Faculty of Law

Academic Year 2016-17

Exam Session [1]

Wind energy in the EU: balancing wind farm siting and

nature conservation

LLM Paper

by Vincent De Prez

Student number: 01103349

Promoter: An Cliquet

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Table of contents

1. Introduction p.2

2. Climate change and its international agreements p.5 2.1 A global situation p.5

2.2 International agreements p.6

3. Climate change initiatives in the EU:

the EU 2020 objectives p.9 3.1 Renewable energy initiatives p.9

3.2 Directive 2009/28/EC p.11

3.3 Varying targets p.12

3.4 Internal energy markets p.12

3.5 Objectives of the EU’s energy package p.14

4. Energy law and energy markets p.16 4.1 Alternative energy markets p.16

4.2 The grid p.17

4.3 Problem of siting left to the Member States p.20

5. Wind farm impact on biodiversity p.22 5.1 Onshore wind farm impact on biodiversity p.22

5.2 Offshore wind farm impact on biodiversity p.24

6. EU nature Directives p.27 6.1 Environmental Impact Assessment,

Strategic Environmental Assessment,

Cumulative Impact Assessment p.27

6.2 Birds and Habitats Directives p.32

6.3 Natura 2000 network p.34

7. Making the balance p.37

8. Conclusion p.43

References p.45

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1. Introduction

Anthropogenic global warming demands for green energy alternatives to the fossil fuels that

mankind has been excessively using since the germination of the industrial revolution. In order

to respond to climate change the European Union (EU) is taking legislative initiatives to

enhance the transition towards a low carbon economy, both in its Member States as in the EU

as a whole. The EU is playing an important leading role on the international stage in

acknowledging the emerging climate change. It has recognized the need to adjust its economic

policy to this changing situation, and to act accordingly. The effectiveness and thoroughness of

this policy, however, are subject to a lot of debate.

The EU’s climate and energy targets to be reached by 2020 were made biding for its Member

States with the renewable energy Directive 2009/28/EC.1 With this Directive the overall policy

for the promotion of renewable energy was established, and varying targets were set for the

Member States.2 Member States have to invest in alternative energy development in order to be

able to increase the share of electricity coming from renewables in their total electricity

consumption. One of the pathways to accomplish this is by investing in wind energy.

The increasing use of wind energy, and the construction and operation of wind farms, has its

effects on the environment. In the first place this is a positive effect by mitigating against

climate change, but there are also some secondary undesired consequences related to wind farm

sites. Although wind energy has the advantage of preventing further CO2 emissions, which is

beneficial at the global level, wind farms also have some negative side effects at the local level.

The negative aspects of wind farms can broadly be divided into two categories.

Firstly, the operation of wind farms can have negative effects on humans. Wind energy

installations can affect people through a number of factors. The most reported aspects that can

be negatively perceived by humans are the noise generated by the rotating turbine blades, light

reflection and flickering, or modification of the visual attractiveness of the landscape (Knopper

& Ollson, 2011; Nissenbaum, Aramini, & Hanning, 2012; Salt & Kaltenbach, 2011). These

characteristics of wind farms can cause some annoyance to people, but the actual effects on

human health has to be studied more thoroughly. An often studied societal phenomenon is the

‘not in my back yard’ principle (Devine‐Wright, 2005; Krohn & Damborg, 1999; Wolsink,

1 Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the

use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and

2003/30/EC [2009] OJ L140 (Renewable Energy Directive). 2 Recitals 8 and 13 Renewable Energy Directive.

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2000). According to this phenomenon, there is an overall strong public support for wind power,

but people resist actual wind farm projects in their own geographical vicinity (Wolsink, 2000).

When the people living nearby wind installations experience these negative public attitudes,

they can be put in a dilemma. They have to make a trade-off between their potential local

disadvantage they might perceive, and the benefits for the larger society of minimizing CO2

emissions and mitigating against climate change through alternative energy generation

(Warren, Lumsden, O'Dowd, & Birnie, 2005). Interestingly, resulting therefrom is the choice

that needs to be made between benefits and potential disadvantages. In other words, this

concerns a contrasting of priority between local and global concerns. The contrasting of benefits

and disadvantages that relate to the siting of wind farms is a central issue in this paper. The

focus, however, is not on the societal impacts of wind farms, as these are not covered by the

scope of this paper. Rather, the focus is on yet another aspect through which an impact from

wind farms can be observed. Here the next category comes into play.

Secondly, wind farms have some consequential effects on biodiversity. Wind energy

installations can impact biodiversity in a variety of ways (Hötker, Thomsen, & Köster, 2006;

Kuvlesky Jr et al., 2007). Most studied in this field are the effects on avian species, such as

birds and bats (Larsen & Guillemette, 2007; Masden et al., 2009; Voigt, Popa-Lisseanu,

Niermann, & Kramer-Schadt, 2012). The four main effects of wind farms on birds are

collisions, habitat loss, and displacement due to disturbance (Drewitt & Langston, 2006;

Fielding, Whitfield, & McLeod, 2006; Fox, Desholm, Kahlert, Christensen, & Krag Petersen,

2006). So wind farms can have a deteriorating impact on birds, and may also result in local

habitat alteration or destruction. It is this impact on biodiversity that makes part of the subject

of this paper.

Keeping wind farms’ potential impact on biodiversity in mind, the siting of these projects is an

issue that demands for thorough consideration. Particularly relevant in this perspective are the

nature sites that make part of the Natura 2000 network. This network stretches over 18% of the

EU’s land area and almost 6% of its marine territory.3 Consequently, conflicts between Natura

2000 and alternative energy projects are inevitable, especially as the Member States are aspiring

to meet their 2020 targets. The question then arises how the balance is made, and which aspects

are taken into consideration during the decision making process for wind farm siting. The EU

legislation that relates to the issue is presented and assessed in this paper. On the one hand this

3 European Commission, ‘Natura 2000’, retrieved from

http://ec.europa.eu/environment/nature/natura2000/index_en.htm.

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legislation wants to encourage alternative energy generation to mitigate against climate change,

by fostering wind farm construction and operation.4 On the other hand, the European legislator

wants to preserve biodiversity through birds and habitats protection, which sometimes appears

to be inconsistent with the siting of alternative energy installations.5 This inconsistency may

lead to conflicts, and a balance of interests that needs to be made. This balancing should be

supported by the legislation. Nature conservation law can counteract the use of nature areas for

other purposes and other ecosystem services than nature preservation. Likewise, project

development of wind farms is sometimes being blocked on the basis of Article 6(3) of the

Habitats Directive, as these projects might have effects on the integrity of nature sites (Fred

Kistenkas, 2012; Mendelts & Boerema, 2012). Apart from the Birds and Habitats Directives,

the Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA)

procedures are particularly relevant. The European Court of Justice (ECJ) has ruled, in

accordance with article 2 of the EIA Directive6, that an assessment has to be conducted for any

project that is likely to have a significant impact on the environment (Anker, Olsen, & Rønne,

2008).7

Projects like wind farms would have a positive impact on overall sustainable development, but

licenses are not granted because of these possible adverse impacts on the sites. If the EU’s

biodiversity protection framework is strictly applied, this might lead to the rejection of many

renewable energy projects. Likewise, the current regime tends not to facilitate a sustainable use

of nature areas, as it might lose eye on the bigger picture. This leads to a loss of support for

nature conservation law as it is perceived to obstruct wise and sustainable land use, and is

referred to as ‘nature gardening’ and ‘deathbed conservation’ (Cliquet, Backes, Harris, &

Howsam, 2009; FH Kistenkas, 2013; Trouwborst, 2009). The current applicable international

nature conservation legislation was not created with climate change in mind (Trouwborst,

2009). It can be argued that this legislation, or rather the interpretation thereof, needs to be seen

4 Art 2(a) Renewable Energy Directive. 5 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation

of wild birds and amending and subsequently repealing Council Directive 79/409/EEC of 2 April 1979 on the

conservation of wild birds [2009] OJ L20 (Birds Directive); Council Directive 92/43/EEC of 21 May 1992 on the

conservation of natural habitats and of wild fauna and flora [1992] OJ L206 (Habitats Directive). 6 Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive

2011/92/EU on the assessment of the effects of certain public and private projects on the environment [2014] OJ

L124 (EIA Directive). 7 Case C-435/97 World Wildlife Fund (WWF) and Others v Autonome Provinz Bozen and Others [1999] ECR I-

5613; Case C-72/95 Aannemersbedrijf P.K. Kraaijeveld BV e.a. v Gedeputeerde Staten van Zuid-Holland [1996]

ECR I-5403; Case C-431/92 Commission of the European Communities v Federal Republic of Germany [1995]

ECR I-2189; Case C-392/96 Commission of the European Communities v Ireland [1999] ECR I-5901.

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in the light of present day conditions. Together with a facilitation of species and ecosystems to

adapt to climate change, this legislation should support climate change mitigation. This

combination should provide for benefits for the nature conservation at local level, while helping

to mitigate against global climate change. The EU’s legislative framework relating to

alternative energy and wind farms is assessed in this paper. Throughout an overview of the

climate change developments, the governing EU legislation, siting of wind farms, and scientific

research in this field, it is argued in this paper that it is not the legislation that needs adjustment,

but the way it is perceived and applied by the national authorities. The relation between nature

conservation and renewable energy projects should not be regarded as an antagonistic one, and

the balancing between the two can be seen as an opportunity for an open, inclusive, science-

based, global debate. The interests of both the wind farms and the Natura 2000 sites should be

able to be harmonized.

2. Climate change and its international agreements

In this section, the biodiversity and renewable energy issues are situated in their broader context

of climate change, and its relating international agreements. After a brief outline of the global

situation, the focus is shifted more specifically towards the EU, and towards the prime

legislative initiatives the EU takes to respond to this global problem.

2.1 A global situation

The whole necessity for alternative energy is induced by anthropogenic climate change.

Alternative energy projects would be of a less pressing need if climate change wasn’t such a

prevalent issue as it is nowadays. Luckily this phenomenon is increasingly being recognized as

a problem that needs to be addressed. The greenhouse gas emissions resulting from energy

production make a large share of the total emissions that are released into the atmosphere, which

consequently contribute to climate change and global warming. That’s why eliminating the

emissions from energy production through the development and implementation of renewable

energy is a precarious issue. To date the climate change regime has not been able to rise to the

challenge that is presented by the changing climate. One of the main reasons for this is that

climate change calls for a profound restructuring of the energy systems of modern-day societies,

which has not been accomplished yet. Important in this field are climate change conventions

and the current developments in the EU that foster support for renewable energy. The main goal

of renewable energy is to move towards a low carbon economy. This gas contributes to global

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warming, so by cutting carbon gas emissions the economy can be made more sustainable.

Climate change can be combatted through investments in a broad range of initiatives and

mitigation strategies. Renewable energy can be produced from a wide variety of sources

including wind, solar, hydro, tidal, geothermal, and biomass. Wind farms can be used to make

electricity consumption more sustainable.

One of the main externalizations of climate change is the rising of the global temperature. This

is a clear cut indication to world leaders and policy makers that the climate is changing and that

measures need to be taken to prevent the disastrous effects that may result from it. The EU has

set its goal to limit the global temperature changes to no more than 2 degrees Celsius above

pre-industrial levels.8 But a rise of 0,8 °C has already taken place, and a further rise of 0,5 - 0,7

°C (for total warming of 1,3 to 1,5 °C) is already committed.9 2 °C is usually seen as the upper

temperature limit to avoid 'dangerous global warming'.10 Here an overview is given of the

relevant treaties in which the climate goals are set.

2.2 International agreements

The climate change problem was first addressed on a wide scale in the United Nations

Framework Convention on Climate Change (UNFCCC) of 1992.11 This convention was signed

by 196 countries, which indicates that it enjoys nearly worldwide ratification. The goal of this

convention is to stabilize the concentration of greenhouse gas in the atmosphere at a level that

would prevent the influence of human activity on the climate system to become dangerous.12

What was important is that here the basic elements of the climate regime were agreed on.

Unfortunately, the lack of clear mitigation commitments resulted in a failure to establish

effective greenhouse gas mitigation policies, both worldwide as on the EU level. A positive

aspect is that it has led to the establishment of a greenhouse gas monitoring mechanism in the

EU.

