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EIA procedures in the (up)wind?

As part of the “energy package” adopted by the federal government, the amended version of the Environmental Impact Assessment Act (UVP-G 2000) came into force on March 23rd, 2023. The goals pursued by the legislature with this amendment – the first amendment to the EIA Act since 2018 – are to facilitate the approval of energy transition projects, to increase procedural efficiency and to establish conformity with Union law and current case law.

Procedural acceleration and simplification

In order to counteract the often criticized excessively long EIA procedures and the delays also in the approval of energy transition projects, there are now quite effective countermeasures in the EIA Act:

It is now expressly allowed for the authority to hold the oral hearing entirely or partially online for reasons of expediency, speed, simplicity, and cost savings. Reasonable deadlines can be set for further submissions, whereby failure to comply will result in preclusion for the entire proceedings. Moreover, the legislature puts an end to the problem of changing state-of-the-art technology during ongoing proceedings by “freezing” the state-of-the-art at the “start of public display”. The prohibition of taking into account abusive or dishonest submissions that could already have been raised during the administrative procedure, has also been tightened, which is intended to speed up the appeal procedure.

A major innovation for revision procedures is that the UVP-G now generally regulates that planned plant modifications are subject to a notification obligation if they are immission-neutral or represent a technological advancement with no significant adverse effects on the protected assets and do not contradict the results of the EIA. The confirmation of a civil engineer or engineering office is to be attached to the notification. If the authority does not initiate a revision procedure within four weeks of receipt of the notification, the changes do not require approval (“green light for the start of construction”).

Energy transition projects and their privileges

In order to be able to implement the urgently needed projects that counteract climate change more quickly, the EIA amendment provides privileges for energy transition projects. Their legal definition (section 7 para. 2 UVP-G) indicates that they should have the broadest possible scope of application. Other projects that do not themselves serve to generate energy but are a necessary prerequisite for the expansion are also included, and “railway expansion projects according to Section 23b or Z 10 of Appendix 1” are also expressly included in these privileged projects. This means that not only energy projects, but also ÖBB high-speed rail lines, other railway projects subject to EIA and the expansion of the subway are “energy transition projects” within the meaning of the EIA Act. The EIA Act now expressly includes the commitment that energy transition projects are considered to be of high public interest. Even though this is not yet a comprehensive implementation of the Emergency Ordinance (EU) to establish a framework for an accelerated expansion of the use of renewable energies of December 22nd, 2022 (for this purpose, separate provisions on the general acceleration of the expansion of renewable energies are to be issued – EABG; see below), this provision is an essential predetermination for the weighing of interests in EIA projects.

The privileges for the expansion of renewable energies in the UVP-G that should be emphasized also include:

  • the exclusion of the suspensive effect in the appeal procedure, if in the appeal the violation of the law was not sufficiently substantiated by the complainant (prevention of “template complaints”);
  • the exclusion of the possibility to reject an application solely because of adverse effects on the landscape if a strategic environmental assessment was carried out as part of the energy spatial planning (prevention of double assessments).

Wind power – a constitutional work of art

In accordance with the constitutional authorization to legislate on needs and similar to the procedure in the MinroG regime, the federal legislature has obliged the federal states, by means of the Renewable Expansion Act (EAG), to enact a supra-local wind energy spatial plan and to specify the zoning plan together with the municipalities. Wind turbines may be erected in the zones designated in the supra-local planning, provided that the rights of third parties, public interests and EU law are protected, even if the necessary specification is missing at the local planning level (zoning). If there is no current supra-local wind energy spatial planning in a federal state, this should not prevent the approval of a wind turbine if the municipality in whose area the foundations of the wind turbines are to be erected has given its consent.

Outlook – EABG: The Renewable Energy Expansion Acceleration Act (EABG), which is yet to be enacted, is intended to provide a uniform federal procedural regime in the future for the benefit of energy transition projects. The aim is to create a concentrated approval procedure (one-stop store) for all projects that serve the energy transition, even if they are below the threshold for mandatory EIA. Similar to the UVP-G and the Waste Management Act (AWG 2002), regulations on central announcements, expert pools and energy planning (Go-To-Areas) should also be included.

If you have any further questions on this topic, please do not hesitate to contact our expert Wolfgang Berger from the Environmental and Technical Law Team by telephone.


This article is for general information only and does not replace legal advice. Haslinger / Nagele Rechtsanwälte GmbH assumes no liability for the content and correctness of this article.


13. April 2023

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