The Current Government Assignment to the Special Investigator

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HISTORICAL REVIEW

This section of the report gives a historical review of the planning and permitting procedure for large land-based wind power projects in Sweden. The starting point is the legal framework that was applicable to these establishments until 2009. This is followed by the background for the change in the regulations along with the ensuing modifications to the permitting procedure and laws, and then by today’s planning and legislative process.
After explaining the development of the planning and permitting procedure, account is given to the guidance document on municipal approval by the Swedish Energy Agency in 2015, some of the problems with the present laws (2021), and the Government’s assignment to the Swedish Energy Agency and the Swedish Environmental Protection Agency in 2017. Finally, the section concludes with the current Government’s mission to the special investigator, along with the latest national strategy for sustainable wind power development by the Swedish Energy Agency and the Swedish Environmental Protection Agency.

Planning and Permitting for Large Onshore Wind Projects Before 2009

Prior to 2009, large onshore wind power projects in Sweden were subjected to the regulations of both the Planning and Building Act (Plan- och bygglagen, PBL) and the Environmental Code. The regulation under the PBL is predominantly related to the planning of the land and water use in view of the existing conflicting interests, and it is handled at the local level by the relevant municipality(-ies) where the facility is to be built. The review under the Environmental Code addresses the possible health effects of the wind turbines, together with their impacts on the environment. The environmental application is dealt with either at the regional level, that is by the County Administrative Board or Environmental Court, or at the national level, depending on the project size (Khan, 2003).
In accordance with the PBL, the municipalities are granted a so-called monopoly when it comes to the planning of land-use. The planning of land-use is primarily reported in the municipality’s comprehensive plan, a non-legally binding document, which should reflect the various national interests. The main purpose of the municipal comprehensive plan is to lay out the municipality’s vision and strategy for the long-term development of its land and water areas, thus constituting a guiding tool to private developers and public actors (Khan, 2003).
Wind power applications, similar to all building projects, were subjected to a building permit and, in some cases, a detailed plan under the PBL. The detailed plan is legally binding, and it is the municipality that decides on whether such document is required for the specific project at hand (Khan, 2003). The requirement for a detailed plan mainly targeted those projects that had a significant environmental impact, or that were to be established on lands with high demand for development. Here it is important to note that it is possible to appeal both the building permit and the detailed plan to the County Administrative Board and to the Land and Environmental Court (Mark- och miljödomstolen, MMD), respectively. The possibility for the appeal adds to the complexity and duration of the process (Ståhl, 2019).

Change in Regulations of August 1, 2009

On June 20, 2007, a special investigator was appointed by the Ministry of Economic Affairs (Näringsdepartementet) in the Swedish Government to assess and propose changes to the organization and regulations of certain matters that are dealt with under the Environmental Code and the PBL (1987:10, PBL), (Dir. 2007:94, 2007). The special investigator’s task was further supplemented by December the same year to examine the possible need for constitutional amendments related to renewable energy issues, including wind power. The main purpose of the investigation in wind power was to facilitate the expansion of wind power projects in Sweden by simplifying the planning conditions and streamlining the permitting process (Dir. 2007:184, 2007).
The first reason behind the initiative was to achieve the national renewable energy and wind development targets set by the Swedish Parliament (Riksdag). The second was to be in line with the back then upcoming Renewability Directive of 2009, which was adopted by the European Parliament on December 17, 2008. According to this directive, Sweden was to provide 49% renewable energy by 2020 (2009/28/EC, 2009; Prop. 2008/09:146, 2009; Ståhl, 2019). The fast expansion of wind power in Sweden thus became of utmost importance.
The inquiry’s assignment resulted in a report on October 2008 (SOU 2008: 86), followed by a government bill in March 2009 (Prop. 2008/09:146). The constitutional changes aimed at enabling the expansion of wind power within a legally secure, environmentally conscious planning and permitting procedure.
It was considered that the double-trial of land-based wind power projects under both the Environmental Code and the PBL was unnecessary and should therefore be removed, since these laws dealt with many of the same issues. Therefore, large wind power plants were to be tried and permitted on the sole bases of the Environmental Code. However, abolishing the review process under the PBL meant a restriction on the municipal self-government and planning monopoly (Prop. 2008/09:146, 2009).
This proposal was met with concerns and objections, as its consequences were deemed unacceptable by numerous consultative bodies, namely the County Councils and the municipalities. These participants believed that the Environmental Code cannot replace the PBL in the evaluation regarding land-use and designed facilities. The only way to accept the inquiry’s suggestion was for the municipalities to be granted such a strong ability to influence the permit process, that the review authorities under the Environmental Code would not be able to issue a permit against the municipalities’ wishes (Prop. 2008/09:146, 2009).
As a response, the Government proposed that a new provision on municipal approval be added to the Environmental Code (16:4 MB) whereby a permit may only be granted by the licensing authority if the municipality where the establishment is to be built has endorsed the application. In other words, the municipality’s consent is a material condition for the approval of a wind project application. Nonetheless, the Government reserved the right to override the municipality’s decision and test the wind power project according to Chapter 17 of the Environmental Code in case the establishment was considered a matter of extreme national importance. As a result, building permits were not required any longer for wind projects, and detailed plans were only needed in exceptional cases when the development demand for the land where the project is to be built is high. The constitutional amendments were applicable from August 1, 2009 (Prop. 2008/09:146, 2009; Energimyndigheten and Naturvårdsverket, 2017; Ståhl, 2019).

