This book is about environmental and climate legal protection in the energy transition. The Paris Agreement has a binding commitment of holding the global temperature increase to 2°C while pursuing efforts to limit it to 1.5°C. To cope with the negative effects of climate changes and mitigate greenhouse gas emissions, one of the primary responses has been the deployment of renewable energy sources, transiting from fossil fuels to sustainable electricity production. However, renewable energy sources can also cause significant environmental impacts. Wind energy, for instance, can impact biodiversity, such as birds and bats, killing them when colliding with turbines and affecting their migration and nesting.
This results in conflicts in environmental law. This book questions whether, in the energy transition, the generation of electricity from renewable sources to protect the climate is compatible with the protection of the environment, both interests in environmental law.
To address this question, this book follows a legal-environmental perspective and assesses the common problem of solving those internal environmental conflicts in Brazilian and German law to understand and compare whether and how both legal systems solve the conflicts by compatibilizing the protection of the climate with other environmental interests. The legal analysis focuses on land-use planning and environmental licensing, assessing similarities and differences, and evaluating the results, identifying what one country can learn from the other.
Author(s): Paula Galbiatti Silveira
Publisher: Springer
Year: 2022
Language: English
Pages: 299
City: Cham
Foreword
Acknowledgments
Contents
List of Acronyms and Abbreviations
List of Figures
List of Tables
Chapter 1: Contextual and Legal Background
1.1 Energy and Climate Changes
1.1.1 Climate Changes: Scientific Background
1.1.2 Climate Protection and the Energy Sector
1.2 Legal Framework
1.2.1 Climate Protection Through Renewable Energy Sources in International Law
1.2.2 Climate Protection Through Renewable Energy Sources in Brazilian and German Law
1.2.2.1 Legal Commitments for Climate Protection Through Renewable Energy Sources in Brazil
1.2.2.2 Legal Commitments for Climate Protection Through Renewable Energy Sources in Germany
1.3 Theoretical Framework
1.3.1 Carbon to Low-Carbon Economy: Old Conflicts in the Business-as-Usual Approach
1.3.2 Energy Efficiency and Sufficiency: Energy for What and to Whom?
1.4 The Energy Transition
1.4.1 Concept and Challenges of the Current Energy Transition
1.4.1.1 General Definitions of Energy Transition
1.4.1.2 Energy Transition in Brazil and Germany
German Energiewende
Energy Transition in Brazil
1.4.2 Critics of the Current Energy Transition
References
Chapter 2: Purpose of the Work and Comparative Approach
2.1 Introductory Aspects
2.1.1 Research Question
2.1.2 Answering the Research Question
2.1.3 Objectives
2.1.4 Justification
2.2 Limiting the Scope
2.2.1 Electricity Sector
2.2.2 Definitions
2.3 On the Comparative Approach
2.3.1 Why Comparing Brazil and Germany
2.3.2 The Functional Method
2.3.3 Research Steps
2.3.4 Limitations
2.4 Structure of the Work
References
Chapter 3: Promotional Systems for Renewable Energy Sources in Brazil and Germany: Consideration of Negative Effects in High-L...
3.1 Introduction
3.1.1 High-Level Planning and Impacts Management
3.1.2 The Importance of Promotional Instruments for the Energy Transition
3.2 Electricity Production and Transmission in Brazil and Germany
3.2.1 The Share of Renewable Energy Sources in Brazil
3.2.2 The Share of Renewable Energy Sources in Germany
3.3 Environmental Concerns and the Consideration of Side Effects on High-Level Energy Planning in Brazil and Germany
3.3.1 High-Level Energy Planning in Brazil
3.3.1.1 National Energy Plan 2050: PNE 2050
3.3.1.2 Decennial Expansion Energy Plan: PDE 2030
3.3.2 High-Level Energy Planning in Germany
3.4 Promotional Instruments for Renewable Energy Projects in Brazil and Germany
3.4.1 Overview of the Legal Framework
3.4.2 Legal Framework for the Promotion of Renewable Energy Sources in Brazil
3.4.2.1 Public Policies for Ethanol as Inaugural Promotional Instruments
3.4.2.2 Promotional Instruments for the Generation of Electricity from Renewable Energy Sources in Brazil
Incentive Program for Alternative Sources of Electricity (Proinfa)
Net-Metering and Electricity Compensation System (SCEE)
3.4.3 Legal Framework for the Promotion of Renewable Energy Sources in Germany
3.4.3.1 The Renewable Energy Directive as the Basis for the German Promotional System of Renewables Energy Sources
3.4.3.2 Promotional System for Renewable Energy Sources in the EEG
Promotional Instruments in the EEG 2021