8 European Metropolitan Transport Authorities, ‘New EU energy plan - more security, less pollution’, retrieved

from http://www.emta.com/spip.php?article526&lang=en. 9 Intergovernmental Panel on Climate Change, ‘5th assessment report’, retrieved from

http://www.ipcc.ch/report/ar5/wg1/. 10 Art 2 United Nations Framework Convention on Climate Change [1992] (UNFCCC), retrieved from

https://unfccc.int/resource/docs/convkp/conveng.pdf. 11 UNFCCC. 12 Art 2 UNFCCC.

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The next important agreement was the Kyoto Protocol of 1997 to the UNFCCC.13 The most

important feature of the protocol is that it establishes specific individual targets and timetables

for the reduction of greenhouse gas emissions by Annex I parties.14 In Europe the renewable

energy debate and climate policy were high on the political agenda in the years 2000. There

was a growing need for a coherent and unified approach in Europe to set the global regulatory

regime to deal with climate change in the context of the Kyoto protocol (Howes, 2010). The

objectives of Directive 2009/28/EC had to be in line with the Kyoto Protocol. The measures set

out in this Directive constitute an important part of the efforts to reduce greenhouse gas

emissions and comply with the Kyoto Protocol.15 The reduction commitments beyond 2012

were also acknowledged. The Kyoto Protocol was ratified by the EU Council of Ministers’

Decision 2002/358/EC in April 2002.16 The EU’s Emissions Trading Directive 2003/87/EC17

of 2003 was a result of this political period with increased arousal for climate issues. In 2004

Directive 2004/101/EC18 synchronized the Emissions Trading System with the Kyoto Protocol

project mechanisms. The Kyoto Protocol commitments were made to reduce the emissions by

an average of 5%, and 8% for EU countries, compared to the levels of 1990. The EU committed

itself to reduce CO2 emissions by 8% by 2010, compared to the base year of 1990 (Petersdorff,

Boermans, & Harnisch, 2006). The targets aimed at in the EU climate and energy package are

more far reaching than the Kyoto targets. With the higher objectives it set for itself, the EU was

preparing for the period after 2012, when the first commitment period of Kyoto expired. The

protocol was ineffective in realizing its objectives. It was problematic in the sense that several

large emitters were no party of the protocol, dropped out, or had no obligation to reduce their

emissions. The result was that the Protocol turned out not to be effective, and did not lead to a

reduction of greenhouse gasses.

13 Kyoto Protocol to the United Nations Framework Convention on Climate Change [1998] (Kyoto Protocol),

retrieved from http://unfccc.int/resource/docs/convkp/kpeng.pdf. 14 Art 7 Kyoto Protocol. 15 Recital 1 Renewable Energy Directive. 16 Council Decision of 25 April 2002 concerning the approval, on behalf of the European Community, of the Kyoto

Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments

thereunder [2002] L130. 17 Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme

for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC

[2003] OJ L275 (Emissions Trading Directive). 18 Directive 2004/101/EC of the European Parliament and of the Council of 27 October 2004 amending Directive

2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, in

respect of the Kyoto Protocol’s project mechanisms [2004] OJ L338.

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A more recent climate conference was held in Copenhagen in 2009. Here a global agreement

for climate change mitigation was to be agreed upon. Unfortunately this was not accomplished,

partly because of a lack of political will. The EU supported the objective to have global

greenhouse gas emissions dropping from 2020, and to be reduced by 50% by 2050 compared

to the levels in 1990. Developed countries would have to make a larger effort by reducing their

collective emissions with 25-40% by 2020 and with 80-95% by 2050 (Howes, 2010).

Developing countries were to achieve a relative emission reduction of 15-30% compared to

their predicted emission increase that would accompany their economic growth. The

Copenhagen Accord sets the long term goal of limiting global warming to no more than 2 °C,

but it is not legally binding.19

Another more recent conference that turned out to be more effective was the climate change

conference in Durban in 2011 (Rajamani, 2012). Here again no treaty was established, but there

was made an agreement to establish a global agreement by 2015, which had to enter into force

in 2020. This agreement is referred to as the “Durban Platform for Enhanced Action”. The

goals of this agreement eventually resulted in the Paris Agreement.

The Paris Agreement is the most recent development towards worldwide measure-taking to

respond to climate change. This agreement is also adopted within the UNFCCC framework.

The aim of the Paris Agreement is enhancing the implementation of the UNFCCC. As it is

outlined in article 2 of the agreement, the goal is to keep the increase of temperature ‘well

below’ 2 °C and to try to keep the increase to 1.5 °C.20 The Paris Agreement has provisions to

increase the ability to adapt to the adverse impacts of climate change, to foster climate change

resilience, and to limit the greenhouse gas emissions.21 Countries have submitted Intended

Nationally Determined Contributions (INDCs) in which they outline their climate action

strategies for the post-2020 era (Rogelj et al., 2016). There are also incentives to direct the

finance flows in a green direction, to finance the development of low greenhouse gas emissions

and climate resilience. The parties came to the agreement by consensus on 12 December 2015.

By October 2016 there were enough countries who had ratified the agreement so that a

considerable share, namely 55%, of the world’s greenhouse gasses was taken into account.22

19 United Nations, ‘The Copenhagen Accord’, retrieved from

http://unfccc.int/meetings/copenhagen_dec_2009/meeting/6295.php. 20 United Nations, ‘Paris Agreement’ [2015] (Paris Agreement), retrieved from

https://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf. 21 Art 2 Paris Agreement. 22 European Commission, ‘Paris Agreement to enter into force as EU agrees ratification’, retrieved

from http://europa.eu/rapid/press-release_IP-16-3284_en.htm.

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The agreement consequently went into force on 4 November 2016. The Paris Agreement is

historical because it is the first comprehensive climate agreement that enjoys worldwide

applicability. The USA has also signed the agreement. With this agreement, the Durban

objective to have a binding global climate agreement by 2020 was already accomplished in

2016.

Much of the international law on renewable energy is non-binding, such as the 1972 Stockholm

Declaration. However, some international agreements such as the Espoo Convention23 and the

Aarhus Convention24 do have binding obligations. More important in the field of wind energy

are the UN Convention of the Law of the Sea (UNCLOS)25, and the Energy Charter Treaty26.

UNCLOS is relevant for offshore wind farms, as it encompasses the legal aspects of energy

projects at sea. The Energy Charter Treaty coordinates energy cooperation, and promotes

energy security over different competitive energy markets.27

After this brief overview of the climate change agreements, in the following section the focus

is turned more specifically to renewable energy and the EU’s relating policy.

3. Climate change initiatives in the EU: the EU 2020 objectives

3.1 Renewable energy initiatives

The EU has already shown some positive trends in its way of responding to climate change.

Decarbonisation of the energy sector through renewable energy is an important part of the

mitigation strategies, as energy use accounts for just over two thirds of total annual greenhouse

gas emissions. The largest part of these emissions is coming from power generation, followed

by manufacturing and transport.28 It follows from this that the use of renewable energy will

lower emissions considerably. Recent statistics indicate that the share of renewable energy is

already well on its way.29 Renewable energy sources already accounted for a 12.5% share of

23 Convention on Environmental Impact Assessment in a Transboundary Context [1991] (Espoo Convention). 24 United Nations Economic Commission for Europe, ‘Convention on Access to Information, Public Participation

in Decision-making and Access to Justice in Environmental Matters’ [1998] (Aarhus Convention). 25 United Nations, ‘United Nations Convention on the Law of the Sea’ [1982] (UNCLOS). 26 Energy Charter Treaty [1994]. 27 Ibid. 28 International Renewable Energy Agency, ‘Rethinking Energy’ [2015] (Rethinking Energy), retrieved from

https://www.irena.org/rethinking/IRENA%20_REthinking_Energy_2nd_report_2015.pdf. 29 Eurostat, ‘Europe 2020 indicators - climate change and energy’ [2017], retrieved from

http://ec.europa.eu/eurostat/statistics-explained/index.php/Europe_2020_indicators_-

_climate_change_and_energy.

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the EU-28’s gross inland energy consumption in 2014.30 This trend is partly caused by the

price changes that have evolved over the last years, since the costs for renewable energy

technologies have fallen considerably. This is especially the case for solar and wind power. The

prices for solar panels have declined by three quarters in comparison to the prices in 2009, and

those for wind turbines have declined by almost a third. This contributes to a growing

competitiveness of renewable energy in relation to fossil fuels and nuclear energy.31

These developments are the result of legislative initiatives. We now turn to the EU’s policy in

the field of renewable energy. The EU’s attention for climate change and renewable energy

goes back to the late 1990’s. The renewable energy policy was first set out in the Commission’s

White Paper Energy for the future: renewable sources of energy.32 This White Paper on

renewable energy sources set the goal to increase the share of renewable energy in gross inland

energy consumption to 12% by 2010. The share of electricity would represent 22.1%. This is

outdated by now as the EU now has a new plan on renewable energy, which is addressed below.

The Climate Change and Energy Package, proposed by the commission, was agreed on by the

EU Heads of State in December 2008. This is also known as the EU 2020 Energy Strategy. The

key objectives of this strategy are: to increase the renewable energy to 20%; to reduce carbon

dioxide emissions by 20% from the levels in 1990; and to achieve energy savings of 20% or

more through energy efficiency.33 The energy strategy tries to provide solutions for the three

core objectives of the EU energy policy: sustainable development, competitiveness, and

security of supply.34 The EU is taking action in several domains to meet these goals. Renewable

energy sources are available in different forms. The EU 2020 strategy covers all forms of

renewable energy, so wind power to generate electricity is just one aspect. These goals, that are

incorporated in Directive 2009/28/EC, are briefly set out here.

30 Eurostat, ‘Renewable Energy Statistics’ [2016], retrieved from http://ec.europa.eu/eurostat/statistics-

explained/index.php/Renewable_energy_statistics. 31 Rethinking Energy. 32 European Commission, ‘Energy for the Future: Renewable Sources of Energy White Paper for a Community

Strategy and Action Plan’ [1997], retrieved from

http://europa.eu/documents/comm/white_papers/pdf/com97_599_en.pdf. 33 European Commission, ‘2020 Energy Strategy’ [2016], retrieved from

http://ec.europa.eu/energy/en/topics/energy-strategy/2020-energy-strategy. 34 European Commission, Green Paper ‘A European strategy for sustainable, competitive and secure energy’

[2006], retrieved from http://europa.eu/documents/comm/green_papers/pdf/com2006_105_en.pdf.

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3.2 Directive 2009/28/EC

The EU has set up its Renewable Energy Directive, referred to as Directive 2009/28/EC. In this

Directive the key objectives of the EU 2020 Energy Strategy are outlined. This directive has set

the goals for the Member States to increase the share of renewable energy in their total energy

consumption. The 2009/28/EC Directive amends, and subsequently repeals, previous Directive

2001/77/EC35 on the promotion of electricity from renewable energy sources, and Directive

2003/30/EC36 on the promotion of the use of biofuels or other renewable fuels for transport.37

With Directive 2001/77/EC targets for 2010 were established concerning the share of electricity

from renewable sources, and the objective was set to remove barriers in terms of grid

management and administrative procedures (Howes, 2010). It provided a framework for

national support schemes, such as subsidy policies to develop renewable energy. Feed-in tariffs

and premiums led to better prices for suppliers of green energy. These can be used to encourage

the development of a certain technology and to reduce costs. With subsequent Directive

2003/30/EC the Commission wanted to establish a similar legal framework to promote

renewable energy in the transport sector, based on biofuels (Howes, 2010). It aimed to reach a

share of 2% of biofuels in the transport sector, and 5.57% by 2010. These two Directives

constituted the main legal framework on renewable energy at that time.

The new directive sets the goal for the level of renewable energy Europe should accomplish.

Directive 2009/28/EC entered into force on 25 June 2009. It requires that 20% of the energy

consumed within the EU is renewable by 2020.38 Europe needs to meet these targets as a whole.

The Member States are also required to have at least 10% of their transport fuels coming from

renewable sources. The targets outlined in the energy roadmap are legally binding to ensure

confidence and encourage investments. This is binding for the Member States, but the EU

leaves the decision about the necessary measures to be implemented into the national policy to

the Member States. So the Member States have the competence on how to decide to meet their

targets.

35 Directive 2001/77/EC of the European Parliament and of the Council of 27 September 2001 on the promotion

of electricity produced from renewable energy sources in the internal electricity market [2001] (Directive

2001/77/EC) OJ L283. 36 Directive 2003/30/EC of the European Parliament and of the Council of 8 May 2003 on the promotion of the

use of biofuels or other renewable fuels for transport [2003] OJ L123. 37 Renewable Energy Directive. 38 Ibid.

