Renewable energy and the function of law a comparative study of legal rules related to the planning, location and installation of windmills

Abstract: Swedish energy policy relies heavily on the promotion of renewable energy, in particu-lar wind power. Notwithstanding a substantial political and economic support for this development, the installed capacity of wind power in Sweden remains fairly small both in relation to the corresponding development in other countries and in absolute num-bers. The starting point for this study is that the implementation of a planning policy, such as the Swedish development goal for wind power, is partly dependent on the re- quirements of the law. In other words, in the face of supposedly strong economic incen-tives to promote wind power, barriers to the implementation might be found embedded in the institutional system. The purpose of this study is thus, primarily, to describe and analyse the function of Swedish law with reference to the implementation of renewable energy policy objectives, with focus on the development of wind power. This involves legal rules related to planning, location and operation of windmills. The legal system is evaluated in respect of its capacity to facilitate or impede the development of wind power. Secondly, the study includes a comparative analysis of the corresponding legal functions in Denmark, Norway and England. The result of the analysis of Swedish law indicates that the legal system governing the implementation process encompasses bar- riers to the development of wind power. The main obstacles are found in the system for physical planning and the concession system, although quite a few hindering individual provisions have also been disclosed. The lack of sufficient control functions together with an extensive municipal power creates an unpredictable and ineffective planning system that basically lacks confidence for an efficient implementation of wind power. The installation of windmills may further require as many as five different types of permits, which risks to seriously hamper the development due to lengthy processes and appeals. Among the individual rules, the location requirement in the Swedish Environ-mental Code strikes as notably hindering; the requirement to objectively assess alterna-tive sites has in several cases obstructed the installation of windmills. Overall, the im- plementation deficits are considerable. The examination of the corresponding legal functions in Denmark, Norway and the United Kingdom presents some very important differences with respect to planning control and permit requirements, as well as regard-ing substantial provisions. Generally, it looks as if there is a correlation between the level of overarching control over the physical planning on the one hand, and the poten-tial to successfully implement renewable energy policy objectives on the other. Time-limits for permit procedures, legal standards for emissions, explicit rules for the balanc-ing of opposite interests and so forth, are other interesting features that may be em-ployed in Sweden. A realization of the Swedish wind power planning goal will thus presumably require changes of the law. The most important issue is perhaps to reduce the implementation deficits by improving the legal framework governing the planning and installation processes. A few of the discussed factors emerge as crucial in this re-spect and that is roughly: to remove the general permit requirement, and thus leave the entire trial to the planning system; and to breach the municipal planning monopoly.

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