Berlin, 12 March 2021. In a ruling handed down on 11 March 2021, Münster Superior Administrative Court dismissed an appeal by the environmental association NABU in a case involving the Butendiek Offshore Wind Farm. NABU wanted to oblige the Bundesamt für Naturschutz (BfN) to order the operator of the wind farm to take measures to rectify alleged environmental damage.
The wind farm was approved by the German Federal Maritime and Hydrographic Agency in 2002 and built in the North Sea in 2014/2015 with a total investment of about EUR 1.3 billion. The 80 wind turbines are located more than 30 km west of Sylt within the “Eastern German Bight” European bird sanctuary, which was designated in 2005.
Like the Cologne Administrative Court in the first court instance before it, the Superior Administrative Court confirmed the decisions with which the BfN had refused to intervene against the approved wind farm on the basis of law governing environmental damage. The Superior Administrative Court underscored the specific requirements applying to the initiation of environmental damage proceedings: Within the scope of its duty to cooperate and to present arguments and submit facts, the applicant must credibly demonstrate that environmental damage has occurred. Since such facts were already lacking, in the opinion of the High Court, the BfN had no duty to act.
Outside the environmental damage proceedings, the BfN has already taken extensive measures to the benefit of the marine environment which are aimed precisely at protecting birds in the vicinity of offshore wind farms. These include requirements for operators to limit the use of ships for operations in the wind farm, a planned expansion of the bird sanctuary with a provisional safeguarding of the areas (already in effect at present), to exclude further construction activity, and comprehensive monitoring obligations on the part of the operator. The measures ensure that, on the one hand, the expansion of offshore wind energy, which is a key component of the energy transition and thus climate protection efforts, is not unduly impaired, while, on the other hand, the equally important concerns of nature conservation are taken into account.
Acting as counsel for the defendant, BfN, in these landmark proceedings is Dr Frank Fellenberg, LL.M. (Cambridge) and Kathrin Dingemann from the Redeker Sellner Dahs law firm.