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3.3 Varying targets

The countries in the Union have varying targets for renewable energy. This ranges from a goal

of 10% for Malta to 49% in Sweden.39 The given that the goals differ over countries is partly

due to the national possibilities. Some countries in Europe have a greater natural potential for

developing and producing renewable energy than other countries. Some countries may have

more sunshine which makes them more suitable for solar power, while other countries have

more rivers which they can use for hydroelectric power. Iceland for example has geothermic

energy sources that provide for about 65 percent of their primary energy.40 Iceland likewise

already produces the most green energy and electricity per capita in the world.

Relating to wind farms, the levels of wind energy development vary over the EU Member

States. By 2008 eleven Member States had a capacity of more than 1000 MW of wind power

potential installed on their territory (Germany, Spain, Denmark, Italy, France, Portugal,

Netherlands, Sweden, Ireland, Greece and UK) and five of them (Denmark, Spain, Portugal,

Ireland, Germany) had more than 5% of their total electricity demand covered by wind power.

This implicitly implies that the importance of wind power will not be the same in every member

state. This is due to the varying available resources, availability of other renewable energy

sources, capacity of transmission networks, and historical developments.41

3.4 Internal energy market

Despite the Member States’ individual targets and different potential, the ultimate goal is to

meet the European target as a whole. To further encourage the creation of a European internal

energy market the renewable energy directive stimulates the Member States to cooperate

through several mechanisms. These are: statistical transfers, joint projects and joint support

schemes.

Statistical transfers are agreements between Member States to transfer a specified amount of

energy from renewable sources from one Member State to another.42 This allows Member

39 European Commission, ‘National Action Plans’ [2016], retrieved from

https://ec.europa.eu/energy/en/topics/renewable-energy/national-action-plans. 40 Icelandic energy portal, ‘The Energy Sector’ [2016], retrieved from https://askjaenergy.com/iceland-

introduction/iceland-energy-sector/. 41 European Commission, Guidance Document ‘Wind Energy Developments and Natura 2000’ [2011] (Wind

Energy Developments and Natura 2000), retrieved from

http://ec.europa.eu/environment/nature/natura2000/management/docs/Wind_farms.pdf. 42 Art 6 Renewable Energy Directive.

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States with high renewable energy sources to sell their surplus to other Member States. This

can help some Member States with low potential to comply to their targets.

Joint projects allow Member States to cooperate on all types of initiatives relating to the

production of electricity, heating or cooling from renewable energy sources.43 This is meant to

encourage the building of new alternative energy installations and joint infrastructure, the

sharing of the generated electricity to meet more Member States’ targets, and to reduce costs

(Howes, 2010).

Under the mechanisms of joint support schemes Member States may decide to join or partly

coordinate their national support schemes.44 They may set up a common feed-in tariff regime

(see infra).

These cooperation mechanisms will help the separate states to meet their national goals.

Common initiatives that cross the states’ borders will generate economies of scale, and will

thereby reduce the costs. This cooperation will also attract investments, increase the financial

capacity for project development, enhance the spread of new technologies, and enable common

progress towards a more sustainable economy.45

Following these developments, wind energy is being promoted throughout the EU. Member

states have to promote electricity produced from renewable energy sources in their internal

electricity market, and they are required to raise the consumption of alternative energy.46

This progress is supervised by the Union. With implementing the policy of the Renewable

Energy Directive, Member States were obliged to deliver to the European Commission a

National Renewable Energy Action Plan.47 This plan sets out the measures the Member State

will take to achieve the goal. This way the Union can keep a close eye. Another way the EU

monitors the process being made is through its progress reports. Member States must publish a

report setting national indicative targets for future consumption of electricity produced from

renewable energy sources in terms of a percentage of electricity consumption.48 The first report

had to be submitted to the European Commission by 31 December 2011. Since then, a follow

up report has to be published every two years in which an overview is given of the developments

43 Art 7 and 8 Renewable Energy Directive. 44 Art 11 Renewable Energy Directive. 45 Rethinking Energy. 46 Directive 2001/77/EC; Renewable Energy Directive. 47 Art 4 Renewable Energy Directive; European Commission, ‘National Renewable Energy Action Plans’,

retrieved from http://iet.jrc.ec.europa.eu/remea/national-renewable-energy-action-plans-nreaps. 48 Ibid.

14

being made.49 The reporting requirements by the Member States are outlined in article 22 of

the Renewable Energy Directive. For Member States to meet their national renewable energy

action plans and their 2020 objectives, they have to promote and encourage energy efficiency

and energy saving.50 The latest report from 2015 stated that 25 EU countries were expected to

meet their 2013/2014 interim renewable energy goals, and some have already reached their

2020 targets51, this indicates that the overall tendency to meet the goals is favorable. Looking

towards 2020, the projection of greenhouse gas emissions based on Member States’ existing

policy measures shows the EU is on track to reach the 2020 target.52 However, it can also be

seen that the Member States’ existing and planned measures are not enough to put the EU on

track to meet the 40% greenhouse gas reduction target for the next decade until 2030.53 This

indicates that the nearby 2020 targets are within reach, but that more effort needs to be done to

meet the long term objectives. Therefore, a further encouragement and investment in renewable

energy installations like wind farms is necessary.

3.5 Objectives of the EU’s energy package

The EU’s energy package can largely be captured in 4 main objectives, which are outlined here.

Firstly, there are changes planned in the EU’s Emission Trading System (ETS). This system is

a crucial aspect of the EU’s policy to respond to climate change and to reduce greenhouse gas

emissions. With its ‘cap and trade’ system it sets an overall limit (cap) on the total amount of

greenhouse gasses that can be emitted, and enables companies to trade gas emissions. If a

company after the trade still exceeds its maximum amount of emissions it gets a fine imposed.

The sectors that are covered by this system have set their target to lower the emissions to 21%

by 2020 compared to 2005. This is outlined in the Emissions Trading Directive 2009/29/EC.54

49 Art 22 Renewable Energy Directive. 50 Art 3(1) Renewable Energy Directive. 51 European Commission, ‘Report from the Commission to the European Parliament, the Council, the European

Economic and Social Committee and the Committee of the Regions – Renewable energy progress report’ [2015],

retrieved from http://eur-lex.europa.eu/resource.html?uri=cellar:4f8722ce-1347-11e5-8817-

01aa75ed71a1.0001.02/DOC_1&format=PDF. 52 Eurostat, ‘Europe 2020 indicators - climate change and energy’ [2016], retrieved from

http://ec.europa.eu/eurostat/statistics-explained/index.php/Europe_2020_indicators_-

_climate_change_and_energy. 53 Ibid. 54 Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive

2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community

[2009] (Emissions Trading Directive) OJ L140.

15

Secondly, there are national emission reduction targets set. This is outlined in the Effort Sharing

Decision.55 This limits the emission of greenhouse gasses from sectors that are not covered by

the ETS, such as housing, agriculture, waste, and transport. Binding annual limits are set to the

Member States. A monitoring system has been set up to control the Member States. The targets

differ over the countries according to national wealth56, whereby the richer countries need to

cut their emissions more extensively (reduction of 20% by the richest Member States), and

where the less wealthy countries still have a margin to increase their emissions (increase of 20%

by the poorest Member States). The separate national targets will accumulate in an overall 10%

reduction of emissions in the EU by 2020 compared to the levels in 2005 (to be differentiated

from the 20% reduction compared to 1990).

Thirdly, the EU supports the development of low carbon technologies. To do this, the EU

supports technologies on safe carbon capture and storage, and on innovative renewable energy.

This technique consists of the capture of carbon dioxide (CO2) emitted from industrial

processes. Consequently it is transported to a storage site where it is injected into a suitable

underground geological formation for the purposes of permanent storage, so that it cannot

accumulate to global warming.57

Fourthly, the EU is taking measures that should lead to a higher energy efficiency, so that less

energy is needed. These measures are set out in the Energy Efficiency Plan, and are binding for

the Member States through its 2012 Energy Efficiency Directive.58 The measures include: the

promotion of more energy efficient products; making building more energy efficient; promoting

the use of heat that comes with the production of electricity; and investing and financing to

implement the measures.

The EU initiatives are not limited to these aspects, and the EU plans reach beyond the 2020

objectives. The Member States have already agreed on a renewable energy target of at least

27% of total energy consumption within the EU by 2030.59

55 Decision No 406/2009/EC of the European Parliament and of the Council of 23 April 2009 on the effort of

Member States to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission

reduction commitments up to 2020 [2009] (Effort Sharing Decision) OJ L140. 56 Recital 3 Effort Sharing Decision. 57 Recital 4 Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological

storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council

Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006

[2009] OJ L140. 58 Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency,

amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC Text

with EEA relevance OJ L315. 59 European Commission, ‘2030 climate & energy framework’, retrieved from

https://ec.europa.eu/clima/policies/strategies/2030_en.

16

The evolution towards a low carbon economy needs to be supported through legislation that

encourages the promotion, generation, and distribution of alternative energy. The

environmental concerns and the renewable energy sector’s CO2 neutrality are a prime reason

for prioritizing renewable energy sources. An issue that goes accompanied with this, and cannot

be neglected, are concerns of security of energy supply and stability of energy prices. In the

following section attention is drawn to alternative energy markets and the relating European

legislation. More attention is given to the electricity grid connections of power generating

devices, as this is of particular relevance for wind farms.

4. Energy law and energy markets

4.1 Alternative energy markets

The global development in the energy markets is characterized by increasing transboundary

cooperation and trade. This has created the need for a new legal framework and energy policy,

in order to ensure that renewable energy is further developed and that the environment is taken

into account under the new market conditions (Anker et al., 2008).

A major piece of the legal framework for energy law concerns the environmental effects of

energy generation and energy use. Installations for which newer technologies are used, such as

wind power, raise new problems. These new problems that are focused on here are of an

economic nature. A major concern for societies is the stability of energy markets with a stable

supply, to secure rather constant energy prices. During periods with nearly no electricity

generation through wind, conventional power can be used as a backup supply. To support the

technological development needed, public subsidies have been allocated to these ends, resulting

in reduced prices. Over the last three decades the costs of producing energy from wind has

fallen dramatically, and has become more and more competitive with traditional power

generation sources (Blanco, 2009; Chu & Majumdar, 2012; Menanteau, Finon, & Lamy, 2003).

Despite these evolutions wind power is still more costly than conventional power generation,

and thus needs subsidies and access to the liberalized energy sector to attract investors. But if

the external environmental costs would be included in the price of conventional carbon based

power the price would be quite different, as the cost for the environment is enormous (Anker et

al., 2008; Ottinger, Mathews, & Czahor, 2008).

The economic design of the alternative energy market needs to take costs and risks for both

investors and society into account. The most studied design options are the feed-in tariffs (FiT)

17

and feed-in premiums (FiP) (Gonzalez & Arantegui 2015). The FiT and FiP are often used as

major support instruments throughout policy initiatives (Haas et al., 2011). A feed-in tariff

offers a purchase guarantee for the sale of renewable electricity over a long term (Gonzalez &

Arantegui 2015). This is an obligation for the grid operator to buy all renewable electricity

produced (Muñoz, Oschmann, & Tàbara, 2007). This guarantee for electricity demand offers

more security for investors. This is particularly relevant in light of the varying power demand

on different hours of the day. A feed-in premium is an additional amount paid for each unit of

energy produced on top of the electricity market price (Gonzalez & Arantegui 2015). This

makes the price of energy less unpredictable. Both models are used as support mechanisms for

the promotion of renewable electricity (Muñoz et al., 2007). Germany and Spain are often given

as examples of good practice regimes concerning their renewable energy policy (Jacobsson &

Lauber, 2006; Lewis & Wiser, 2007). Some of the good practice regimes and pursuitable energy

policies can only be accomplished through concerted and coordinated action over several

Member States. This applies particularly for the management of the electricity grid, which

stretches over national boundaries. This is the infrastructure of the energy network through

which the alternative energy that is generated in wind farms can be distributed.

4.2 The grid

European Community regulation requires notification of certain investment projects in the

petroleum, natural gas and electricity sectors, including major power stations and transmission

lines.60 This is of importance for the electricity grid that connects the different wind farms. In

recital 57 of Directive 2009/28/EC it is being recognized that there is a need to support the

integration of energy from renewable sources into the transmission and distribution grid and

the use of energy storage systems for integrated intermittent production of energy from

renewable sources.61 The issue of the grid was addressed in Directive 2001/77/EC that

established guaranteed access for grid connection to renewable energy producers. This was

meant to abolish entry barriers to new electricity producers. It helps improve the investment

environment for new potential investors.

