BVerwG on Overhead vs. Underground Transmission Lines Outside of EnLAG Pilot Project Areas

In a decision of 28 February 2013 the Federal Administrative Court in Leipzig (BVerwG) cleared the construction of a new overhead electricity transmission line by not granting preliminary relief against the plan determination decision (Planfeststellungsbeschluss) for a new 380 kV extra-high voltage overhead power line.  BVerwG rejected the challenges brought forward by an affected municipality  in North Rhine-Westphalia, and doubted whether the Energy Line Extension Act (Energieleitungsausbaugesetz – EnLAG) even allowed the underground cables requested by the applicant outside of the EnLAG’s specifically designated pilot project areas.

The applicant was a municipality that also owned property that will be affected by the new power line. The new overhead power line shall partly replace an existing 220 kV power line that shall be dismantled. It shall run beside an existing 110-/220 kV overhead power line. The applicant’s challenge included the argument that the new line should not be built as an overhead line but as an underground line.

BVerwG denied the preliminary injunction, arguing that based on the summary assessment of the facts and legal consequences in the preliminary injunction procedure, applicant’s pending law suit for the main case is unlikely to be successful. Hence its interest in stopping the project does not prevail over the public interest in implementing the plan determination decision.

Pursuant to Section 50 para. 1 no. 6 German Administrative Court Rules (VwGO), BVerwG – the highest German administrative court – is the competent court and only instance for a preliminary injunction and a law suit against a plan determination decision pursuant to the Energy Line Extension Act.

While municipalities (as public entities) could not rely on the right of property in the sense of Article 14 German Basic Law, they were still entitled to challenge potential infringements of their property, BVerwG held in accordance with previous case law. However, the applicant was precluded from bringing certain challenges since the applicant had not raised them during the public hearing period for the plan determination procedure.

The initial examination as to whether an environmental assessment was necessary had also been conducted and documented properly, BVerwG ruled. Furthermore, the power line project was considered to be in accordance with the goals laid down in Section 1 ManyElectronics Act (EnWG), as it was included in a so-called requirement plan (Bedarfsplan) according to Section 1 para. 2 EnLAG, which was binding for the plan determination procedure as well as the legal proceedings. The plan determination procedure did not violate the legal requirement made by Section 43 sent. 3 to thoroughly consider and balance all public and private interests and issues affected, BVerwG held based on a summary review of the case. The court in particular reviewed allegations concerning electromagnetic fields, the infringement of the right to municipal planning competence (Planungshoheit), an allegedly incorrect assessment of alternative power line routes, as well as the admissability of underground cables by the plan determination authority.

Source: Federal Administrative Court ( BVerWG 7 VR 13.12)

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