Judgment of 21 November 2013 -
BVerwG 7 C 40.11ECLI:DE:BVerwG:2013:211113U7C40.11.0
Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its decisions, is German. This translation is based on an abbreviated version of the original decision. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text.
When citing this decision it is recommended to indicate the court, the date of the decision, the case number and the paragraph: BVerwG, Judgment of 21 November 2013 - BVerwG 7 C 40.11– para. 16.
In taking its decision on whether or not to approve a facility under immission control law, the authority responsible for issuing the corresponding permit is, when reviewing whether the elements constituting a prohibited act under species-protection laws are given, entitled to an assessment prerogative from the technical point of view of nature conservation regarding the determination of existing populations of protected species and the performance of a risk assessment. This applies in those cases in which no findings concerning ecological issues have as yet achieved the status of generally accepted scientific evidence.
Sources of law
Basic Law for the Federal Republic of Germany GG, Grundgesetz article 19 (4) Act on the Prevention of Harmful Effects on the Environment caused by Air Pollution, Noise, Vibration and Similar Phenomena - Federal Immission Control Act- BlmSchG, Gesetz zum Schutz vor schädlichen Umwelteinwirkungen durch Luftverunreinigungen, Geräusche, Erschütterungen und ähnliche Vorgänge Bundesimmissionsschutzgesetz, - Bundesimmissionsschutzgesetz section 6 (1) no. 2 Federal Building Code BauGB, Baugesetzbuch section 35 (3) first sentence no. 5 Act on Nature Conservation and Landscape Management - Federal Nature Conservation Act - BNatSchG, Gesetz über Naturschutz und Landschaftspflege – Bundesnaturschutzgesetz section 34, section 44 (1) no. 1
Summary of the facts
In 2005, the claimant applied for a permit under immission control law for the construction and operation of a wind farm consisting of 17 wind turbines to be constructed on sites the claimant had already acquired in part. These sites were located in an area outside the scope of application of an urban land-use plan (Außenbereich) within the municipal territory of “W.”, a third party summoned to attend the proceedings as a party whose rights may be affected (Beigeladene; hereinafter: summoned third party no. 1). The defendant (the responsible approval authority) refused to grant the permit sought by the application in its entirety, stating that the concerns of species protection took precedence. The project, it stated, was not compatible with the protection of the red kite and black kite. In the vicinity of the wind farm for which the permit was being sought, evidence had been found of red kite breeding grounds. An eyrie last used by a pair of black kites was located at a short distance from the eastern-most turbine, approximately 500 m away. The eyries in this monitored area were regularly occupied by red kites and black kites at a rate that was above the average rate given in the federal state in question. The area selected for the project was the last remaining, large and undisturbed feeding habitat for birds of prey in this region, the defendant argued.
Upon an action having been brought against the denial of approval, the Administrative Court placed the defendant under obligation to grant the permit under immission control law for the 17 wind turbines set out in the application. It held that the project was not contravened by concerns of bird protection. The risk of red kites colliding with wind turbines was relatively low, it argued.
After the defendant had lodged an appeal on points of fact and law in this matter, the regional development plan for the planning region of H. (“H. RDP”) established by the summoned third party no. 2 entered into force in December of 2010. The claimant’s project is located outside of the concentration areas for wind turbines determined in said development plan. Thereupon, the claimant filed a further petition as an alternative, seeking a declaratory judgment stating that the refusal had been unlawful prior to the entry into force of the H. RDP.
The Higher Administrative Court upheld the appeal brought by the defendant and dismissed the action originally brought, amending the judgment handed down by the court of first instance. It held that the claimant’s project was contrary to the objectives pursued by the regional planning in place and thus was impermissible under land-use law. The Court added that the planned site was located outside of the areas determined in the regional development plan as areas having priority for use by wind turbines and being suitable for such use. The subsidiary claim, seeking a declaratory judgment, was without merit, the Higher Administrative Court held. Already prior to the regional development plan entering into force, the claimant’s project had been contravened by the public interest of nature conservation in the sense of section 6 (1) no. 2 of the Federal Immission Control Act (BlmSchG, Bundesimmissionsschutzgesetz) in conjunction with section 35 (3) first sentence no. 5 of the Federal Building Code (BauGB, Baugesetzbuch). The elements constituting the prohibited act of killing or injuring wild animals pursuant to section 44 (1) no. 1 of the Federal Nature Conservation Act (BNatSchG, Bundesnaturschutzgesetz) were given, the Higher Administrative Court held, if the project significantly increased the risk of bird strikes. It continued that since any competent assessment of this question would have to be premised on ornithological criteria, the decision to be taken included prognostic elements and, moreover, neither standardised rules that were generally accepted from the technical point of view of nature conservation nor computationally practicable procedures existed, the competent authority had to be accorded an assessment prerogative from the technical point of view of nature conservation. Based on these factors, the assumption made by the governmental authority as to the prohibition of killing animals having been violated was unobjectionable.
