal basis. This is especially true if the provisions in question have an impact on the development potential of real property. Conversely, land-use law – which includes the rules governing the development potential of outlying areas – can include provisions whose deliberate aim is to keep such areas unbuilt in order to leave space for nature and landscapes. In order to be categorised as nature conservation and landscape management law as opposed to land-use law, statutory provisions must be more specifically aimed at protecting nature and landscapes as recognised legal interests. Rather than merely allocating particular land uses to certain zones, such provisions must address the characteristics or unique location of specific elements of nature and landscapes that are in particular need of protection or management due to some special function they serve, aesthetic functions included.

3. Art. 72(3) no. 2 GG provides that in the area of nature conservation and landscape management – unlike in the area of land-use law – the Länder are in principle entitled to enact laws at variance with federal legislation. This makes it necessary to determine which of the two areas of legislative competence – land-use law or nature conservation law – § 10(1) second sentence ThürWaldG belongs to. This determination is based on the direct subject matter, statutory purpose and effect of the provision at issue, with the objective normative content or subject matter being the most relevant criterion in ascertaining the area of legislative competence to which the provision is assigned. In the present case, the challenged provision must ultimately be regarded as falling within the scope of land-use law.

a) The direct subject matter of § 10(1) second sentence ThürWaldG is land use, which suggests that the provision falls within the category of land-use law. In typical fashion for land-use legislation, the challenged provision clarifies a question of land use by imposing a zone-based rule – in this case a prohibition that prevents woodland from being used to install wind turbines.

It is true that in terms of subject matter, it would not be entirely far-fetched to argue that the provision could also be regarded as falling within the scope of nature conservation and landscape management, given that it concerns woodland. However, rather than addressing a particular interest in protecting woodland areas in specific need of protection and management, the provision serves to protect all woodland areas without exception by banning wind turbines from being installed there. In terms of subject matter, it therefore amounts to a land-use provision aimed at keeping outlying areas unbuilt. To fall within the legislative competence for nature conservation and landscape management, zone-based provisions would have to go beyond addressing the general need for unbuilt space by serving a more specific need to preserve or manage particular elements of nature and landscapes.

b) The effect of the challenged provision likewise suggests that it falls within the category of land-use law. Its direct legal consequence is to prohibit changes in the land use of woodland areas for the purposes of installing wind turbines. The zone-based prohibition of certain land-use types is an instrument typically deployed to reconcile land-use-related tensions and is thus a typical form of land-use legislation. That § 10(1) second sentence ThürWaldG essentially amounts to land-use law is further confirmed by the fact that it overrides the effect of other land-use legislation, namely the clause in § 35(1) no. 5 BauGB privileging the installation of wind turbines in outlying areas. It does so by supplanting the zone-based privileging of wind turbines with a zone-based prohibition.

c) The purpose of the provision – as determined from its wording, systematic approach, contextual meaning and legislative history – likewise suggests that it falls within the category of land-use law.

aa) It is true that the challenged provision’s wording does not in itself allow any definitive conclusions to be drawn as to whether the provision is aimed at addressing matters related to land use or matters related to the protection of nature and the landscape. However, the provision’s systematic approach does suggest that it falls within the scope of land-use law and not within the scope of nature conservation and landscape management.

The particular area of legislative competence into which the provisions surrounding § 10(1) second sentence ThürWaldG fall is irrelevant in this respect. The challenged provision is not so closely interwoven with its surrounding legislation as to be automatically assigned to the same category. It stands on its own and generates a legal effect that is entirely independent of any other provisions, including the other clauses set forth in § 10 ThürWaldG. Particularly, in the provision at issue, the legislator has imposed a formally and substantively unique kind of land-use regime, with a legislative approach that distinguishes this type of land use from all other types of land-use regime.

In terms of systematic approach, the argument that the challenged provision’s objective purpose is to serve specific nature conservation and landscape management interests is contradicted above all by the fact that the Thuringian Forest Act already contains provisions in § 9 and § 9a allowing specific zone-based nature conservation and landscape management rules to be adopted for woodland areas. It is not clear what other specific nature conservation or landscape management interests are meant to be served by the prohibition of land-use conversion under § 10(1) second sentence ThürWaldG. From an objective viewpoint, it rather appears that the purpose of the challenged provision is to keep Thuringia’s entire woodland area free of wind turbines, regardless of any specific nature conservation and landscape management interests. This is essentially a purpose of land-use legislation.

bb) The provision’s contextual meaning also contradicts the argument that the objective purpose of § 10(1) second sentence ThürWaldG is to serve particular nature conservation and landscape management interests. By imposing a blanket ban on wind turbines in woodland areas, the provision takes no account of the characteristics or location of the individual section of woodland in question or any specific need for protection. Under the challenged provision, wind turbines are prevented from being installed in woodland areas even if the area in question has suffered massive ecological damage and possibly consists of nothing more than dead wood or cleared land – which is the case for a significant proportion of woodland in Thuringia. Furthermore, the provision only bans the conversion of land use for the purpose of wind energy development, while not prohibiting changes in land use for other development projects that may in principle be permissible in outlying areas under public planning and zoning laws, and that would have a similarly adverse impact on the functions attributed to woodland.

cc) The legislative materials and legislative history of § 10(1) second sentence ThürWaldG also appear to suggest that the provision’s objective purpose does not fall within the scope of nature conservation and landscape management. At least, they do not put forward any arguments that call into doubt the provision’s categorisation as land-use law.