Current Planning and Permitting Procedure for Large Onshore Wind Projects

This section presents an overview of the planning and permitting procedure for large onshore wind power projects in Sweden today (2021). The Environmental Assessment Ordinance (Miljöprövningsförordningen) in Chapter 21, Sections 13 and 14, classifies a wind farm as a large facility if it consists of 2 or more turbines higher than 150 m, or 7 or more turbines higher than 120 m, including the rotor blades. Such projects necessitate a permit under the laws of the Environmental Code, along with the municipality’s approval (NordVind, 2011; Vindlov, 2020).
During the project’s planning phase, reference should be taken from the municipality’s comprehensive plan, which is issued under the Planning and Building Act (2010:900, PBL).
Although this document is not legally binding, it gives an image of the municipality’s intentions towards the long-term development of its land and water areas (Boverket, 2020). The municipality’s comprehensive plan should constitute the basis for the decision by the municipality and as such give good planning grounds to the wind power developers (Boverket, 2012).
Wind power, next to nuclear power and other similar installations, is classified as a hazardous activity according to the Environmental Code, Chapter 9, and the permit application is essentially examined against the rules in Chapter 2, Section 6 (2:6 MB). The trial is done by the relevant Environmental Assessment Delegation, which is one of 12 County Administrative Boards. The permit application must include a comprehensive Environmental Impact Assessment (EIA) as per Chapter 6 of the Environmental Code. As for the municipal approval, it is generally requested by the MPD prior to public consultations, at the latest when the permit application and the EIA are finalized. The municipality’s approval is required for new and change applications (Nilbecker, 2014; Ståhl, 2019; Darpö, 2020b).
It is possible to appeal the MPD’s decision to the Land and Environmental Court (Mark-och miljödomstolen, MMD), one among 5 in Sweden. Further on, it may be possible to appeal the MMD’s decision to the Land and Environmental Court of Appeal (Mark – och miljööverdomstolen, MÖD) (Darpö, 2020b).

Guidance Document on Municipal Approval

The provision on the municipal approval came rather late in the legislation procedure in 2009. The description of the regulation provided in the preparatory work was brief and did not include guidelines for its use, thus resulting in ambiguities in its interpretation and application (Energimyndigheten and Naturvårdsverket, 2017; Ståhl, 2019). As such, the Swedish Energy Agency produced a guide in 2015 to clarify some of the uncertainties associated with the provision. The guide is mainly addressed to the municipalities, review bodies, and the wind industry, and although not legally-binding, it aims to streamline the planning and permitting procedure. As such, the guide provides recommendations for the use of the municipal approval provision and explains the roles of the different actors involved in the process (Energimyndigheten, 2015).
In essence, the guidance document explains that the municipality has several distinct functions in the permit process: to influence the location of the project through the comprehensive plan, address the environmental and health issues by taking part of the early consultations, and take a position on whether the project may be established, through the municipal approval. On the other hand, the MPD and MMD are responsible for the testing of the application according to the Environmental Code. Finally, the project developer is responsible to carry out consultations with the various stakeholders and to deliver a full application with a detailed EIA report (Energimyndigheten, 2015). Several recommendations are given by the Swedish Energy Agency with regards to the decision-making and only some of these are pointed out herein. First, the authority states that the municipality’s opinion towards the establishment should be clarified as early as the consultation phase, especially in the case of a negative stance. Second, if the municipality’s decision is made, it can be communicated to the review authority from early on. Third, it is recommended that the municipality makes a decision within 2 to 3 months after receiving the request from the review authority. Finally, the authority believes that the municipality’s decision should: be based on the suitability of the land-use, address the entire project (i.e., not be partial approval or partial rejection), not be conditional, and be substantiated with justifications (Energimyndigheten, 2015; Ståhl, 2019).