Priority Grid Connection for Electricity Generation from Renewable Energy Sources
Feed-in Tariffs (FiTs)
Feed-in Tariffs for Solar Energy
Feed-in Tariffs for Wind Energy
Feed-in Tariffs for Hydropower
Feed-in Tariffs for Biomass
Consideration of Negative Effects in the Erfahrungsbericht
3.4.4 Summary: Promotional Instruments to Increase the Share of Renewable Energy Sources and the Influence of Side Effects
3.5 Summary of the Chapter
References
Chapter 4: Internal Environmental Conflicts in the Electricity Generation from Renewable Energy Sources
4.1 General Technical Aspects and Side Effects of Renewable Energy Sources
4.1.1 Introduction
4.1.2 How Renewable Energies Work
4.1.3 Co-Benefits of Renewable Energy Sources
4.1.4 Negative Impacts Hindered in the Energy Transition Discourse
4.2 Assessment of Side Effects in Concrete Renewable Energy Projects in Brazil and Germany
4.2.1 Solar Energy
4.2.1.1 Impacts of Solar Energy in Brazil
4.2.1.2 Impacts of Solar Energy in Germany
4.2.2 Wind Energy
4.2.2.1 Impacts of Wind Energy in Brazil
4.2.2.2 Impacts of Wind Energy in Germany
4.2.3 Hydropower
4.2.3.1 Impacts of Hydropower in Brazil
4.2.3.2 Impacts of Hydropower in Germany
4.2.4 Biomass Energy
4.2.4.1 Impacts of Biomass in Brazil
4.2.4.2 Impacts of Biomass in Germany
4.3 Assessment of Connected Impacts from Renewable Energy Sources: Transmission and Storage
4.3.1 Transmission Grids
4.3.2 Fossil Fuels Backup and Energy Storage
4.4 Internal Conflicts in Environmental Law: Climate Protection and Other Environmental Interests
4.4.1 Internal Conflicts in Environmental Law in Brazil and Germany
4.4.2 Case Study: Climate Versus Biodiversity Protection
4.5 Summary of the Chapter
References
Chapter 5: Legal Framework for the Resolution of Internal Conflicts in Land-Use Planning for Renewable Energy Projects in Braz...
5.1 Conflicts Resolution in the Concrete Level of Decision-Making: Land-Use Planning
5.1.1 Introduction
5.1.2 Overview of the Legal System for Land-Use Planning in Brazil and Germany
5.2 Land-Use Planning in Brazil and Competition Between Renewable Energy Projects and Other Land Uses
5.2.1 The Legal System of Land-Use Planning in Brazil
5.2.2 General Principles and Guidelines for Land-Use Planning in Brazil
5.2.3 Instruments for Concrete Level of Decision-Making on Land-Use Planning in Brazil
5.2.3.1 Master Plan
5.2.3.2 Ecological-Economic-Zoning (ZEE)
5.2.4 Criteria for the Resolution of Conflicts in Land-Use Planning
5.2.4.1 Assessments of Potential Impacts
5.2.4.2 Environmental Protection as Constitutional and Legal Limits for Land-Use Planning
Constitutional Environmental Requirements
Nature Protection Law Limiting Land-Use Planning
The National System of Nature Conservation Units
Protected Areas in the Forest Code
Restrictions in the Atlantic Forest Biome
5.2.4.3 Analysis of Priorities and Conflicts Between Different Land Uses
5.2.4.4 Analysis of Conflicts Between Renewable Energy Projects and other Land-Uses in Local Planning
Internal Conflicts in the Master Plan of Curitiba
Internal Conflicts in the Master Plan of São Paulo
5.2.5 Summary: Weighing Up Environmental Interests in Land-Use Planning in Brazil
5.3 Land-Use Planning in Germany and Competition Between Renewable Energy Projects and other Land Uses
5.3.1 The System of Land-Use Plans in Germany
5.3.2 Objectives and Basic Principles in Higher-Level Spatial Planning (Raumordnungsplanung) in Germany
5.3.3 Local Land-Use Plans: Master and Zoning Plans
5.3.3.1 Master Plan (Flächennutzungsplan)
5.3.3.2 Zoning Plan (Bebauungsplan)
5.3.4 Criteria for the Solution of Conflicts in Land-Use Planning
5.3.4.1 The Obligation of Weighing Up (Abwägungsgebot)
5.3.4.2 Priority and Reserve Areas for Renewable Energy
5.3.4.3 Nature Protection Limits for Land-Use Planning in Germany
5.3.5 Summary: Compatibility Between Climate Protection Through Renewable Energy Sources and Other Environmental Interests in ...
5.4 Strategic Environmental Assessment (SEA) as an Instrument to Deal with Conflicts During Energy Planning
5.4.1 The Gap in the Legal Framework for Assessing Impacts through SEA for Land-Use Planning in Brazil
5.4.2 Legal Framework for SEA in Germany and Practice for Renewable Energies
5.5 Summary of the Chapter
References
Chapter 6: Legal Framework for the Solution of Internal Conflicts in the Environmental Licensing Process of Renewable Energy P...
6.1 Conflicts Resolution in the Concrete Level of Decision-Making: Project Licensing
6.2 Legal Framework for the Environmental Licensing Process of Renewable Energy Projects in Brazil
6.2.1 Summary of the Federal Legal Framework for the Environmental Licensing Process and Environmental Impact Assessment (EIA)...