60 Regulation (EU) No 256/2014 of the European Parliament and of the Council of 26 February 2014 concerning

the notification to the Commission of investment projects in energy infrastructure within the European Union,

replacing Council Regulation (EU, Euratom) No 617/2010 and repealing Council Regulation (EC) No 736/96

[2014] OJ L84. 61 Recital 57 Renewable Energy Directive.

18

For the EU to be able to meet its energy and climate goals it is crucial to develop a connected

energy infrastructure and to integrate its energy market. The EU has its Trans-European

Networks for energy (TEN-E) strategy formulated, in which it outlines the new energy

infrastructure projects all over Europe, and how this can be funded.62 The EU has identified

several priority “corridors” and priority thematic areas, and helps the relating countries to work

together to develop better connected energy networks.63 These corridors demand for urgent

modifications which are needed to integrate the energy network. One of the electricity corridors

with high priority is the North Seas offshore grid. This connects the important energy locations

in and around the North Sea, as it connects the ten countries in the region. The goal is to

transport electricity from renewable offshore installations to central places where the energy

can be stored or can be directed further for consumption. This also facilitates cross-border

electricity exchange.64 This is of particular importance for offshore wind farm installations, as

they now receive the infrastructural support for their development and operation. In this region,

the North Seas Countries' Offshore Grid Initiative has led to an electricity price drop, and to an

optimization of the necessary technologies.65

This should significantly increase the security of a constant energy supply in the EU and the

neighboring countries. This goes hand in hand with the acceleration of the TEN-E program, and

an improvement of the financing of renewable energy projects.66 The connection of installations

over countries will help the general integration process of electricity from renewable sources.

This connection also has other advantages such as the reduction of balancing costs for making

decisions, encouragement of economic competition resulting in lower prices, supporting the

development of networks, and avoiding an excessive need for new generation installations to

be built.67 Priority access and guaranteed access for electricity from renewable energy sources

are important for integrating renewable energy sources into the internal electricity market.68

This way the generation of electricity from traditional sources can be adjusted to the generation

62 European Commission, ‘Trans-European Networks for Energy’ (TEN-E), retrieved from

https://ec.europa.eu/energy/en/topics/infrastructure/trans-european-networks-energy. 63 TEN-E. 64 European Commission, ‘North Seas Energy Cooperation’, retrieved from

https://ec.europa.eu/energy/en/topics/infrastructure/north-seas-energy-cooperation. 65 European Network of Transmission System Operators for Electricity, ‘The North Seas Countries' Offshore Grid

Initiative (NSCOGI)’, retrieved from https://www.entsoe.eu/about-entso-e/system-development/the-north-seas-

countries-offshore-grid-initiative-nscogi/Pages/default.aspx. 66 Recital 58 Renewable Energy Directive. 67 Recital 59 Renewable Energy Directive. 68 Recital 60 Renewable Energy Directive.

19

from alternative energy sources. This, however, does not mean that the Member States have an

obligation to support or introduce purchase obligations for energy from renewable sources.69

On the other hand, Member States are obliged to facilitate the consumption of electricity

produced from renewable energy sources.70 Member States shall: (a) ensure that the

transmission system operators in their territory guarantee the transmission and distribution of

electricity produced from renewable energy sources; (b) provide for either priority access or

guaranteed access to the grid-system of electricity produced from renewable energy sources;

(c) ensure that when dispatching electricity generating installations, transmission system

operators shall give priority to generating installations using renewable energy sources in so far

as the secure operation of the national electricity system permits and based on transparent and

non-discriminatory criteria.71 These provisions encourage the development and distribution of

alternative energy.

The influence of grid issues on the spread of wind energy has been studied in scientific literature

(Gonzalez & Arantegui 2015). Research has been done towards grid connection costs (Barth,

Weber, & Swider, 2008). The costs should be distributed among the different actors to come to

an integration of the TEN-E strategy. The allocation of connection costs can be an important

barrier for renewable energy installations if the developer has to bear all of them (Swider et al.,

2008). This indicates that the support though funding from the Commission to enlarge the grid

network is of substantial importance. The sharing of costs for the grid connection for offshore

wind energy installations are also passed on to the grid operators, which results in lower cost

bearing for the final consumers (Haas et al., 2011).

As the amount of wind depends on the kind of weather, the power generating abilities of wind

farms are variable. When the demand for energy is higher than the amount provided from

renewable energy installations, backup generations from traditional sources need to be

addressed to be able to constantly cover the power demands. The volume of the required backup

generation can be reduced though energy storage and extension of the grid (Steinke, Wolfrum,

& Hoffmann, 2013). This helps to provide a solution for fluctuations in wind power. These

initiatives enhance the availability of green energy over a larger geographical region and on a

more extensive time span. They allow the energy generated one day to be used another day on

69 Ibid. 70 Art 16 Renewable Energy Directive. 71 Ibid.

20

which energy demand is higher. This would help to fully use the capacity of the alternative

energy installations in an optimal way.

In what is outlined above it has become clear that the EU keeps a close eye on the Member

States’ evolution towards a low carbon economy in order to meet their climate objectives.

Directive 2009/28/EC has shown to be crucial in this evolution. This way the Union set the

goals to be realized, and gave an indication of how this should be done. It has been indicated

that the interconnectivity of wind farms is important to optimize the distribution of electricity

for consumption, and to level out wind variability in different regions, in order to secure a more

constant green energy availability. The grid network influences the siting of wind farms, as

geographical proximity to the network reduces cost for cables to connect. The EU is stimulating

the network development throughout its TEN-E strategy. However, the concrete initiatives,

decisions to be made, and measures to be implemented are not covered by the European

legislation. This is left to the Member States as they have to stand in for most of the relating

decision-making process themselves. This way the EU leaves some important issues to be

decided upon to the Member States. Relating to the geographical confines of the grid network,

one of these issues concerns the siting of wind farms.

4.3 Problem of siting left to the Member States

The renewable energy goals are set out in the European legislation, but it is to the Member

States to implement it into their national policy. The siting of wind farms and the use of its

energy is for the benefit of the wider, global society. This may conflict with the local costs of

these projects. While the advantages of wind energy are significant on the global level, the

impact on the local environment must also be taken into account (Inger et al., 2009). This

promotion of alternative energy at the EU level needs to be balanced with the negative impacts

of actual projects. Concerning the issue of siting of wind farms, it is precisely this balance that

comes to the foreground, the balance between the benefits for the wider society through climate

change mitigation and the possible negative impact on the local environment. This is an issue

that is largely left to the Member States to decide upon, as the EU leaves these specific decisions

to the Member States. So, apart from the European Directives, the Member States still have

their sovereignty over primary energy sources. Likewise the Commission cannot oblige the

Member States to take specific measures concerning the siting of wind farms.

21

This does not mean that the Member States have an unlimited margin to decide over the siting

of wind farms. The constructing, and the presence, of wind farms has several negative impacts,

despite their positive goals of reducing CO2 emissions. This is reflected in the fact that certain

regulations need to be taken into account prior to the construction of wind farms. The

Commission may take action when the Member States, with the placement of energy

installations, are breaching other Directives. For instance, the Habitats Directive can be invoked

when the siting of wind farms would disturb the natural habitats of wildlife and flora.72 Two

Directives that are particularly relevant here are the Directive 85/337/EEC73 on environmental

impact assessment, and Directive 2001/42/EC74 on strategic environmental assessment. Since

the 1997 amendment of the EIA Directive by Directive 97/11/EC75 wind turbines are included

on the list of projects that need to be assessed. Both Directives are applicable for on land and

off-shore projects. Apart from the assessment procedures incorporated in the EIA and SEA

Directives, another procedure is the Environmental and Social Impact Assessment (ESIA), that

focusses more specifically on the social impact of wind farms. This is necessary to address the

wide range of problems that wind farms bring about.

The supra-national regulations that set out the renewable energy objectives need to be reflected

in the national legislative framework and in governmental policy (Nadaï, 2007). This creates a

pressure on the national spatial planning. The efforts of the states to meet their national targets

are translated into policies of spatial planning that might impact biodiversity.

In the remainder of this paper the balancing question that goes accompanied with the siting of

wind farms is further examined. In what follows, the scientific research on the impact of wind

farms on biodiversity is presented. Thereafter the EU Directives relating to birds and habitats

protection and environmental assessment procedures are elaborated upon. Then the question is

brought in relation to the Natura 2000 network.

72 Habitats Directive. 73 EIA Directive. 74 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the

effects of certain plans and programmes on the environment [2001] (SEA Directive) OJ L197. 75 Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects

of certain public and private projects on the environment [1997] OJ L73.

22

5. Wind farm impact on biodiversity

Now the focus is directed towards the impact of wind farms on biodiversity. The scientific

literature is still inconclusive about wind farms’ adverse effects on local biodiversity. Some

general trends have been acknowledged, and are outlined below. A distinction is made between

onshore and offshore farms, as their impact on biodiversity is partly different.

5.1 Onshore wind farm impact on biodiversity

To increase their effectiveness, wind farms must be sited in open areas such as upland and

coastal regions with high average wind speeds. As these areas might overlap with important

wildlife areas, this potentially affects habitats that are used for breeding, wintering and

migrating of birds. The impact of a wind farm on biodiversity must be assessed on a case by

case basis, due to the wide range of variables that might differ over different sites (Drewitt &

Langston, 2006). The potential impact of wind farm projects on local biodiversity is depending

on a range of factors, such as the number of birds and different species residing in the area.

Effects on birds are most studied in this field, as they are the species suffering most from wind

farms. The four main effects of wind farms on birds are collisions, habitat loss, and

displacement due to disturbance (Drewitt & Langston, 2006; Fielding et al., 2006; Fox et al.,

2006). The latter includes the barrier effect to movement, which leads to displacement from

habitat and extension of flights (Masden et al., 2009).

Firstly, bird collision is a phenomenon not exclusively related to wind farms, but to a large

variety of obstacles such as buildings, towers, power lines, masts, traffic, etc (Erickson et al.,

2001; Loss, Will, & Marra, 2014; Pons, 2000). Collision risk with wind farms depends on a

wide range of factors such as: number of birds and their behavior; weather conditions;

topography of the wind farm; the use of lighting on turbines; migration routes (Drewitt &

Langston, 2006; Erickson et al., 2001). The number of bird collisions with wind farms are

generally relatively low. A possible explanation might be that the investigated wind farms were

sited in areas with lower bird numbers, and likewise a lower risk of collision. Another

explanation can be the methodology used for monitoring the collision numbers. Generally,

numbers are gathered by counting carcasses, without statistical correction for carcasses that

were not found or were removed by scavengers (Langston & Pullan, 2003). No uniform

methodology is used, as the scientific research is still developing. Little evidence is available

about the effects of wind farms on bird populations because of a lack of studies that compare

23

the state of a bird species before and after the construction of a wind farm project. There is a

need for longitudinal studies with better analysis designs (G. B. Stewart, Pullin, & Coles, 2007).

The optimal study design would make use of the BACI (before-after-control-impact) method,

but this is rarely realized due to timely or monetary constraints and a lack of legislative necessity

(Masden et al., 2009). Despite rather low collision casualties observed in these studies, the

effects in the long run might be detrimental at population level (Carrete, Sánchez-Zapata,

Benítez, Lobón, & Donázar, 2009). This is especially the case for species with a low

regeneration. Also, besides the impact of a single wind farm, the cumulative effect of multiple

wind farms might be substantial (Masden, Fox, Furness, Bullman, & Haydon, 2010).

Secondly, besides collisions, the siting of wind farms may amount to displacement of birds

(Drewitt & Langston, 2006). Birds may avoid the areas within and surrounding wind farms

which lead to habitat loss. Most studies cannot provide conclusive evidence to determine what

the actual effects of wind farms on the displacement of birds are. The degree of disturbance of

birds varies widely over different wind farm sites (G. Stewart, Pullin, & Coles, 2005).