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Problems with the Current Legislation

The 2009 change in regulations aimed to boost the deployment of wind projects in Sweden by simplifying the permit process and reducing its duration (Svensk Vindenergi, 2020). Furthermore, the introduction of the municipal veto provision in the Environmental Code meant to preserve the municipality’s control over its land and water areas (Prop. 2008/09:146, 2009).
However, the evaluation done by the Swedish Environmental Protection Agency in 2017 showed that the intentions of the change in regulations do not seem to have been met, and that the perception of the permit process’s efficiency differs among actors. While the municipalities are generally satisfied with the amendment to the Environmental Code, the experiences of the review bodies, the wind power industry, and the Swedish Wind Energy Association (Svensk Vindenergi, 2020) are quite the opposite. These actors believe that the process became more complicated and suffers from many problems and shortcomings. On the other hand, it appears that the actors mostly agree that the guidance document on municipal approval had little contribution to the improvement of the process, as it is open to interpretation (Geiger and Lundmark, 2017).
To begin with, the new regulations do not appear to have practically abolished the double trial of wind power installations. Even though the municipality is no longer a formal review entity, it is still carrying out its evaluation of the projects much the same way. As a result, the permit processing time seems to have slightly increased with the introduction of the Environmental Code amendments (Geiger and Lundmark, 2017; Svensk Vindenergi, 2020).
Furthermore, the wind industry is of the opinion that the process is legally uncertain and lacks transparency and objectivity. The reasons are that the municipality’s criteria for decision are unclear, the decision can be affected by political considerations, it can be neither predicted nor appealed on the merits, and it is not necessarily justified. The wind industry is also exposed to financial risks because the municipality’s decision comes late and is non-binding, which means it can change during the process (Nilbeker, 2014; Geiger and Lundmark, 2017; Ståhl, 2019; Darpö, 2020b).
Aside from the problems associated with the decision-making process, another significant issue is that the municipal veto is the primary reason for the rejection of onshore wind farm applications and wind turbines in Sweden. Darpö’s recent statistical report (2020b) dealing with 192 onshore wind project applications, including change permits, shows that between 2014 and 2018, 11% of the wind turbines (i.e., 427 turbines) were rejected due to the municipal veto, which is considered a high number. Another statistical evaluation was undertaken by Westander Klimat och Energi (2020) for the period from 2014 to mid-2020, which includes 244 onshore applications. During this period, 1,1001 onshore wind turbines were rejected due to the municipal veto (24%). Other important findings of the study are that firstly, acquiring a permit has not become more difficult, with 43% approvals during 2017-2019 versus 38% in 2014-2016. Secondly, the total numbers of onshore and offshore applications and wind turbines have decreased respectively by 59% and 70% in 2017-2019 in comparison to 2014-2016.