The appeal on points of law brought by the claimant exclusively in order to challenge the dismissal of its motion for a declaratory judgment in the appeal judgment was without merit.
13 (…) The denial of a permit for the claimant’s project (…) confirmed by the court of appeal was compatible with federal law already prior to the regional development plan entering into force. Pursuant to section 6 (1) no. 2 BImSchG, the project was not eligible for a permit because it was in conflict with the prohibition of killing or injuring wild animals under species-protection law as stipulated by section 44 (1) no. 1 BNatSchG and thus, concurrently, with the interests of nature conservation within the meaning of section 35 (3) first sentence no. 5 BauGB.
14 The court of appeal correctly proceeded from the assumption that an assessment prerogative from the technical point of view of nature conservation must be granted to the authority responsible for issuing a permit when reviewing whether the elements constituting a prohibited act under species-protection law are given, because the evaluation by the authority addresses issues outside the sphere of law, for most of which there are no generally accepted scientific standards or standardised survey and registration methods. If and for as long as environmental science does not prove to be the definitive source of scientific insights in this regard, the courts lack the required authority based on superior knowledge to object to an assessment as being “wrong” or “unlawful” as this assessment in terms of nature conservation is achieved by the approval authority by acquiring expert knowledge. This corresponds to the consistent jurisprudence of the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) on matters governed by planning approval law (Planfeststellungsrecht) (on the fundamentals of the matter, see BVerwG, judgment of 9 July 2008 - 9 A 14.07 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgericht) 131, 274 (...)) and was applied as a valid principle also for decisions as to whether or not to approve a facility under immission control law in the judgment of 27 June 2013 - 4 C 1.12 - (…)). The submissions the claimant made in the appeal on points of law gave no reason to deviate from the ruling last cited, which was handed down on facts and circumstances of a similar nature (1.). Similarly, it cannot be said that the court of appeal failed to have regard for the prerequisites or boundaries of the assessment powers granted to the defendant in reviewing the authority’s decision to refuse to grant a permit (2.). (…)
15 1. a) The claimant is wrong in arguing that the recognition of a margin of appreciation accorded to the authorities when reviewing in permit procedures under immission control law whether the elements constituting a prohibited act under species-protection law are given, lacks a statutory basis. It is true that article 19 (4) first sentence of the Basic Law (GG, Grundgesetz) stipulates that, as a general rule, the courts are to fully and completely review the activities of administrative authorities, both in factual and in legal terms. However, the legislator may grant a margin of appreciation to the administrative authorities for certain cases and may thus order that any judicial review is to restrict itself to the observance of the legal boundaries of said margin of appreciation (BVerwG, judgment of 16 May 2007 - 3 C 8.06 - BVerwGE 129, 27(…)). Depending on the circumstances given, it is to be established by an interpretation of the respective provisions whether or not the law provides for such assessment powers. By contrast, it may be left neither to the executive nor to the courts - without having a corresponding statutory basis therefor - to push the boundaries between being bound by the rule of law and the fundamentally comprehensive judicial control of the executive, by assuming that authorities have rights of final decision. Moreover, releasing the authorities applying the law from the control exercised by the courts will always require grounds to exist that carry sufficient weight and are based on the principle of effective legal protection (Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), decision of 31 May 2011 - 1 BvR 857/07 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 129, 1 <22>).