Thirdly, another possible effect of wind farms is that they may act as a barrier in the flyway of

birds’ routes. This can infringe both with local flight paths as with more long distance migration

routes (Drewitt & Langston, 2006; Kahlert, Desholm, & Clausager, 2004). Birds adjust their

flight routes when wind farms are present. When doing so, birds need to travel additional

distance and use extra energy to avoid these barriers. The impact of one individual wind farm

will not have a significant impact on a population, because the addition distance travelled and

extra energy used appear to be trivial, but the construction of multiple wind farms along a

migration route can result in cumulative effects on a bird population (Masden et al., 2009). To

take this into consideration the EU and UK legislation require a cumulative impact assessment

(CIA) as part of the EIA (Masden et al., 2010).

Fourthly, the last general way in which wind farms might affect birds is through direct habitat

change and loss (Drewitt & Langston, 2006). The magnitude of the impact on the habitat

depends on the size of the projects, but in general it is likely to be small per unit (Fox et al.,

2006).

To conclude it can be acknowledged that wind farms can have some detrimental effects on

birds, but that more research needs to be conducted to see how these effects result in the long

run, and if they will affect bird species at population level.

24

5.2 Offshore wind farm impact on biodiversity

The marine renewable energy installations that are used for electricity production can have

potential negative impacts on biodiversity. Some of the effects overlap with onshore wind

farms. These include habitat loss, collision risks, noise and electromagnetic fields (Inger et al.,

2009; H. Jensen, Kristensen, & Hoffmann, 2003). The marine environment has enormous

potential for energy production, and can, theoretically, provide for the total global demand of

power (Takahashi & Trenka, 1996). High wind speeds are common over the oceans, and these

winds have a higher average speed and are less turbulent than winds on land, and the wind is

not blocked by obstacles on land (Pelc & Fujita, 2002). The turbine size can be bigger in

offshore projects, and can likewise generate more electricity (approximately 5 MW and more).

This makes wind power more reliable offshore. Another benefit of offshore over onshore is that

most of the European nations are densely populated and only have limited remaining stretches

of land suitable for wind farms. Offshore siting offers an alternative for coastal states.

Compared to onshore, the offshore wind farms have a lower visual impact and negligible noise

pollution effects, as they are not always visible from the shore.

Compared to onshore wind power, offshore wind power is less developed and provides only

for a small amount compared to the total installed wind power capacity in Europe (Bilgili,

Yasar, & Simsek, 2011). Offshore installations are faced with more difficulties concerning the

complexity of placement, technology and costs. As the technology is being further developed,

future projects can be built in deeper waters that are further from the shore, where visual and

noise impact are further reduced (Gaudiosi, 1996). Due to the enormous power generation

potential, the marine environment is an interesting area to invest in for project developers. So,

as the necessary technology is evolving, the potential for offshore wind energy is growing

(Bilgili et al., 2011). This has resulted in a large increase in offshore wind projects (Michel et

al., 2007). These offshore projects can function as power sources to mitigate against climate

change. The development of the necessary technology has made large progress, but the marine

environment should be protected as these technologies are developed (Pelc & Fujita, 2002).

The increase in this kind of projects has been combined with an increase of studies on its

possible negative effects on the local environment (Michel et al., 2007). It is of particular

importance to ensure that these new offshore energy technologies do not harm the marine

environment, because this area is already threatened by overfishing, pollution, habitat loss, and

climate change (Pelc & Fujita, 2002).

25

The potential effects of the construction and operation of offshore wind farms differs among

species, depending on a range of factors such as their likelihood of interference with the turbines

and cables, sensitivity, and avoidance behavior. Scientific studies have primarily focused on

marine mammals and birds because of legal protection for these species and their habitats

(Bailey, Brookes, & Thompson, 2014). The main adverse impact of wind farms, both for

onshore and offshore sites, is the bird mortality through collision with moving rotor blades (De

Lucas, Janss, Whitfield, & Ferrer, 2008). Many of the proposed offshore wind farms cover an

extensive area and involve the construction of turbines that would stand 500-800m from each

other, in wind farms that cover several square kilometers. The large scale of these projects

creates the necessity to map bird flyways and densities over extensive areas (Camphuysen, Fox,

Leopold, & Petersen, 2004). In comparison to onshore farms, offshore sites avoid some of the

problems that are presented to land birds (Barrios & Rodriguez, 2004).

It is suggested that bird collision relates to the height of the turbine and elevation above sea

level, with more collisions with taller turbines and the higher they are built above sea level. It

has been indicated by a meta-analysis that wind farms may have a significant impact on

biodiversity, when longitudinal research is being conducted. But many of the studies suffer

methodological difficulties, which makes the evidence weak (G. B. Stewart et al., 2007). More

long term research is needed. There are no general conclusions to be drawn, as there is too large

a variation over wind farms and bird species.

The impact on biodiversity is expected to be greatest during construction and decommissioning

of the turbines, because of the increased activity during those periods that results in habitat

destruction, noise and changes in the ocean floor. The impact on habitats by wind farm

construction is higher than the construction of other maritime renewable energy installations,

as they alter the seabed on which the windmills are constructed (Mueller & Wallace, 2008). On

the other hand, the piles that are put on the seabed on which the windmills are constructed may

function as artificial reefs, and likewise have a positive impact (Pelc & Fujita, 2002). There is

evidence that properly sited wind farms can benefit the local environment. Taking into account

as well that siting of wind farms in untouched areas, that are not threatened by human activity,

are not expected to be beneficial (Inger et al., 2009). It has been indicated that the piles on

which wind turbines are constructed may function as artificial reefs. In addition, these go

combined with an increase in fish numbers (Wilhelmsson, Malm, & Öhman, 2006). Thus, the

piles may act both as artificial reefs and fish aggregating devices. It was found in a research at

wind power farms in the Southeastern coast of Sweden that fish abundance was greater near the

26

turbines than in surrounding areas, but the diversity of species was lower than in surrounding

areas (Wilhelmsson et al., 2006). Fish are attracted to solid structures, that are placed by man

on the seabed (Seaman Jr, 2013). A wide range of manmade objects can function as artificial

reefs. These include concrete and steel units designed for these purposes, but also objects that

did not have this function as their primary goal, such as car tires, airplanes and shipwrecks.

These are used to enhance fisheries, to mitigate damage to the environment, or to rehabilitate

degraded habitats (A. Jensen, 2002; Pickering, Whitmarsh, & Jensen, 1999; Rilov & Benayahu,

1998). Wind farms can be included in the category of secondary artificial reefs, which are

constructed for other purposes. Another example of these secondary artificial reefs are oil

platforms (Rooker, Dokken, Pattengill, & Holt, 1997; Seaman Jr, Lindberg, Gilbert, & Frazer,

1989). So this secondary function of the piles of offshore wind turbines can be beneficial for

biodiversity. On the other hand, another disadvantage might be that the artificial structures

might facilitate the spread of non-indigenous species, which is deleterious for local marine

biodiversity (Bulleri & Airoldi, 2005; Grosholz, 2002). However, this has not been investigated

specifically for wind farms. If the artificial reefs are not directly related to fisheries, as in the

case of wind farms, these effects become less significant (Inger et al., 2009).

The impact of different projects should not only be assessed on an individual basis, but in total

as well. The impact of a range of projects may be cumulative, which makes it wiser to consider

a whole marine ecosystem rather than the effects of the individual installations (Inger et al.,

2009). This is of particular relevance keeping the growing number of offshore power projects

in mind. An important question relating to this is whether the effects of individual wind farms

also affect the species at population level (Elphick, 2008). More research needs to be done to

establish clear evidence. It seems reasonable to suggest that the overall effects on marine fauna

are positive, based on the given that the monopile support structures from wind farms can create

additional habitat by functioning as artificial reefs and fish aggregating devices (Inger et al.,

2009). On top of this, a safety zone is established around wind farms to secure the safety of

navigation. The minimum distance ships need to keep from its outer limits is 500 meters. This

creates an area free from fisheries pressure, which provides for a safe haven for maritime

species. Likewise, the possible negative effects of offshore wind farms are more remarkable for

avian species than for maritime species. But also this effect should not be exaggerated. As more

research is being conducted, it becomes clear that the effect of wind farms on avian populations

might not be as disastrous as suggested by earlier studies (Drewitt & Langston, 2006; G. B.

Stewart et al., 2007).

27

Still, marine spatial planning should take these issues carefully into account, and designate

special protection area’s where particular attention goes to conservation of marine species. This

would encourage ecosystem-based sea use management (Douvere, 2008).

6. EU nature Directives

In the following, the EU’s legislative framework that is relevant for balancing wind farm

projects and nature conservation is outlined. Appropriate environmental assessment procedures

are crucial for deciding upon the permits for these projects. The focus is directed towards the

different environmental assessment procedures and their relating Directives, and the Birds and

Habitats Directives. Particular attention is drawn towards the Natura 2000 sites, as the balance

question is of top priority in these areas.

6.1 Environmental Impact Assessment, Strategic Environmental

Assessment, Cumulative Impact Assessment

Considering their essential nature for the topic of this paper, this section starts with a profound

focus on the EIA, SEA and Cumulative Impact Assessment (CIA).

The EIA Directive was adopted in 1985 as Directive 85/337/EEC. It was substantially amended

in 1999 by Directive 97/11/EC, and again in 2003 in order to align its provisions with those of

the Aarhus Convention (Anker et al., 2008). The EIA Directive requires an assessment of the

proposed public and private projects to be carried out by the national authorities.76 This is a

necessary procedure to come to an approval for these projects.

The EIA Directive demands for an impact assessment to be conducted for certain types of

projects, which are included in the annexes. The Directive lays down the information that needs

to be provided and the third parties that need to be consulted. This way the Directive asks for

procedural requirements that need to be assessed, such as: developers need to provide

information of the project and its likely impact77; administrative bodies dealing with nature and

environmental protection should be able to participate; the public concerned should have the

possibility to express its opinion78; and other Member States should be consulted if the project

76 Art 1 Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive

2011/92/EU on the assessment of the effects of certain public and private projects on the environment [2014] (EIA

Directive) OJ L124. 77 Art 5 EIA Directive. 78 Art 6(2) EIA Directive.

28

is likely to have transboundary effects79 (Anker et al., 2008). To encourage participation, the

screening decision has to be communicated in public. The public must also have access to the

environmental statement before the consent is granted.80 The information that should be

included in this environmental statement is set out in Annex IV to the Directive. When one

country is likely to be affected by the activities in another country and there are possible

transboundary effects, this relates to the Espoo Convention.81 This allows the country to be

affected and its inhabitants for participation in the assessment process.82

A distinction is made between Annex I projects and Annex II projects. According to article 283

all projects that are likely to have an impact on the environment should be assessed. However,

a full EIA is only mandatory for Annex I projects. For Annex II projects the Member State has

to determine whether a full EIA is needed. The Member State should do so through a case-by-

case examination or by evaluating the project with thresholds or criteria it has set.84 States are

given discretion for this, but as the selection criteria to be used therefore are indicated in Annex

III, uniformity throughout the Member States is promoted (Bond & Wathern, 1999). This gives

direction to the Member States’ screening decisions. The scope of this discretion has been

limited considerably by the ECJ’s case law. It has ruled, in accordance with article 2 of the EIA

Directive, that an assessment has to be conducted for any project that is likely to have a

significant impact on the environment (Anker et al., 2008).85

Since the amendment of the EIA Directive in 1997 by Directive 97/11/EC, wind farms are

included in annex II, Section 3, Energy Industry, subsection (i) “Installations for the harnessing

of wind power for energy production (wind farms)”. So wind farms are listed in Annex II to the

Directive, and an EIA needs to be carried out depending on their precise size and location (Bond

& Wathern, 1999). It is required by the EIA legislation that an assessment is made of the likely

effects of a new wind farm on birds. This demands that an EIA includes a research on the

predicted changes in the local bird abundance, the distribution of avian species, and in local

biodiversity (Fox et al., 2006).

79 Art 7 EIA Directive. 80 Art 6 EIA Directive. 81 Espoo Convention. 82 Art 7 EIA Directive. 83 Art 2 EIA Directive. 84 Art 4 EIA Directive. 85 Case C-435/97 World Wildlife Fund (WWF) and Others v Autonome Provinz Bozen and Others [1999] ECR I-

5613; Case C-72/95 Aannemersbedrijf P.K. Kraaijeveld BV e.a. v Gedeputeerde Staten van Zuid-Holland [1996]

ECR I-5403; Case C-431/92 Commission of the European Communities v Federal Republic of Germany [1995]

ECR I-2189; Case C-392/96 Commission of the European Communities v Ireland [1999] ECR I-5901.

