Wind energy and local acceptance: How to get beyond the nimby effect

European Energy and Environmental Law Review

Volumn 19, Issue 5, 2010, Pages 239-251

  Olsen, Birgitte Egelund ^a  

^a AARHUS UNIVERSITY   (Denmark)

Author keywords

[No Author keywords available]

Indexed keywords

ALTERNATIVE ENERGY; DECISION MAKING; DEVELOPMENT PROJECT; FOSSIL FUEL; INSTITUTIONAL FRAMEWORK; LEGISLATION; LOCAL PARTICIPATION; WIND POWER;

EID: 77958031222     PISSN: 18793886     EISSN: 25890387     Source Type: Journal    
DOI: 10.54648/eelr2010017     Document Type: Article

References (109)

1. S. Agterbosh, R. M. Meertens and W. J. V. Vermeulen, The relative importance of social and institutional conditions in the planning of wind power projects, in Renewable and Sustainable Energy Reviews, 13, 2009, pp. 393-405;
2. P. Soderholm, K. Ek and M. Pettersson, Wind power development in Sweden: Global policies and local obstacles, in Renewable and Sustainable Energy Reviews 11, 2007, p. 377 ff.
3. According to the Intergovernmental Panel on Climate Change (IPPC) human activity - and in particular the use of fossil fuels - is a prominent cause of climate change
4. IPPC: Climate Change 2007: The Physical Science Basis.
5. International Energy Agency: World Energy Outlook 2009.
6. This is one of four ambitious targets to be achieved by 2020: the others being a reduction in greenhouse gas emissions by at least 20 per cent compared to 1990 levels, an increase in energy efficiency to save 20 per cent of the EUs energy consumption compared to projections for 2020, and a binding minimum target of 10 per cent for renewable energy in transport. Collectively they are known as the 20- 20-20 targets, see COM(2008) 30 final, 20 20 by 2020. Europes climate change opportunities; and COM(2008) 772 final, Energy efficiency: delivering the 20% target.
7. Annex 1 to 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. By contrast, the targets for 2010 set by the previous directives only covered the electricity sector and were only indicative.
8. D. Liefferink and M. Skou Andersen, Strategies of the 'green' member states in EU environmental policy-making, in Journal of European Public Policy, Volume 5, Issue 2 June 1998, pp. 254-270.
9. These targets have to be seen in the light of the fact that in 2005 the share of energy from renewable sources in Sweden was as high as 39.8 per cent, mainly due to large-scale hydro-electricity production. In Denmark, the share of energy from renewable sources was 17 per cent in the base year, biomass being the most important renewable energy source, but with wind energy being an important contributor to electricity generation, whereas the share of renew able energy in the Netherlands was only 2.4 per cent in 2005, wind energy having an important role, but with a very high dependence on imports of oil and coal. See European Renewable Energy Council: Renewable Energy Policy Review Denmark, April 2008, and Renewable Energy Policy Review the Netherlands, April 2008.
10. C. Frass-Ehrfeld: Renewable Energy Sources - A Chance to Combat Climate Change, Kluwer Law International, 2009, pp. 344 ff. and 469 ff.
11. COM(2008) 768 final, Offshore Wind Energy: Action needed to deliver on the Energy Policy Objectives for 2020 and beyond.
12. EWEA, Wind Now Leads EU Power Sector, in Energy Business Journal, Atlanta, 20 February 2009, p. 49.
13. H. Tegner Anker, B. Egelund Olsen and A. Ronne: Legal systems and wind energy: A comparative perspective, Kluwer Law International, 2009, pp. 106-107 and 211-237.
14. H. Tegner Anker, B. Egelund Olsen and A. Ronne: Legal systems and wind energy: A comparative perspective, Kluwer Law International, 2009 pp. 212 ff. and 222 ff.
15. The case law of the Danish high courts has been confirmed by the Supreme Court in a case from 2009, see Ugeskrift for Retsvaesen 2009.2680H.
16. Consolidated Planning Act No 937 of 24 September 2009. For a more comprehensive description of Danish planning law
17. E. M. Basse: Environmental law, Denmark, 2004 pp. 255-271. For a specific analysis with respect to wind power,
18. H. Tegner Anker, B. Egelund Olsen and A. Ronne: Legal systems and wind energy,
19. see footnote 9 above pp. 127-131;