The 2017 Proposal by the Swedish Energy Agency and the Swedish Environmental

Protection Agency

In 2016, the Swedish Energy Agency and the Swedish Environmental Protection Agency were assigned by the Ministry of the Environment to assess the development of the planning and permit process for wind power projects following the introduction of the provision on municipal approval in 2009. The authorities were to analyze the effect that the guidance document on municipal approval had on the process. It was also requested to evaluate the requirement for and produce measures and amendments to the laws, specifically regarding the municipal veto, in order to simplify the permitting procedure (Energimyndigheten and Naturvårdsverket, 2017; Ståhl, 2019).
On June 19, 2017, the Swedish Energy Agency and the Swedish Environmental Protection Agency released their report in response to the Government’s assignment. Firstly, with regards to the effect that the guidance document on municipal approval had on the process, the conclusion was the same as that reported by the evaluation unit of the Swedish Environmental Protection Agency. It was believed that the guidance leaves room for interpretation and as such did not have the desired outcome (Energimyndigheten and Naturvårdsverket, 2017; Ståhl, 2019).
Secondly, the Swedish Energy Agency and the Swedish Environmental Protection Agency studied 10 alternative measures to the municipal veto, and primarily recommended that the provision be completely removed. The authorities believe that abolishing the municipal veto would ensure the sustainable development of wind power as intended, as it eliminates most of the issues associated to it, simplifies the permit process, and makes it more legally reliable. Also, the authorities consider that the process would be rendered more democratic, since the municipal approval cannot be appealed on the merits, while the permit examination allows those who are affected by the development to express their opinions and concerns, as well as to appeal the permit decision in substance. Furthermore, on the one hand, it is thought that the review under the Environmental Code alone is sufficient, and on the other hand, the municipality’s influence, although reduced, can still be practiced through consultations and general spatial planning documents. This proposal, as in 2009 prior to the addition of the municipal approval provision, was met with objections from the municipalities (Energimyndigheten and Naturvårdsverket, 2017; Ståhl, 2019).
The second recommended alternative consists of an early municipal approval, which replaces the provision on municipal veto in 16:4 MB. In this alternative measure, the municipality’s decision comes earlier in the process in the form of a precondition for the permit examination and is legally binding. Additionally, the municipality’s review is to exclusively address the suitability of the area where the project is to be built, in consideration of the proposed maximum number of wind turbines. Consequently, the municipality’s consent is not required for change applications if the area and number of turbines are not modified. As a result, the permit process is facilitated, and its legal security increased, with a reduced impact on the municipality’s influence (Energimyndigheten and Naturvårdsverket, 2017; Ståhl, 2019).

The Current Government Assignment to the Special Investigator

The previous subsections lay down the background for the committee directive entitled ‘Increased predictability in environmental testing of wind power’ (Dir. 2020:108, 2020, p.1, Author’s translation), which was issued by the Ministry of the Environment on October 14, 2020. In this directive, a special investigator is commissioned to first investigate the conditions to abolish the provision on municipal veto; second, suggest methods for repealing the provision while ensuring the municipal influence is maintained; and third, evaluate other suggestions for increasing the legality and predictability of the environmental permit process in case the provision on municipal veto is kept. According to the committee directive (Dir. 2020:108, 2020), the special investigator is to take consideration of the alternative proposals to the abolishment of the municipal veto, as provided in the 2017 report by the Swedish Energy Agency and the Swedish Environmental Protection Agency. The investigator shall also refer to the different alternatives that were submitted in the consultation responses to the authorities’ report. Furthermore, the task should be conducted in close consultation with several important stakeholders, such as the Swedish Energy Agency, the Swedish Environmental Protection Agency, the municipalities, the County Administrative Boards, the Land and Environmental Courts, the wind industry, and others. The assignment is to be completed by June 30, 2021.

Table of contents :

ABSTRACT
ACKNOWLEDGEMENTS
CHAPTER 1 INTRODUCTION
CHAPTER 2 HISTORICAL REVIEW
2.1 Planning and Permitting for Large Onshore Wind Projects Before 2009
2.2 Change in Regulations of August 1, 2009
2.3 Current Planning and Permitting Procedure for Large Onshore Wind Projects
2.4 Guidance Document on Municipal Approval
2.5 Problems with the Current Legislation
2.6 The 2017 Proposal by the Swedish Energy Agency and the Swedish Environmental Protection Agency
2.7 The Current Government Assignment to the Special Investigator
2.8 National Strategy for Sustainable Wind Power Development
CHAPTER 3 METHODOLOGY
3.1 Research Methods
3.2 Data Sources and Methodological Framework
CHAPTER 4 RESULTS AND ANALYSIS
4.1 General Information and Key Figures
4.2 Municipal Planning Conditions vs National Interest Designations
4.3 Municipal Planning Conditions vs Permit Decisions
4.4 National Interest Designations vs Permit Decisions
4.5 Municipal Planning Conditions vs Veto Permit Decisions
4.6 National Interest Designation vs Veto Permit Decisions
4.7 Relationship between Municipal Planning Conditions and Permit Decisions
CHAPTER 5 DISCUSSION OF THE FINDINGS
CHAPTER 6 CONCLUSIONS
REFERENCES

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