29

The SEA procedure, with Directive 2001/42/EC, introduced a system of prior environmental

assessment at the planning stage of projects. This Directive applies to a wider range of public

sector strategies, plans and programs. The European Commission’s guidance on implementing

the SEA Directive suggests that it should be approached similar to the EIA Directive.86 The

EJC has interpreted a wide scope of application for the EIA Directive in its Kraaijeveld case87,

and a similar path was meant for the SEA Directive (Sheate, Byron, & Smith, 2004). The SEA

Directive is of particular importance because it allows to consider environmental issues much

earlier in the decision making process than the EIA Directive (Drewitt & Langston, 2006). An

assessment of the plans and programs should be required by legislative, regulatory, or

administrative provisions (Anker et al., 2008). This is the case for wind farms as they are

included in Annex II of the EIA Directive. Thus, the planning and programming of wind farms

is subject to the assessment procedures required under the SEA Directive. The Directive covers

plans and programs that relate to other legislation (such as the Birds and Habitats Directives),

when they are likely to have significant environmental effects. The competent governments are

required to carry out a SEA of national wind energy plans and programs that might impact

wildlife adversely (Fox et al., 2006). When sites have the potential to have transboundary

effects, then the different countries that are likely to be affected have to co-operate and

collaborate accordingly. Where projects are likely to affect special protection sites like the

Natura 2000 sites, additional assessment obligations are required, such as under article 6 of the

Habitats Directive88. Under a strict interpretation, in case of such special protection sites, plans

and programs can only be granted permission if they have no impact on the site. This issue is

further elaborated upon in the section “making the balance”.

Relating to the SEA Directive that has its focus on the planning and programming of projects

in an early stage of their development, there is yet another assessment procedure that takes the

cumulative impact of different projects into account. This is the CIA. Relating to wind farms

specifically, this acknowledges the presumption that negative effects of individual wind farms

can be negligible, but that collectively these small effects can amount to significant impacts.

86 European Commission, ‘Implementation of Directive 2001/42 on the assessment of the effects of certain plans

and programmes on the environment’ [2001], retrieved from

http://ec.europa.eu/environment/archives/eia/pdf/030923_sea_guidance.pdf. 87 Case C-72/95 Aannemersbedrijf P.K. Kraaijeveld BV e.a. v Gedeputeerde Staten van Zuid-Holland [1996] ECR

I-5403. 88 Habitats Directive.

30

The cumulative impacts are not limited to wind farms alone. Impacts also need to be considered

with projects from another kind, such as power lines, that may affect the same avian

populations. This brings the attention to greater spatial scales, and asks for understanding of

individual and cumulative impacts at the population level (Fox et al., 2006). The EIA legislation

has attention for the accumulation of the project that is being assessed with other existing and/or

approved projects.89 The demand for a CIA also occurs in the Habitats Directive and in the SEA

Directive.90 It is argued however that the CIA procedures, as they are currently executed, are

far from optimal (Fox et al., 2006; Masden et al., 2010). The main problem that is put forward

is that there is no appropriate definition of cumulative effects, which creates uncertainty for the

developers. No concrete guidance on methods of assessment is given.

Masden et al. (2010) have proposed a conceptual framework to promote more transparency in

the implementation of a CIA through the explicit definition of impacts, actions and scales within

an assessment. Currently, cumulative impacts are considered too much on a spatially and

temporally restricted scale, and only relate to the EIA of individual projects. These authors have

proposed that it would be beneficial to bring the CIA to a strategic level, to become a component

of the spatial planning and programming of these projects. This would limit the responsibility

of the individual project developer to execute an assessment, and bring it more towards the level

of the regulatory body.

These procedural requirements are now brought in relation to the siting of wind farms. As is

the case for the CIA, the SEA and EIA Directives provide very little guidance of what should

be required specifically when it comes to assessing wind farm projects. The procedural aspects

outlined in these Directives are very general, and likewise lack specific information and

requirements, which leaves a lot of room for interpretation. The Commission has been trying

to give more clarification on this issue through its guidance documents.91 Generality is a

characteristic of the nature of legislation, which should make it viable to apply for a wide range

of issues. As wind farms are projects with a unique impact on biodiversity, more guidance

would be recommended. The limited guidance and absence of case law presumably result from

the fact that this concerns a fairly new sector that is still evolving. This partly rationalizes the

limited direction given for assessing these projects. This creates uncertainty and prevents

89 EIA Directive, Annex III, characteristics of projects, (b). 90 Habitats Directive. Article 6(3); SEA Directive. Annex 1, information referred to in Article 5(1) (a). 91 Wind Energy Developments and Natura 2000; Implementation of Directive 2001/42 on the assessment of the

effects of certain plans and programmes on the environment, retrieved from:

http://ec.europa.eu/environment/archives/eia/pdf/030923_sea_guidance.pdf

31

harmonization of practice over different countries. A more specified international agreement

over the aims and objectives of the necessary process would be useful for project developers.

This presents a need to define what works best for these procedures and what is best practice in

baseline studies. Fox et al. (2006) have indicated that this is necessary to gather information

about the turbine sites to minimize the effects on birds, to study bird populations before and

after construction, and to enhance the quality of the estimated effects. They propose a wide

range of aspects to be included in these studies: study the distribution and abundance of local

and migratory birds; the extent of avoidance of the wind farm; contrast the predictions with the

post-construction effects. Concerning the collision mortality the studies should include: a study

on the number, direction, altitude and nature of all birds in the surrounding of the wind farm

area; the numbers of collision in different seasonal, environmental and weather conditions (Fox

et al., 2006).

Assessment procedures for new installations must include detailed behavioral observation of

soaring birds as well as careful mapping of migration routes (Barrios & Rodriguez, 2004). This

is crucial information needed both to inform the SEA process during the planning stage, and to

alter the eventual siting of turbines during the EIA process. The assessment processes can then

function as pre-construction mitigation measures. But many of the environmental issues related

to the development of a project will only be undertaken at site level by a project-specific EIA,

and not by a strategic assessment at the planning stage (Fox et al., 2006).

Appropriate assessments of the plans and projects and their environmental concerns have to

precede their approval. All aspects of these projects, together with possible cumulative impacts

with other projects, must be considered and examined according to the best available scientific

knowledge on this issue. Especially the assessments for plans and projects in Natura 2000 sites

need to guarantee that the site’s integrity and the overall coherence of the network are

preserved.92 Several aspects of the site should be determined in this assessment procedure, such

as its baseline condition, the potential impacts of the project, the possible ways to mitigate

against these potential impacts, and the residual impacts. This way it also becomes possible to

formulate the conditions relating to the quality and quantity of the compensatory measures in

case of a negative assessment.

92 European Commission, ‘Guidance document on Article 6(4) of the 'Habitats Directive' 92/43/EEC

Clarification of the Concepts of: Alternative Solutions, Imperative Reasons of Overriding Public interest,

Compensatory measures, Overall Coherence, Opinion of the Commission, 2007/2012’ (Guidance on Article 6(4)),

retrieved from

http://ec.europa.eu/environment/nature/natura2000/management/docs/art6/new_guidance_art6_4_en.pdf.

32

A problem with the EIA is that the project developing companies themselves have to provide

for this assessment. They can appoint an expert company that will deliver an EIA for the

proposed project. It is for the benefit of the expert company if they can deliver a positive EIA

that approves the project, because this will lead to more similar EIA assignments for this expert

company in the future, which implies more money. This raises critical questions about the

quality of the delivered EIA’s.

In order to optimally manage the Natura 2000 sites, and to meet the assessment requirements

of Article 6(3) of the Habitats Directive, the competent authorities should outline the necessary

formal expectations, the information to be provided, and the relevant criteria to follow when

conducting the assessment. Therefore, the EU recommends training of the relevant persons who

are involved in the assessment procedure, such as representatives of the competent authorities,

consultants and plan and project developers.93

The demand for the procedural requirements outlined above are incorporated in the Habitats

Directive. Birds and wildlife habitats can be affected by wind farms, so now the focus is briefly

turned towards their relating EU legislation.

6.2 Birds and Habitats Directives

Many states are bound by international agreements and legislation to maintain bird populations

and to protect habitats. This encompasses migratory birds, provisions of reserves and general

protection of habitats (Camphuysen et al., 2004). For instance, at the international level there is

the Ramsar Convention94 (1971) on the sustainable use and conservation of wetlands

(Matthews, 1993). This created the first international network on protected areas. At the

European level the Bern Convention95 is the Council of Europe’s Convention on the

Conservation of European Wildlife and Natural Habitats. This was the first international treaty

that concerted country action on how to act on nature conservation and to protect both species

and habitats.96 At the level of the EU the Birds and Habitats Directives are most prevalent for

the scope of this paper. The Birds Directive was agreed upon in Directive 79/409/EEC, and its

recodification in Directive 2009/147/EC. The Habitats Directive was adopted in1992 as

Council Directive 92/43/EEC97 on the conservation of natural habitats and of wild fauna and

flora. It aims to promote the maintenance of biodiversity, taking economic, social, cultural and

93 Guidance on Article 6(4), p6. 94 Convention on Wetlands [1971] (Ramsar Convention). 95 The Bern Convention on the Conservation of European Wildlife and Natural Habitats [1979] (Bern Convention). 96 Council of Europe, ‘the Bern Convention’, retrieved from http://www.coe.int/en/web/bern-convention. 97 Habitats Directive.

33

regional requirements into account.98 The Habitats Directive contains measures for the strict

protection of selected species, which is listed in Annex IV to the Directive. It demands for an

indication and protection of selected habitats and species, which are listed in Annexes I and II

to the Directive. These designated sites are known as special areas of conservation (SAC). The

Birds Directive requires the Member States to indicate special protection areas (SPA) in which

protected species occur. The species that are considered rare and/or threatened are listed in

Annex I to the Directive, together with sites for migratory species (Evans, 2012). Together the

Birds and Habitats Directives form the cornerstone of Europe’s nature conservation policy.

They called the EU wide Natura 2000 network into being, which consists both of the SAC’s

and the SPA’s. These protected areas form an ecological network that is protected against

projects that would constitute a potential damage. Wind farms might form a threat for these

protected sites as they have the potential to influence bird populations and local habitats. More

specifically, the construction of wind farms affect species that are protected under the Habitats

Directive. This is not only the case for birds, but also for bats (Voigt et al., 2012). Building on

this judicial base, wind farm construction can be denied.

Concerning offshore wind farms the question arose whether the Birds and Habitats Directive

were applicable in the maritime Exclusive Economic Zone (EEZ). The ECJ ruled that the

Habitats Directive must be implemented in the EEZ with legally binding rules.99 So the

Directive applies for coastal Member States’ EEZ’s, which range up to 200 nautical miles from

their coasts (von Nordheim, Boedeker, & Krause, 2006). Despite a similar judicial recognition,

it is generally accepted that the EIA Directive applies in the EEZ as well (Bugge & Voigt,

2008).

Protection of biodiversity is especially prevalent in the Natura 2000 network, that has its origin

in the aforementioned Birds and Habitats Directives. So the management of these sites is subject

to EU legislation. The question whether these areas can be used as well for alternative energy

installations is a hot topic for these sites. The locations of the Natura 2000 sites sometimes

overlap with areas that would be suitable for generating wind energy. This conflict of interest

has been issued in a number of studies (Dimitropoulos & Kontoleon, 2009; Tegou, Polatidis, &

Haralambopoulos, 2010). The balancing question is of particular relevance to these sites, so the

focus is shifted here more specifically towards the Natura 2000 network.

98 Ibid. 99 Case C-6/04 Commission of the European Communities v United Kingdom of Great Britain and Northern

Ireland [2005] ECR I-9017.

34

6.3 Natura 2000 network

The SAC’s together with the SPA’s cover the Natura 2000 network. This encompasses more

than 26000 sites and geographically stretches over about 18% of the EU’s land area and almost

6% of its marine territory100 (Sundseth & Creed, 2008).

The Natura 2000 network has made large progress for land sites, and is close to completion.

