Environment, planning and permitting

In the 2025 coalition agreement, the Christian Democratic Union (CDU)/Christian Social Union (CSU) and the Social Democratic Party (SPD) intend to further simplify and accelerate planning and permit procedures. In doing so they are building on the agenda of the previous government. This is a truly cross-cutting issue that is important for various fields – especially for industrial plants and infrastructure projects, but also for renewable energies and climate protection projects. Acceleration potentials shall be leveraged not only in national law, but also at the European level, especially in the area of environmental protection and the right of collective action.

Simplifications and accelerations in procedural law

The former coalition had already set itself acceleration of planning and permit procedures as a central project in its coalition agreement in 2021 and had already implemented numerous concrete measures, which related primarily to the expansion of renewable energies on the one hand, and to the expansion of the gas infrastructure that had become necessary due to the gas supply crisis (e.g. with the LNG Acceleration Act (LNG-Beschleunigungsgesetz, LNGG)) on the other. The new government wants to build on this and, in particular, introduce a uniform procedural law for infrastructure projects ("one-for-many"), which shall also take inspiration from the LNGG (lines 685 et seq., 1937 et seq.). The LNGG, which will expire in mid-2025, contains numerous far-reaching exceptions to the usual procedures, in particular shortened participation periods and a waiver of the environmental impact assessment (EIA). However, some of these simplifications were permissible under EU law mainly due to the gas supply crisis, so that their permanent implementation for other projects would have to be further justified and could possibly necessitate changes at European level.

Accordingly, the new government has set itself the goal of creating such European exemptions based on the model of the so-called EU Emergency Regulation, which concerned the accelerated expansion of the use of renewable energies and suspended the EIA obligation for these projects under certain conditions (lines 1937 et seq.). However, this requires coordination at European level, in particular the support of the Commission and a sufficient number of other Member States. With regard to the EIA, the coalition also wants to use "leeway permissible under EU law" (lines 1348 et seq., 2127 et seq.). Among other things, threshold values for projects subject to an EIA obligation shall be raised and a suspension of the preliminary EIA assessment for modification projects is to be examined. In fact, the EU legal basis does offer the Member States some leeway in determining the specific projects subject to an EIA. However, "exhausting" such possibilities always carries a certain risk that the ECJ could consider the limits to have been exceeded in the event of a court referral or infringement proceedings.

Within the framework of procedural law, hearings are also to be made optional (as is already largely the case today), and the participation procedure is to be limited to a "one-time participation" (lines 689 et seq.). In addition, as has already been done in the Offshore Wind Energy Act (Windenergie-auf-See-Gesetz, WindSeeG) for the expansion of the use of offshore wind energy, for example, the so-called planning permit is to become the standard procedure, which, in deviation from the planning approval decision currently required as a rule, does not require a comprehensive procedure with formalised public participation (lines 694 et seq., 2130 et seq.). Plans for the reintroduction of the so-called material preclusion, i.e. the exclusion of factual arguments for court proceedings that have not already been asserted in the public participation during the permitting procedure, appear ambitious (lines 2119 et seq.). The ECJ had declared this concept, which was previously anchored in German procedural law, to be largely contrary to EU law, so that an amendment of EU law should also be necessary in this respect.

Finally, the coalition intends to introduce the so-called assumption of approval as a standard (lines 342 et seq., 2115 et seq.). As a result, a required permit would be deemed to have been granted if the licensing authority does not reject the corresponding application within a certain period of time. It remains to be seen whether this construction, which has so far led a rather niche existence and is often used in simplified procedures at state level (especially for building permits) can be transferred to more complex permits, which are usually only granted after comprehensive examinations and with extensive ancillary provisions. In this respect, relevant EU law requirements would also have to be observed.