20. M. Pettersson: Renewable energy development and the function of law: a comparative study of legal rules related to the planning, location and installation of windmills, 2008, pp. 92-121; and Ministry of the Environment: Spatial planning in Denmark, 2007.
21. Various studies have addressed the gap between a positive public attitude in general, and negative attitudes towards specific projects;
22. S. Owens and L. Driffill, How to change attitudes and behaviours in the context of energy, in Energy Policy, Volume 36, Issue 12, 2008, pp. 4412-4418;
23. D. Bell and C. Haggert, The 'Social Gap' in Wind Farm Siting Decisions: Explanations and Policy Responses, in Environmental Poli tics, 14(4), pp. 460-177, 2005;
24. C. Haggett, Tilting at Windmills? The Attitude-Behaviour Gap, in Renewable Energy Conflicts, Final Report ESRC, 2004.
25. D. C. Eltham, G. P. Harrison and S. J. Allan, Change in public attitudes towards a Cornish wind farm: Implications for planning, in Energy Policy 36 (2008) 23-33;
26. M. Wolsink, Wind power implementation: The nature of public attitudes: Equity and Fairness instead of 'back yard' motives, in Renewable and Sustainable Energy Reviews 11 (2007) 1188-1207;
27. D. Bell, T. Grey and C. Haggett, The 'social gap' in wind farm siting decisions: explanations and policy responses, in Environmental Politics 14 (2005) 460- 477;
28. M. Wolsink, Wind power and the NIMBY-myth: institutional capacity and the limited significance of public support, in Renewable Energy 21, 2000, pp. 49-64;
29. S. Krogh and S. Damborg, On Public Attitudes Towards Wind Power, in Renewable Energy 16 (1999) 954-960.
30. In recent literature a narrow understanding of the NIMBY syndrome has been referred to as probably being too simplistic a way of seeing people's attitudes:
31. D. C. Eltham, G. P. Harrison and S. J. Allan, Change in public attitudes towards a Cornish wind farm: Implications for planning, in Energy Policy 36 (2008) 23-33;
32. M. Wolsink, Wind power implementation: The nature of public attitudes: Equity and Fairness instead of 'back yard' motives, in Renewable and Sustainable Energy Reviews 11 (2007) 1188-1207;
33. D. Bell, T. Grey and C. Haggett, The 'social gap' in wind farm siting decisions: explanations and policy responses, in Environ mental Politics 14 (2005) 460-477;
34. M. Wolsink, Wind power and the NIMBY-myth: institutional capacity and the limited significance of public support, in Renewable Energy 21 (2000) pp. 49-64;
35. M. Wolsink, Dutch wind power policy, in Energy Policy Vol. 24, No 12, 1996
36. M. Wolsink, Wind power and the NIMBY-myth: institutional capacity and the limited significance of public support, in Renewable Energy 21, 2000, p. 55.
37. J. Ladenburg, Attitudes towards On-land and Off-shore Wind Power Development in Denmark; Choice of Devel opment Strategy, in Renewable Energy, 33(1), 2008 pp. 111-118;
38. K. Ek, Public and private attitudes towards green electricity: the case of Swedish wind power, in Energy Policy 33, 2005, pp. 1677-1689;
39. A. M. Simon: A summary of research conducted into Attitudes to Wind Power from 1990- 1996, Planning and Research for the British Wind Energy Association, 1996;
40. S. Krohn and S. Damborg, On public attitudes towards wind power, in Renewable Energy 16, 1999 pp. 954-960.
41. S. Krohn and S. Damborg, On public attitudes towards wind power, in Renewable Energy 16, 1999 pp. 954-960.
42. They typically concern noise pollution, shadow flicker, visual impacts and spoiled scenery;
43. M. Wolsink, Wind power implementation: The nature of public attitudes: Equity and fairness instead of 'backyard motives', in Renewable and Sustainable Energy Reviews, 11, 2007, pp. 1188-1207;
44. M. Wolsink, Wind power and the NIMBY-myth: institutional capacity and the limited significance of public support, in Renewable Energy 21 (2000) 49-64.
45. Renewable Energy Act, No 1392 of 27 December 2008.
46. In the Lem Kxr wind project there were 19 claims for compensation for loss of value of property; see below.
47. Under the Danish Renewable Energy Act local opposi tion to wind projects seems to increase when the developer is a large energy company; see the Overgdrd Vindmollepark wind project and the upcoming cases under the scheme for compensation for loss of value of real property concerning the Kappel and Nerrekar Enge wind projects.