For the sea, however, this network still needs to grow dramatically, because the number of

proposed marine sites is low. Once these sites have been designated, it comes down to properly

managing the sites to protect them from loss and damage. The protected habitats and species

listed in the Annexes to the Birds and Habitats Directives should be monitored in order to be

aware of any changes in their condition. The consideration of these management plans is

recommended by the European Commission,101 and the implementation of protective measures

is mandatory on the basis of Article 6.1of the Habitats Directive. Integrated spatial planning is

promoted, which is particularly relevant for project development. It should allow for early

anticipation of conflicts and delays in projects, and for early detection of possible adverse

environmental impacts. Relating more specifically to marine areas, the European Commission

Recommendation 2002/413/EC102 on Integrated Coastal Zone Management, and the Marine

Strategy Framework Directive 2008/56103, support better strategic planning and requires

Member States to take “management measures that influence where and when an activity is

allowed to occur”.104 Resolving problems at the spatial level in advance would lead individual

projects to have fewer difficulties for consent. The project developers and the competent

authorities can rely on those plans that were agreed upon on the basis of pre- or appropriate

assessments at the spatial level.105 The integrated nature of these strategic plans is meant to act

as a safeguard of the baseline conditions of the area. These plans have to be screened by an

appropriate assessments according to Article 6.3 of the Habitats Directive. This has to be used

to critically evaluate the possible deleterious impact on the Natura 2000 sites, and to make

adjustments in the plans to prevent this damage from happening. The environmental

100 European Commission, ‘Natura 2000’, retrieved from

http://ec.europa.eu/environment/nature/natura2000/index_en.htm. 101 European Commission, ‘Guidelines on the Implementation of the Birds and Habitats Directives in Estuaries

and Coastal Zones’ [2011] (Guidelines on the Implementation of the Birds and Habitats Directives), retrieved from

http://ec.europa.eu/transport/sites/transport/files/modes/maritime/doc/guidance_doc.pdf. 102 Recommendation of the European Parliament and of the Council of 30 May 2002 concerning the

implementation of Integrated Coastal Zone Management in Europe [2002] OJ L148. 103 Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework

for community action in the field of marine environmental policy [2008] (Marine Strategy Framework Directive)

OJ L164. 104 Marine Strategy Framework Directive, Annex VI. 105 Guidelines on the Implementation of the Birds and Habitats Directives.

35

consideration at an early stage of the spatial planning makes it better possible to identify

cumulative effects of projects. Early integrated planning takes into account both the

environmental objectives as the economic and societal needs. This should lead then to a win-

win situation for each party. If it cannot be guaranteed by the appropriate assessment that the

plan or project will not adversely affect the integrity of a Natura 2000 site, then the competent

authority cannot give its consent over it. Exceptionally, if the alternative solutions for the plan

or project are not less damaging than the initial option, and if it is deemed to be of overriding

public interest, then special procedures can be invoked to grant permission. In such cases, where

there are no alternative solutions, compensatory measures need to be taken to fully countervail

any loss or damage to the site.

The enlargement of the Natura 2000 network also makes part of the EU’s wider 2020

Biodiversity strategy. In May 2011, the EU adopted a new strategy to halt biodiversity loss in

the EU, restore ecosystems where possible, and step up efforts to avert global biodiversity loss.

It is acknowledged that biodiversity policies will need to be integrated with other sectoral and

wider policies.106 Likewise, this strategy should become compatible with the 2020 renewable

energy action plan. But this is not the case so far. The practice of integrated planning needs to

be further encouraged. The new strategy acknowledges economic and societal needs and

recognizes the economic value of ecosystem services and the benefits it brings to the economy.

The Natura 2000 sites are designated according to ecological and bio-geographical criteria to

meet specific conservation objectives. Besides these objectives, the sites also provide for a

variety of provisioning, regulating and socio-cultural ecosystem services (Bastian, 2013;

Kettunen, Bassi, Gantioler, & Ten Brink, 2009). This indicates that the degradation of these

sites would not only affect biological diversity. Many of the ecosystem services would be lost

or reduced if the ecosystems were destroyed or became subject to intensive use (Schweppe-

Kraft, 2007). The idea of the Natura 2000 sites as a network is crucial to secure coherence and

connectivity of the Habitats.107 The Natura 2000 network as a whole can serve to mitigate

against climate change as it can help to conserve carbon sinks such as forests, peatlands and

wetlands (Cliquet et al., 2009). The network is aimed at securing species and habitats at a

favorable level of conservation, which should increase their resilience against climate change.

106 European Commission, ‘The EU Biodiversity Strategy to 2020’ [2011], retrieved from

http://ec.europa.eu/environment/nature/info/pubs/docs/brochures/2020%20Biod%20brochure%20final%20lowre

s.pdf. 107 Art 6(4), art 3(3), art 10 Habitats Directive.

36

One of the important targets of the 2020 biodiversity strategy is to fully implement the Birds

and Habitats Directives. This again illustrates the need to evolve towards an integrated approach

for project development. This is not an exact science, but is a deliberate process. The

Commission has established a platform to promote the sharing of experience, best practice

regimes, and cross-border co-operation for the management of the Natura 2000 sites.108

A Wind farm project is likely to have at least some impact on the integrity of the Natura 2000

site, when located in such an area. The main question is then how articles 6.3 and 4 of the

Habitats Directive are to be interpreted. A strict applicability of the precautionary principle

would present a significant obstacle for the siting of a wind farm in the adjacency of a Natura

2000 site. It is argued that the interests of both the wind farms and the Natura 2000 site should

be able to be harmonized (Frins & Schoukens, 2014). Whereas the precautionary principle is

one of the key elements of environmental law, it is often invoked as an argument of opponents

of wind energy projects to prevent new projects from being granted permission. Articles 6.3

and 4 of the Habitats Directive aim to prevent, or at least minimize, the damage to the protected

sites. The question whether wind farms can be sited in these areas, and to what extent Articles

6.3 and 4 of the Habitats Directive apply, is even more ambiguous keeping the inconclusive

scientific evidence in mind. There is no general consensus on the bird collision risk with turbine

rotor blades. Can this lack of evidence be used as an argument to grant permission to these

projects? This is not the most prevalent question. More important is the question whether wind

farms are compatible with the precautionary principle that is substantiated in EU biodiversity

law. It has been put forward that this question can be answered in the affirmative (Frins &

Schoukens, 2014).

In the ECJ case of Azienda Agro-Zootecnica Franchini Sarl and Others109 Italy had refused to

authorize the location of wind turbines not intended for self‑consumption on land situated near

a national park. This is a protected area classified as a site of Community importance and SPA

that forms part of the Natura 2000 network. The authorization had been refused even though no

prior EIA had been carried out on the impact of the project on the site. The balance had to be

made between the environmental Birds and Habitats Directives, and Directives 2009/28/EC and

2001/77/EC on renewable energy sources. The ECJ referred to the principle of proportionality,

108 European Commission, ‘Management of Natura 2000 sites: Best Practice’ [2016], retrieved from

http://ec.europa.eu/environment/nature/natura2000/management/best_practice_en.htm. 109 Case C‑2/10 Azienda Agro-Zootecnica Franchini sarl and Eolica di Altamura Srl v Regione Puglia [2011]

ECR I-6561.

37

which is one of the core principles of EU law. The principle is included in Article 13 of

Directive 2009/28/EC. This required that measures adopted by Member States in this field are

appropriate and necessary in order to attain the legitimate objectives of the legislation. When

there are several possible options, the one with least inconvenient effects should be chosen, and

the disadvantages caused must be proportionate to the aims pursued (Lavrysen, 2012). It is for

the national court to determine whether a national measure at issue is proportionate. The ECJ

concluded that the Directives had to be interpreted as following110: they cannot preclude

legislation which prohibits the location of wind turbines on sites forming part of the Natura

2000 network. This applies more specifically for wind turbines that are not intended for self-

consumption. This can be linked to the difference that is made between public and private

projects. Public projects have a lower threshold to meet the requirements of Article 6(4) of the

Habitats Directive (see infra). There is no requirement for a prior assessment of the

environmental impact of the project on the site concerned, under the condition that the

principles of non‑discrimination and proportionality are respected.111 So the ECJ has put the

emphasis here on the principles of non-discrimination and proportionality that should be

respected when making the balance between wind farm siting and biodiversity protection.

In the next section the balancing question is addressed more specifically throughout an

examination of articles 6(3) and 6(4) of the Habitats Directive.

7. Making the balance

The European nature conservation legislation, and the Habitats Directive’s article 6 on Natura

2000 sites, is currently considered to be a non-flexible provision by some, that’s not open for

new interpretation (FH Kistenkas, 2013). Because of this dogmatic approach by the competent

national authorities, a number of projects are blocked when the balance is made between nature

conservation and wind farm siting. This rigid interpretation can be problematic in the context

of climate change and the need for mitigation strategies. The conflicts between nature

conservation and human activities need to be managed properly (Young et al., 2005). All the

stakeholders need to be included in the decision making process to come to sustainable

development.

This tendency successfully blocks permits from being granted, which potentially hinders

sustainable development for the site. The doctrine indicates that when there might possibly be

110 Ibid. 111 Ibid.

38

some significant effects on the sites, the habitats assessment does not allow any weighing or

margin of appreciation. This is based on what is stated in Article 6(3) of the Habitats Directive:

“Any plan or project not directly connected with or necessary to the management of the site but

likely to have a significant effect thereon, either individually or in combination with other plans

or projects, shall be subject to appropriate assessment of its implications for the site in view of

the site's conservation objectives. (…)”. Dutch case law indicates that permits are rejected by

the competent authorities when there are significant predicted effects of a project on the site

(Fred Kistenkas, 2012; Mendelts & Boerema, 2012). Likewise, wind farm projects with the aim

of mitigating against global climate change are being refused due to the significant effects test

of the Habitats Directive. The current conservation objectives of the legislation is to conserve

wildlife and habitats, rather than dynamic ecosystem resilience (FH Kistenkas, 2013). This is

particularly problematic with the changing needs relating to the emerging climate change. There

is a need for a balancing approach that takes the objectives of both worlds into account, rather

than a dogmatic one that blocks any alternatives from the start. A balance between nature

conservation, economic objectives, and the other ecosystem services is necessary to properly

maintain the use of these important areas. The solution is not to keep away these areas from any

human activity, but to search for the optimal situation for all stakeholders. Legislation needs to

follow this development in order to better fit society’s demands, and to foster mitigation

strategies to climate change. This does not necessitate the change or creation of new nature

conservation legislation, but rather a need of a less dogmatic interpretation of the existing

legislation.

It is argued by Kistenkas (2013) that EU nature conservation legislation is indeed compatible

with sustainable development. The key thereto is to broaden the scope of applicability of nature

conservation legislation beyond the context of Article 6 of the Habitats Directive. Other aspects

of EU legislation relate to this issue. Reference is made to the environmental law principles

such as the precautionary principle and the principle of high level of protection. These are

included in Article 191 of the Treaty on the Functioning of the EU (TFEU). Another relevant

principle is the principle of sustainability specifically included in Article 3 of the Treaty on

European Union (TEU) (Bugge & Voigt, 2008). These principles would allow better for the

balance to be made.

This has led the author to conclude that EU law already has a sufficient framework to make the

balance between ecological and socio-economic interests, and that it does not focus exclusively

on ecological criteria (FH Kistenkas, 2013). Consequently, it is to the competent national

39

authorities to take this whole framework into account, in order not to lose eye on the bigger

picture.

It is outlined here that Article 6(3) of the Habitats Directive leaves the proponents of plans and

projects to substantiate that it can be reasonably accepted that it will not have significant effects

on the Natura 2000 site. If significant negative effects are predicted, then a permit will not be

granted. Under some conditions, though, a permit can still be granted by the competent

authorities to a project which has been subject to a negative assessment. Here Article 6(4) of

the Habitats Directive comes into play. Article 6(4) allows for exceptions, and brings nuance

to Article 6(3). This provision also relates to the assessment procedure for the authorization of

projects. Plans and projects with possible adverse effects on SAC’s and SPA’s, or a Site of

Community Importance, fall under the scope of this article. Article 6(4) incorporates the

possibility of allowing exceptions to the strict significant impact test of Article 6(3). When the

assessment concludes that the plan or project will not cause significant adverse impacts on the

site, then the competent authorities can grant a license. When the assessment is inconclusive,

or finds negative conclusions on the predicted effect on the site, then the procedure of Article

6(4) should be followed. In that situation the principles of precaution and prevention should be

applied as well, which still might lead to the denial of a permit.112

If a plan or project meets the requirements of Article 6(4), it can still be carried out. This

indicates that Article 6, and the whole EU’s relevant legislative framework, intrinsically allows

for some flexibility and balancing. This shows that it is not mainly the legislation that needs

adjustment, but the way this is interpreted by the competent governments that decide over the

permits for projects. For the requirements of Article 6(4) to be met, two conditions need to be

fulfilled.

