date: august 2011

1. Planning law

  1. 1. Planning law
  2. 2. Act on Renewable Energy Sources (EEG 2009/2012)
  3. 3. Procedural law

Upon entering into force of the European Legislation Adjustment Law-Building (EAG-Bau) (Federal Law Gazette 2004, part I, No. 31, p. 1359) outside biomass plants may also be privileged under certain conditions according to the newly introduced Section 35 Paragraph 1 No. 6. As the operation of a biomass plant has to take place “in the scope” of an agricultural, silvicultural or horticultural purpose, the isolated descent of the biomass plant to third persons should be exercised with extreme caution – it can lead to a danger of the permission!

Another problem is the belated increase of the gas production for biogas plants in the undesignated outlying area. The privilege for biomass plants in the undesignated outlying area according to § 35 Section 1 Number 6 Building Code (BauGB) is capped to 550 kW of electrical output. When the operator of an approved biogas plant with an output of 500 kW decides to use still existing capacities of the fermenter, the basic question is whether – the electrical output of the block heat and power plant remains the same, there are no constructional changes – the increase of the gas production has a negative impact on the admissibility of the biogas plant as the cap of § 35 Section 1 Number 6 BauGB could be exceeded. According to the opinion of some people is for such an endeavor at least a building permission due to a change of use necessary. Some opinions are converting the at most privileged 500 kW to a maximal deployable gas amount. When this amount is exceeded due to an increase of the gas production, the plant is not longer permissible in a privileged way. Another opinion observes the wording of the privilege and consults the electrical output of the block heat and power plant. A final decision concerning this topic has not been reached yet. But at least the admissibility as “another development proposal” might be considered according to § 35 Section 2 BauGB, as the existing plant is not changed constructional but only the gas production is increased. The admissibility should always be assessed in the individual case before such a project is carried out.

2. Act on Renewable Energy Sources (EEG 2009/2012)

The economic basis for the production of electricity out of biomass is currently the Act on Renewable Energy Sources in the version of the last amendment of the year 2009. Based on this, the operators of biomass plants are receiving a legally guaranteed minimum remuneration for the feed-in of the produced electricity, which is composed of an output-related graded basic remuneration as well as different bonuses that can be claimed in a commutative way depending on the existence of the requirements (technology bonus, nawaro-bonus, combined heat and power bonus, bonus on the reduction of emissions).

After only 2 ½ years, which that amended law had been effective, there is a draft bill for the amendment of the EEG to the 01 January 2012. Based on the field report concerning the EEG (which had adjusted the electricity production out of biomass partly due to support and partly due to a complicated remuneration system), the Federal Environment Ministry suggests the total reorientation of the remuneration, that – according to the opinion of the author of the draft – shall simplify the system completely. In particular, almost all of the bonuses shall be omitted. It is envisioned that in the future the remuneration is carried out by an output-related graded basis remuneration of 14.3 cent per kilowatt-hour (up to 150 kW) and 6.0 cent per kilowatt-hour (up to 20 MW) as well as by a not output-related remuneration of the raw materials (depending on the classification of the particular input material into the classes for the remuneration of the raw materials I and II. It has to be pointed out that according to the current state of the draft, the use of liquid biomass can not be compensated any longer. Only for the purpose of an ignition and auxiliary firing liquid biomass can be used without effects on the remuneration. Furthermore, the claim on remuneration for biomass plants with an output of more than 500 kW shall be totally omitted with the beginning of the year 2014. They shall be relegated to the possibility of a direct marketing (in particular marketing premium).

In the connection with the cancellation of the combined heat and power bonus, the rates of the basic remuneration have been increased marginally within the draft bill but there will be the new requirement that a heat use of at least 60 % of the particular calendar year takes place within combined heat and power. In the course of the discussion concerning an overflow of the landscape with sweet corn, the claim on remuneration shall only exist according to the suggestion of the Federal Environment Ministry when at most 50 % by mass sweet corn and corn is used within the calendar year for biomass plants.

Independent from the total reformation of the remuneration system for biomass plants, the current available draft contains numerous readjustments or rather legal changes. For example: The system of direct marketing shall be extended and adequate financial stimulations shall be given within the scope of a marketing premium. The further development of the legislative procedure can be waited for full of expectations. The legislative procedure shall be concluded before the parliamentary summer break.

Largely unchanged compared to the EEG 2009 are the regulations concerning grid connection. In this context we would like to point out a current decision of the Higher Regional Court of Hamm of 03 May 2011. According to this and different to the previous jurisdiction, the grid connection point in the scope of the EEG 2009 has not to be determined based on a macroeconomic comparison of costs of different connection variants, but only by the shortest air-line distance to a grid, which is suitable concerning the voltage level. The grid operator is not allowed to refer to another grid connection point within its own grid that is farer away. In practise, this jurisdiction may lead to the fact that fewer grid connection costs will incurred for the plant operator.

The question concerning the definition of the term “plant” or rather the subsumption of different individual plants for remuneration according to § 19 EEG 2009 is still heavily discussed. According to the jurisdiction of the Higher Regional Court of Brandenburg, several combined heat and power plants shall be subsumed independently from § 19 section 1 EEG 2009 due to the requirements of § 3 number 1 EEG 2009, when they are connected by corporate attachments, for example by using the same fermenter. Compared to this, the “Clearingstelle EEG” argues that a subsumption of plants can only result from § 19 section 1 EEG 2009 and especially plants, which have been launched in a time interval of more than 12 months, have to be seen as separate plants also when they are fed with gas out of the same fermenter. Unfortunately, there is no jurisdiction of the higher courts concerning this problem. A clarifying change in the scope of the EEG-amendment 2012 is not envisioned at the moment.

3. (3) Procedural law

More and more operators of combined heating and power stations are interested in connecting them to microgas networks. In this case there has to be noted that there is a lot of uncertainty for grid operators concerning planning law on the one hand and a lot of things to observe on the other hand. There are a lot of matters which might require official approval such as environment, immission control, planning law as well as water resources. That is why it is not possible to make a general statement concerning the approval of microgas networks, a case-by-case evaluation is absolutely necessary. In the light of the enormous capital expenditures it is recommended to examine questions concerning approval previously.