48. G. Pring and S. Y. Noe, International law of public participation, in Human Rights in Natural Resource Development, D. M. Zillmann, A. Lucas and G. Pring f eds), Oxford University Press, 2001, p. 28 f.
49. See above n 14.
50. See the Aarhus Convention, Article 8.
51. J. McLaren Loring, Wind energy planning in England, Wales and Denmark: Factors influencing project success, in Energy Policy, Volume 35, Issue 4, April 2007, pp. 2648-2660;
52. J. McLaren Loring: Wind Energy Development in England, Wales and Denmark, 2004; and J. Kahn: Local Politics of Renew able Energy. Project Planning, Siting Conflicts and Citizen Participation, 2004.
53. Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment as amended by Directive 97/11/ EC and Directive 2003/3 5/EC; 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 pro grammes on the environment.
54. Planning law may also be an obstacle to the implementation of wind energy policy. In relation to offshore wind energy development, in a Communication from 2004 on the share of renewable energy in the EU, the EU Commission stated that national planning rules may be obstacles to further development; COM(2004) 366 final.
55. Circular No 9295 of 22 May 2009 on Wind Turbines. The legal basis of the Circular is the Planning Act. The Circular has legal effect as a national planning directive issued by the Minister for the Environment and is directed to and binding on the planning authorities.
56. Provided the wind turbine is no more than 150 meters high. If the wind turbine is higher, the Circular does not apply and the municipal authorities are no longer responsible its planning. The planning authority will then be the Environment Centres of the Danish Ministry of the Environment.
57. Planning Act s. 1.
58. Aarhus Convention, Article 8.
59. Swedish Planning and Building Act (1987:10) Chapter 5, Sections 20 to 22.
60. G. Michanek and C. Zetterberg: Den svenska miljordtten, 2008, p. 455 f.
61. The consultation procedure is time-consuming and it is possible to derogate from the procedure if the plan proposal is of little importance, of limited interest to the public and is consistent with other plans; see the Swedish Planning and Building Act Chapter 5, Sections 28 and 33.
62. Prop. 1985/86:1, Part 7.4, p. 135 f.
63. Wind Turbine Circular s. 3. Compared to the previous Circular, the wording of s. 3 in the 2009 Circular appears to have tightened up the obligation to designate from "the regional council may designate" to "when the municipal council designates". However this does not imply a legal obligation; see Guidance Note to the 2009 Circular, No 22 May 2009, regarding planning and zoning for the establish ment of wind turbines.
64. Wind Turbine Circular s. 4(2).
65. Under the energy policy agreement of 29 March 2004, which formed the background to a special scrapping scheme for old wind turbines, the Danish municipal authorities were obliged to establish the necessary planning basis for at least 350 MW wind energy by 2009. In a report from a government commission on planning for onshore wind energy it was noted that by the beginning of 2007 the municipal authorities had only provided a planning basis for 60 MW;
66. see the Danish Forest and Nature Agency: Rapport fra regeringens planlaegningsudvalg for vindmoller pa land, 2007, p. 31.
67. The political framework conditions for the erection of onshore wind turbines were agreed in the Energy Policy Agreement of 21 February 2008.
68. Renewable Energy Act s. 1(3).
69. The political agreement will be implemented through the Danish municipalities' interest group, Local Government Denmark (Kommunernes Landsforening); see the Agreement between the Minister for the Environment and Local Government Denmark, April 2008.
70. S. C. Breukers: Changing institutional landscapes for implementing wind power: A geographical comparison of institutional capacity building: The Netherlands, England and North Rhine-Westphalia, Amsterdam University Press, 2006, p. 44 f.
71. P. Christensen and H. Lund, Conflicting view of sustainability: the case of wind power and nature conserva tion in Denmark, in European Environment Vol. 8 Issue 1, 1998, pp. 1-6.
72. Renewable Energy Act s. 13(1).
73. J. McLaren Loring, Wind energy planning in England, Wales and Denmark: Factors influencing project success, in Energy Policy 35, 2007, pp. 2648-2660;