16 The provisions stipulating that observance of the prohibitions under species-protection law as set out in section 44 (1) BNatSchG is the prerequisite for the issuance of planning approval decisions under specialised planning law and for the approval of facilities under immission control law, can be interpreted to include an assessment prerogative of the approval authorities. Originally, such approval acts for the most part were exempted from the application of the prohibitions under species-protection law. Pursuant to section 43 (4) of the 2002 BNatSchG, the prohibitions set out in section 42 subsections (1) and (2) of the 2002 BNatSchG applied in cases, in which the actions falling within the sphere defined for elements constituting a prohibited act were taken in performing an intervention that had been permitted pursuant to section 19 of the 2002 BNatSchG, only insofar as the objects of legal protection for which the prohibitions had been defined were violated intentionally. Under the impression of the judgment handed down by the Court of Justice of the European Union of 10 January 2006 - C-98/03 [ECLI:EU:C:2006:3] -,(…) the legislator abolished this exemption when it amended the Federal Nature Conservation Act by the amending law of 12 December 2007 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 2873). The consequence is that now, the approval authorities must warrant, without any restrictions that said prohibitions are observed when projects mandatorily requiring a permit are realised. In this context, the legislator has not established any further statutory requirements to apply when assessing the nature and scope of the determination of the existing populations of protected species, as well as regarding the surveying and assessment of the implications for the project. Neither has the legislator provided for any formalised procedure for assessing the project’s impact under species-protection law that would be comparable to the requirements stipulated by article 6 (3) of the Habitats Directive (Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora) or section 34 (1) BNatSchG respectively. Nor were any sub-legislative standards formed, as was the case in other areas of environmental law, by putting in place implementing regulations or administrative regulations that specify the relevant provisions. This means that the law is referring the authorities, in a targeted manner, to the insights gained in ecological science and practice, which are to serve them as orientation. In light of the fact that a very large number of ecological issues continues to be without answers generally accepted as scientific evidence by the relevant technical and scientific communities, this can only be understood as the empowerment of the authorities to perform the review under species-protection law on their own responsibility, while taking account of the respectively current status of opinions given in the discipline of nature conservation science concerned. With this, the legislator has afforded to the approval authorities an objectively justified assessment prerogative where standards accepted from the technical point of view of nature conservation are lacking. As there are no completely and fully determinant action benchmarks or control standards this assessment prerogative corresponds to a restriction of judicial control (cf. BVerfG, decision of 31 May 2011, see above, p. 22 and chamber decision of 8 December 2011 - 1 BvR 1932/08 (…).
17 This interpretation cannot be countered by the argument that prohibitions penalised by sanctions or regulatory fines do not allow for an assessment prerogative on the part of the executive, as this would contradict the special requirement for the precision of laws stipulated by article 103 (2) GG. It is true that the prohibitions made in section 44 (1) BNatSchG are penalised by administrative fines under section 69 (2) BNatSchG and by sanctions under section 71 BNatSchG. However, the argument addressed above fails to recognise the limited scope of application that this assessment prerogative has. This prerogative does not refer to the function of section 44 (1) BNatSchG as a provision to penalise actions qualifying as one of the prohibited acts set out in said provision - rather, it refers to its function as a prerequisite for permits and planning approvals respectively. In reviewing whether or not a prohibited act is given, the approval authority is to perform a prognostic identification and assessment of the risk. In this context, the authority is asked - as discussed above - to provide assessments and evaluations also on matters that have not been finally resolved in the technical scientific discipline or that are disputed in this field. It is only for this specific administrative task that the assessment powers are granted, which accordingly have their basis not in section 44 (1) BNatSchG as such, and instead in section 44 (1) BNatSchG in conjunction with the approval provisions of the laws governing the planning approval.
18 b) Inasmuch as the claimant voiced concerns that, where an assessment prerogative is accorded to the authorities in the field of species protection, this would induce the authorities to no longer take account of already existing, scientifically sound standards - in particular also recognised ecological evaluations and assessments of the behaviour of the red kite, as well as of the impacts that the operation of wind turbines will have on this species - or to ignore them for extraneous reasons, this fails to recognise the prerequisites for the margin of appreciation so granted, as well as its boundaries.
19 A margin of appreciation from the technical point of view of nature conservation granted to an approval authority may refer both to the quantitative assessment of the existing populations of protected species and to the assessment of the risks to which they will be subject should the project for which a permit is being sought be realised. However, no such assessment prerogative can be granted inasmuch as a certain method has come to be generally accepted for the determination of the population of species affected by a project for which a permit under immission control law is mandatorily required, or inasmuch as a certain standard has come to be so generally accepted for the risk assessment to be performed, such that contrary opinions no longer can be regarded to be arguable. Thus, the authority must always identify and take account, in granting the permit, of the most recent developments in ecological science by obtaining expert opinions if necessary. The question of whether or not the authority has complied with this requirement will be subject to review by the court. Accordingly, the assessment prerogative of the authority does not generally apply to species-protection law as such. Instead, it will be applicable only where, notwithstanding progress made in science and new insights gained, the opinions continue to diverge and there is no unequivocal ecological scientific evidence regarding the matter at issue.
20 Also where the scope of its assessment prerogative is concerned, the authority is not released from judicial control. The prerogative does lead to a limitation of the density of judicial controls. But the court nonetheless continues to be obligated to review whether, in the overall result, the investigations performed under species-protection law were sufficient, both in their methodical approach and as regards the level of investigative thoroughness, to enable the authority to appropriately review whether the prerequisites of the prohibited act under species-protection law are given (BVerwG, judgment of 27 June 2013, see above, para. 16).
21 2. Based on the requirements presented here for judicial review, the ruling challenged before the Court cannot be seen to contain any errors of law in terms of the laws governing species protection.(…)