March 15, 2021

Dahlem IV may go into operation!

On Friday, the OVG Münster overturned the decision of the VG Aachen of 18.12.2020.

Münster/Rees. The 7th senate of the OVG NRW has made an important decision in the long lasting legal dispute about the wind turbines of the DunoAir Windpark Dahlem IV and has annulled the decision of the VG Aachen of 18.12.2020. This means that the three wind turbines that have already been completed can be put into operation promptly and the two wind turbines that are still under construction can be completed.

In its reasoning, the OVG NRW points out that the decision of the VG Aachen should never have been negative, since with the entry into force of § 63 BImSchG on 10.12.2020, the condition precedent has retroactively ceased to apply even to proceedings already in progress: "Objection and action for avoidance by a third party against the approval of an onshore wind turbine with a total height of more than 50 meters have no suspensive effect."

Remarkable and basically also long overdue in the decision of the OVG NRW is the reference to "the public interest in a sufficient and secure supply of renewable energy also has special significance in accordance with the objectives of the Federal Nature Conservation Act pursuant to §1 para. 3 no. 4 BNatSchG. A predominance of species protection interests over the interests of public energy supply in the sense of the aforementioned goals of the energy turnaround... cannot be determined by the Senate." The energy turnaround has the importance that it urgently needs to be granted in view of the challenge that climate change is already bringing today and will bring in the near future! Energy turnaround and protection of species (here protection of the red kite) are not even irreconcilably opposite each other. On the one hand, climate protection is always also species protection and on the other hand, the risk of killing can be minimized if necessary by taking appropriate measures.

For the first time, a court in these proceedings is not disregarding the expert opinions of specialists, but is taking the assessments of two independent ornithologists into account in its decision. Until now, the court more or less ignored the years of very extensive research conducted in recent years.

"We welcome the decision of the OVG NRW, are overjoyed that we can finally feed clean electricity into the public grid after all these years. At the same time, however, we are also aware of the still long way to go until a final decision is reached. With regard to a future worth living for our children, we can only hope for a positive end", DunoAir owner Arjen Ploeg assesses.

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