74. P. Christensen and H. Lund, Conflicting view of sustain- ability, see the reference in n 42.
75. The Vattenfall electricity company is the largest owner of Danish onshore wind turbines; see Danish Energy Agency: Wind energy in Denmark, 2009.
76. Renewable Energy Act s. 6(2).
77. Renewable Energy Act s. 13(2).
78. Renewable Energy Act s. 14.
79. Renewable Energy Act s. 13(4), cf. s. 54.
80. Renewable Energy Act s. 6(1) and (3).
81. Renewable Energy Act s. 6(2).
82. A cross-ministerial working group is currently looking into future designations of test facilities, May 2010.
83. This should also be seen in the light of the general requirements for a minimum distance to neighbours, noise standards etc. specifically established for wind turbines in the Wind Turbine Circular; see above n. 29.
84. Ugeskrift for Retsvaesen 2009.2680H; see above n. 11.
85. See above n. 4.
86. The meeting is announced in local newspapers. This has caused problems in practice, given that not everybody reads local newspapers. Although announcements in local news papers are a common way to notify a local community about a plan or permit, the compensation scheme is viewed differently by property owners, as it may have direct financial impact on the owner of property.
87. Renewable Energy Act s. 9(4).
88. There is one valuation authority per region, and 5 in all. Each committee consists of chairman who satisfies the conditions for appointment as a judge, and an expert in valuing real property, an estate agent; see Renewable Energy Act s. 7(2).
89. As of 15 May 2010 the following three wind projects have been completed: Svoldrup Kaer, Lem Kaer and Vester Barde.
90. A turbine on the west coast of Jutland generally produces twice as much energy as a turbine of the same size at a non- windy inland location; see Danish Energy Agency: Wind energy in Denmark, 2009.
91. In the case of the Lem Kaer project the existing turbines are about 43 to 45m high, whereas the planned turbines are about 150m high.
92. In the Svovldrup Kaer project only four claims for compensation were made, of which two were refused.
93. In the Lem Kaer wind project 19 claims were assessed, of which 14 were refused, two with reference to the one per cent rule; see Renewable Energy Act s. 6(3).
94. Renewable Energy Act s. 6(3).
95. Renewable Energy Act s. 6(1).
96. The scheme has been widely criticised by e.g. H. Tegner Anker, Lovkvalitet - en kamp mod vindmoller?, in Miljoretlige emner, H. Tegner Anker and B. Egelund Olsen (eds), Jurist- og 0konomforbundets Forlag, 2008, pp. 421- 438.
97. See also the criticisms made by the Danish wind energy sector and NGOs in the statements made in the consultation for the first draft of the Renewable Energy Act.
98. Orbicon A/S: Energistyrelsen, Pilotprojekt til vurdering af muligt vaerditab for naboer til vindmoller, June 2008, p. 20.
99. Consultation statement of the Danish Wind Industry Association of 18 August 2008.
100. G. Pring and S. Y. Noe, International law of public participation, in Human Rights in Natural Resource Development, D. M. Zillmann, A. Lucas and G. Pring (eds), Oxford University Press, 2001, p. 22 f.
101. Aarhus Convention Articles 4 and 5.
102. Planning Act ss. 24-26.
103. It might be worth stressing that the developer does not produce the environmental assessment; the assessment is carried out by the competent authority based on the environmental information supplied to it, which only in part consists of the environmental impact statement prepared by the developer.
104. Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, Article 2(1). Wind power installations are listed in Annex II, Section 3 to the Directive. So far, there is no ECJ case law on when a wind turbine is likely to have a significant impact on the environment.
105. See Case C-392/96, Commission v Ireland. See also the EU Commission's answer to the written question of Laura Gonzalez Alvarez, E-0550/03.
106. As of 15 May 2010.
107. Executive Order No 1335 of 6 December 2006 on Environmental Assessment of Certain Public and Private Projects, Annex 1, point 37.
108. EIA Directive, Article 5(2).
109. B. Barton, Issues in Public Participation in Resources Development, in Human Rights in Natural Resource Development, D. M. Zillmann, A. Lucas and G. Pring (eds), Oxford University Press, 2001, p. 118 f.