Firstly, Article 6(4) holds that in absence of alternative solutions to the plan or project, a project

can be realized even when the EIA predicts significant negative effects. These alternative

solutions would concern, for example, different locations, driving routes, different scale or

design of the project, etc. In this stage of the procedure the emphasis is exclusively on ecological

criteria, and the maintenance of the site. Choosing between alternatives should only be

determined by these environmental concerns, and not by other assessment criteria such as socio-

economic concerns.113 The proposed project should be the least harmful alternative for habitats,

species, and the site. This means that there is no other solution with better nature conservation

112 Guidance on Article 6(4). 113 Wind Energy Developments and Natura 2000.

40

perspectives. This encourages developers of wind farms to look for other areas in order to avoid

the impact on the Natura 2000 sites. Besides looking for alternatives concerning the location of

a site, it has been proposed to broaden the scope of this provision. The possibility to go for the

‘zero-option’, so not to realize the project at all, must be considered under Article 6(4) as

well.114 Jackson has argued that national authorities should consider, as an alternative to large

centralized power projects, initiatives such as: “investing in end-use generation; energy

conservation initiatives; and an overall reduction in national consumption levels” (Jackson,

2011). A broadening of the consideration of alternatives would lead to several benefits, such

as: protecting the Natura 2000 sites; helping Member States with their obligation to promote

and encourage energy efficiency and energy saving as outlined in Directive 2009/28/EC; and it

would make the Member States think thoroughly about their energy, consumption and

population policies (Jackson, 2011). This would bring the examination and consideration of

alternatives more to the early planning stage. To accomplish this on a wide scale, the

Commission would have to adjust its guidelines on the interpretation of Article 6(4).

Secondly, according to an interpretation of Article 6(4) of the Habitats Directive, imperative

reasons of overriding public interest can grant a permission to projects with a negative

assessment. These interests include socio-economic concerns for which the realization of the

project is crucial. In subparagraph two of Article 6(4) some examples, other than those of a

socio-economic nature, are given that might constitute such an overriding public interest, which

are those relating to human health or public safety, or to beneficial consequences of primary

importance for the environment. The interest must be overriding, so not every public interest

will meet the threshold. Private projects in general do not qualify for this, so the project

developers of wind farms will need to substantiate that they provide for an overriding public

interest (Frins & Schoukens, 2014). It should be an interest with long-term positive effects for

the public.115 So the realization of the plan or project should be essential in order to meet this

requirement. These imperative reasons of overriding public interest should be considered on a

case by case basis.116

A logical question that can be deduced therefrom is: can the 2020 alternative energy objectives

that are aimed at constitute an imperative reason of overriding public interest? If the

requirements of Article 6(4) are met, an interpretation of that Article can grant a permission to

114 Guidance on Article 6(4). 115 Ibid. 116 Ibid.

41

a wind farm project, irrespective of an assessment that predicts significant negative effects.

Until present there are no ECJ cases that specify the interpretation of Article 6(4)’s requirements

specifically for wind farm projects. So there is no closure upon this issue. It can be assumed

that the positive climate chance mitigation objectives of wind farms might help these projects

to have an imperative reason of overriding public interest. Here reference should be made to

the EU’s TEN-E strategy117. To obtain an optimal grid connection and interlinked energy

network, siting of energy installations in certain areas will be indispensable. It is indicated in

regulation 347/2013118 that the competent authorities should consider the energy infrastructures

of common interest as being of public interest. These projects of common interest should be

given ‘priority status’ at national level.119 It is stated in recital 28 of this regulation that

“authorization should be given to projects which have an adverse impact on the environment,

for reasons of overriding public interest (…)”, when all the conditions under the Habitats

Directive are met. This provision allows the competent authorities to put some more weight on

the wind farms’ side of the balance. The climate change mitigation objectives of wind farms

are highly valued, and can thus in some conditions be of overriding public interest. So article

6(4) can be invoked to push through permits for public wind farms, as they are desirable in the

context of climate change. This can be applied as well, but in a more limited extend, by private

wind farm developers. Regulation 347/2013 also indicates that there will not be a consistent

answer to the above-raised question, as each project is unique and needs to be assessed

differently. When looking at the bigger picture of a number of wind farm sites, the task is still

about making a balance, and not choosing one option.

Irrespective of the specific type of the project (road construction, seaport or airport enlargement,

train line construction, canal construction, etc), it is the party that wants to make use of this

exception that has to prove that the conditions of Article 6(4) are met. If there are no reasons of

overriding public interest, and if there are alternative solutions to the plan or project, no permit

will be granted to a project that would cause significant adverse effects on the site. This

provision would otherwise undermine the effectiveness of an EIA. If the necessary proof to

meet the requirements is provided for by the demanding party, the next issue is the

117 TEN-E. 118 Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17 April 2013 on guidelines

for trans-European energy infrastructure and repealing Decision No 1364/2006/EC and amending Regulations

(EC) No 713/2009, (EC) No 714/2009 and (EC) No 715/2009 Text with EEA relevance [2013] (TEN-E

Regulation) OJ L115. 119 Recital 28 TEN-E Regulation.

42

compensatory measures that need to be taken. It is stated in Article 6(4) that in this situation

the Member State shall inform the Commission of the compensatory measures adopted. When

harm will be done to a site these compensatory measures are necessary to protect the overall

coherence of the Natura 2000 network, in order to get a permit for the project with harmful

effects.120 The obligation to make compensatory measures can help to make the site

management more sustainable, and to improve the legitimacy image of wind farms vis-a-vis

the broader public.

Let’s turn to the precautionary principle now. The ECJ has reaffirmed this principle in the

application of Article 6(3) of the Habitats Directive in its ruling on the Waddenzee.121 It

confirmed that the precautionary principle needs to be applied throughout the screening stage

of a project. The Court stated that an appropriate assessment of a proposed plan or project needs

to be carried out, if it cannot be excluded that it will have a significant impact on the site. All

the aspects of the plan or project which can affect the site’s conservation objectives must be

assessed, prior to the approval of the plan or project. This needs to be conducted according to

the best scientific knowledge in the field. The burden of proof is on behalf of the upholder of

the potentially harmful activity.122 The Court further specified in its Sweetman123 ruling that if

a plan or project is likely to harm one aspect or part of a Natura 2000 site, this doesn’t

necessarily mean that it affects its integrity. This leaves room for a project with negative

assessment results still to be carried out.

It has been indicated here that Article 6, and the whole EU’s relevant legislative framework,

intrinsically allows for some flexibility and balancing. It appears that the number of projects

that are eventually denied because of a rigid interpretation of Article 6(3) and the precautionary

principle is rather low (Frins & Schoukens, 2014). So the legislation does not form an

insurmountable hurdle for wind farm projects to be accomplished. Despite the low number of

denials, a relating issue is the undue delay that some projects suffer from the procedural

requirements (Jackson, 2011). An important reason why permits are denied in some cases is

because an appropriate assessment of the environmental impacts is lacking.124 Still, even the

120 Guidance on Article 6(4). 121 Case 127/02 Landelijke Vereniging tot Behoud van de Waddenzee en Nederlandse Vereniging tot Bescherming

van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij [2004] (Waddenzee ruling) I-7405. 122 Waddenzee ruling. 123 Case C-258/11 Peter Sweetman and Others v An Bord Pleanála [2013] (Sweetman ruling). 124 Bagmoor Wind Ltd v Scottish Ministers [2012] CSIH 93.

43

projects that are denied eventually, or are held back during their process of approval, should

not be overlooked. The assessment procedures act as a safeguard for undue proposals, and to

optimize the environmental aspects of the realization of feasible projects. If the legislation is

interpreted in the light of the present day condition of climate change and the renewable energy

goals, and if the wind farm developers diligently take the nature conservation aspects into

account, both should be compatible.

8. Conclusion

In this paper the EU’s environmental policy has been situated in the global context of climate

change. The EU is promoting the renewable energy regime in its Member States with several

legislative initiatives, such as the 2009/28/EC Directive that incorporates the 2020 objectives.

Positive developments have been made, and the latest progress report from 2015 stated that 25

EU countries were expected to meet their 2013/2014 interim renewable energy goals, and some

have already reached their 2020 targets125. The alterations in national policies have put the EU

well on track to reach the 2020 target.126 The downside of the medal, however, is that the

Member Sates’ current policy and planned measures are highly insufficient to reach the higher

objective of reducing the greenhouse gas emissions by 40% by 2030. 127 Even further, in order

to keep climate change below 2°C, the European Council reconfirmed the EU objective of

reducing greenhouse gas emissions by 80-95% by 2050 compared to 1990.128 So although the

nearby target is within reach, stronger efforts are needed to meet the long term objectives. A

further encouragement and investment in renewable energy installations like wind farms is

necessary.

The legislation, and the interpretation thereof, should follow this evolution. Legislation needs

to facilitate this development in order to better fit society’s demands, and to foster mitigation

strategies to climate change. There is a need for a balancing approach that takes the objectives

125 European Commission, ‘Report from the Commission to the European Parliament, the Council, the European

Economic and Social Committee and the Committee of the Regions – Renewable energy progress report’ [2015],

retrieved from http://eur-lex.europa.eu/resource.html?uri=cellar:4f8722ce-1347-11e5-8817-

01aa75ed71a1.0001.02/DOC_1&format=PDF. 126 Eurostat, ‘Europe 2020 indicators - climate change and energy’ [2016], retrieved from

http://ec.europa.eu/eurostat/statistics-explained/index.php/Europe_2020_indicators_-

_climate_change_and_energy. 127 Ibid. 128 European Council, ‘Council Conclusions on EU position for the Copenhagen Climate Conference’ [2009], retrieved from http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/envir/110634.pdf.

44

of both worlds into account, rather than a dogmatic one that blocks any alternatives from the

start. A balance between nature conservation, economic objectives, and the other ecosystem

services is necessary to properly maintain the use of these important areas. This does not

necessitate the change or creation of new nature conservation legislation, but rather a

reconsideration of the rigid interpretation of the existing legislation by some national

authorities. It has been indicated that the relevant EU legislation, in the context of article 6 of

the Habitats Directive, inherently allows for interpretation an balancing. It can be stressed that

it is highly important that the competent authorities do not lose eye on the bigger picture when

making this balance, while still assessing every project on a case by case basis. When deciding

upon a new project, the decision making body needs to be aware of the sum of all negative

impacts of every single project. Several projects which each have a small impact on a site may

result in severe cumulative consequences. This phenomenon has been referred to as a “death

by a thousand cuts”.129 These cumulative effects from existing and other planned projects

should be taken into account in the decision making process of new projects. Considering the

poor conservation status of many Natura 2000 sites the legal nature conservation regime may

not be weakened. The eventual approval of the lion’s share of the proposed projects indicate

that the balance is often made in favor of project developers. The competent authorities should

be aware of the conservation state of the sites, the impact of the proposed and present projects,

and make a due application of the existing legislation.

A final consideration that can be mentioned concerns the distribution network by which the

consumption of the alternative energy generated by wind farms is facilitated. This network, that

stretches over the EU’s territory, is financially supported and managed with the TEN-E strategy.

As this network provides for transboundary production and consumption of green energy,

Member States should invest in the alternative energy installations that best fit their natural

potential and historical developments, which would enhance their transition towards a low

carbon economy. Following this reasoning, not every Member State has to search desperately

for open windy areas which might overlap with Natura 2000 sites, and consequently bring

nature conservation in jeopardy. Those Member States which are geographically and spatially

disadvantaged should rather look for alternatives to wind farm projects, and invest in other

green energy sources. Likewise, more wind farms can be installed in countries which have

favorable spatial planning and open windy spaces that do not overlap with Natura 2000 sites.

129 Sweetman ruling.

45

The existing distribution network can be further expanded to enhance the transportation and

consumption of all kinds of green energy, to evolve towards a EU-wide green energy based

society.

To conclude, the relation between nature conservation and alternative energy projects like wind

farms should not be regarded as an antagonistic one. The problems presented here can be dealt

with in a constructive way, and should lead to an integrated policy. An optimization of the legal

environment for wind farms should not include reforms aimed at weakening biodiversity

protections. Rather, a due application of the existing legislation is preferable. The necessary

balance to be made between nature conservation and climate chance policies should be

conceived as an opportunity for an open, science-based, global debate (ref:Jackson,2011).

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