4. In accordance with Art. 72(1) GG, the Länder may legislate on matters relating to land-use law so long as and to the extent that the Federation has not exercised this legislative power itself. At present, this means that the Länder do not have the power to enact legislation in this area. The Federation has already made exhaustive use of its power to legislate on land-use matters by enacting statutory provisions to that effect in the Federal Building Code.

a) § 35(1) no. 5 BauGB grants privileged treatment under planning law to the development of wind energy in outlying areas, making it much easier to obtain approval for such projects. This land-use regime is supplemented by § 35(3) third sentence BauGB, which allows certain areas to be specially designated as wind energy ‘concentration zones’ while enabling other areas to be kept free of wind turbines. There is nothing to indicate that the Federal Building Code was supposed to leave room for deviating Land legislation by allowing the Länder to enact land-use regimes prohibiting the installation of wind turbines in woodland areas altogether – which is exactly what § 10(1) second sentence ThürWaldG does.

It is true that § 249(3) first sentence BauGB does allow the Länder to enact legislation at variance with federal law in the form of provisions specifying the required distance between wind energy infrastructure and residential areas. However, even though § 10(1) second sentence ThürWaldG has a similar effect in terms of preventing wind turbines from being installed, it can clearly not be based on § 249(3) BauGB because rather than specifying minimum distances, it imposes a ban on the installation of wind turbines in respect of woodland areas.

b) Ultimately, § 9(3) no. 2 of the Federal Forest Act (Bundeswaldgesetz – BWaldG) does not provide any basis in federal law for a provision such as § 10(1) second sentence ThürWaldG either. It is true that under § 9(3) no. 2 BWaldG, the Länder are permitted to impose additional restrictions on the conversion of woodland and even to prohibit such conversion altogether, particularly where areas of protective and recreational woodland are concerned. However, the argument that this establishes a basis for overriding the Federal Building Code’s provisions granting privileged treatment to the installation of wind turbines in outlying areas is contradicted by both § 35(1) no. 5 BauGB and § 9 BWaldG itself.

aa) There is nothing in § 35(1) no. 5 BauGB to suggest that it would allow the privileging of wind energy to be overridden by provisions – enacted by Land legislators on the basis of § 9(3) no. 2 BWaldG – that impose blanket bans on wind turbines in woodland areas. Even on the face of it, it seems unlikely that the Federal Building Code was supposed to allow its land-use regime for the installation of wind turbines in outlying areas – as set out in considerable detail under § 35 and § 249 BauGB – to be overridden by forest law provisions that apply to all woodland. If an overriding mechanism of such broad scope had been envisaged, it would be expected that the federal legislator would include an explicit provision setting out this possibility in the Federal Building Code. From a substantive perspective, it also seems unlikely that the federal legislator intended the privileging of wind energy in the Federal Building Code to be overridden, given that the expansion of wind energy makes an indispensable contribution in practical terms towards fulfilling the constitutional obligation to take climate action – an obligation resulting from Art. 20a GG and from the duties of protection arising from fundamental rights. In order to meet the constitutionally decisive climate target of limiting the increase in global temperature to well below 2.0°C and preferably 1.5°C, considerable further efforts to reduce greenhouse gas emissions are required. The expansion of wind energy is one of the key components here. At the same time, the expansion of wind energy helps to secure the energy supply, which is currently at particular risk.

bb) The argument that § 9(3) no. 2 BWaldG allows the Länder to impose blanket bans that prevent woodland being converted to allow the installation of wind turbines is also contradicted by § 9 BWaldG itself. Here again, there is nothing in § 9(3) no. 2 BWaldG to indicate that the Länder are supposed to be able to use this provision as a basis for subjecting all woodland to a land-use regime that overrides the Federal Building Code’s detailed regime granting privileged treatment to the installation of wind turbines in outlying areas. Moreover, enabling Land legislators to enact blanket bans on land-use conversion would conflict with the underlying legislative concept of § 9 BWaldG. § 9 BWaldG establishes a framework for the balancing of interests, requiring specific interests under forestry law (forestry conservation and ecology, commercial forestry) to be reconciled with one another while also taking the interests of woodland owners into account. This framework sets out clearly defined and nuanced rules for the balancing of different interests, which the Länder are not permitted to supplant with blanket bans on land-use conversion.