Easements in substantive law

The new government also wants to introduce various easements and simplifications in substantive law. Among other things, a binding cut-off date regulation is to be created, according to which the factual and legal situation at the time the permit is granted is no longer to be decisive, but the circumstances applicable at the earliest possible point in the planning process (lines 691 et seq.). The previous government had already introduced a corresponding regulation in Section 10 para. sentence 4 of the Federal Emission Control Act (Bundes-Immissionsschutzgesetz, BImSchG) for renewable energy and hydrogen plants. Such a regulation would actually give project developers additional certainty that an applied project can also be approved (without extensive adjustments). However, such a cut-off date regulation must be carefully balanced and justified in order to avoid any conflicts with EU law requirements.

In general, the national implementations of Union law shall be implemented as lean as possible 1:1 (specifically the amended Industrial Emissions Directive and the EU Air Quality Directive are named here, lines 148, 1201 et seq.).

The statutorily established "overriding public interest", which was essentially developed by the previous government mainly for renewable energy and grid expansion projects and has so far been well accepted in administrative practice and case law, shall be extended to other subject areas (lines 689 et seq., 1005 et seq., 1086 et seq., 1935 et seq., 2211 et seq., 4211 et seq.). These include federal spatial planning law, energy storage, CCS/CCU plants and pipelines (see also Energy and climate politics), mobile communications and fibre optic expansion as well as the infrastructure projects financed from the special fund that the new coalition has already established in the Basic Law before the start of the coalition negotiations, together with the Green Party (which exactly these will be is to be determined in more detail), possibly also other large infrastructure projects outside the special fund, and the concerns and infrastructure measures for overall defence. Such a statutory standardisation generally leads to the simplification of the necessary withing of interests in favour of relevant projects and can thus actually have an accelerating effect. In view of the expected considerable expansion of this instrument, it will be interesting to see how conflicts between different projects of "overriding public interest" will be dealt with.

Restriction of information, participation and legal action rights

A further simplification shall be achieved by reforming the right of collective action, which currently allows recognised environmental associations to challenge certain permit decisions without having to assert that they are affected themselves. This right of action shall now be lowered "to the minimum level under European law" and a focus on direct affectedness shall be sought (lines 1353 et seq., 2124 et seq.). In addition, the Environmental Information Act (Umwelt-Informationsgesetz, UIG) shall be slimmed down.

A restriction of the right of collective action can indeed lead to a faster creation of legal certainty and thus potentially to an acceleration of the implementation of a project. However, it must be taken into account that the public's rights to information, participation and legal action in environmental matters are not only based on EU law, but ultimately go back to the international Aarhus Convention, to which both the Federal Republic of Germany and the EU are signatories. It is precisely the rights of collective action established therein that have already led to several rulings by the ECJ and resulting amendments or extensions of the German implementation of the Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz, UmwRG) in the past. A new restriction of the rights of collective action without adapting the foundations in EU and possibly also international law is therefore likely to be possible only to a very limited extent. The coalition also seems to have recognised this, as it also announces that it wants to work towards a "further international reduction" through initiatives of the federal government (lines 2125 et seq.).

Chemicals law

The coalition wants to make Germany the world's most innovative chemical, pharmaceutical, and biotechnology location (lines 177 et seq., see also Health policy). For this purpose, a so-called Chemistry Agenda 2045 is to be developed. In addition, the new government rejects a "total ban on groups of substances" and wants to advocate for a "balanced European regulatory framework with a risk-based approach to chemicals policy". These announcements are to be seen against the background of European chemicals legislation, the central set of which is the so-called REACH Regulation. On the basis of this regulation, a restriction proposal has been in the legislative process for some time, which is intended to completely ban the use of the substance group of per- and polyfluorinated alkyl substances (PFAS), which has recently received increased attention from both the authorities and the public, and to allow only narrowly defined exceptions. The coalition agreement suggests that the new federal government will not agree to the proposal – should the Commission adopt it in its current form (lines 1210 et seq.). Whether the substance ban can be stopped by this depends on whether enough other Member States join the position of the German government. Beyond this, the Commission is in principle also planning a further reform of the REACH Regulation and had considered, e.g., the introduction of a so-called generic risk approach, which would have facilitated potentially far-reaching substance bans on the basis of general risk assessments. The coalition now also seems to be opposing this. However, after the last European elections, the new Commission has not yet taken a position on whether this approach should be pursued at all.