6.2.1.1 Description of the Environmental Licensing Process at the Federal Level in Brazil
Definitions Under LPNMA
Activities Subject to Environmental Licensing
Three-Phased Model
Procedural Steps
6.2.1.2 Environmental Impact Assessment (EIA) and Report (RIMA)
Elaboration and Content of the EIA
Public Hearing
6.2.1.3 Additional Types of Environmental Licenses at the State Level
6.2.1.4 Debated Aspects of the Environmental Licensing Process in Brazil
Simplified Procedures for Activities of Lower Impact
Public Participation
Elaboration of the EIA/RIMA
Drafts to Change the Federal Environmental Licensing System
6.2.2 Specific Regulations for the Environmental Licensing of Renewable Energy Projects
6.2.2.1 Simplified Environmental Licensing for Electricity Production with Low Impact Potential
6.2.2.2 Description of Specific Regulations for Renewable Energy Projects
Solar Energy
Wind Energy
Hydropower Plants
Biomass Energy
6.3 Balance of Interests in Decision-Making Within the Licensing Process of Renewable Energy Projects in Brazil
6.3.1 Limitations in Nature Protection Law to the Environmental Licensing of Renewable Energy Projects
6.3.2 Environmental Compensation of Impacts that Cannot be Prevented
6.3.3 Balance of Interests in Decision-Making: the Concepts of Public Utility and Social Interest
6.3.4 Balancing Interests in the Environmental Licensing Process of the Belo Monte Hydropower Plant
6.3.5 Weighing Up Interests in the Environmental Licensing Process of Renewable Energy Projects in Brazil
6.4 Legal Framework for the Environmental Licensing of Renewable Energy Projects in Germany
6.4.1 General Requirements for Environmental Licensing and Environmental Impact Assessment in Germany
6.4.1.1 Description of the Environmental Licensing System in Germany Under the BImSchG
Definitions in the BImSchG
BImSchG-License
6.4.2 Formal and Simplified Environmental Licensing
6.4.2.1 Formal Environmental Licensing (Förmliches Genehmigungsverfahren)
6.4.2.2 Simplified Environmental Licensing (Vereinfachtes Genehmigungsverfahren)
6.4.3 Environmental Impact Assessment: UVP
6.4.3.1 Activities Subject to the UVP
6.4.3.2 The Process of the UVP
6.4.4 Applications of the Licensing Regime to Renewable Energy Projects
6.4.4.1 Solar Energy
6.4.4.2 Wind Energy
Onshore Wind Energy
Offshore Wind Energy
6.4.4.3 Hydropower
6.4.4.4 Biomass Energy
6.5 Highlighting the Core Balancing in Licensing in Germany: Renewable Energy Versus Nature Protection
6.5.1 Looking from Nature Protection to Renewable Energy Sources
6.5.1.1 Deterioration of Natura 2000 Sites
6.5.1.2 Compensation for Interferences with Nature
6.5.2 Looking from Renewable Energy Sources to the Protection of Nature and Other Public Interests
6.5.3 Exemplary Court Cases Balancing Wind Energy Installations Against Nature Protection
6.6 Summary of the Chapter
References
Chapter 7: Comparative Analysis and Results for the Resolution of Internal Conflicts in Land-Use Planning and Environmental Li...
7.1 Socioeconomic and Legal-Cultural Context
7.1.1 Similarities Concerning Socio-Economic and Legal-Cultural Contexts
7.1.2 Differences Concerning Socio-Economic and Legal-Cultural Contexts
7.2 Comparison and Evaluation: Cross-Cutting Issues and Performance of Brazilian and German Law Regarding Internal Environment...
7.2.1 Discretionary Margins and the Fair Weighing up of Concerns
7.2.1.1 Discretionary Margins for Decision-Making
7.2.1.2 Principle of Fair Weighing Up of Interests
7.2.2 Assessment of Environmental Impacts in Planning and Licensing of Renewable Energy Projects
7.2.3 Consideration of Alternatives
7.2.4 Compensation for Impacts
7.2.5 Public Participation
References
Chapter 8: Conclusions and Final Remarks
8.1 How to Compatibilize Climate Protection with Other Environmental Interests in Developing Renewable Energy Sources?
8.2 Lessons Learned from Brazil and Germany
Table of Legislation
Brazil
Federal Legislation
State Legislation
Bahia
Cear
Paran
Municipality of Curitiba
Rio de Janeiro
Santa Catarina
São Paulo
Municipality of São Paulo
Germany
Federal Legislation
State Legislation
Bremen
European Union Law
International and Regional Conventions
Table of Cases
Brazil
Brazilian Supreme Federal Court (Supremo Tribunal Federal-STF)
Superior Court of Justice (Superior Tribunal de Justiça-STJ)
State Courts
Other Courts
Germany
Federal Administrative Court (Bundesverwaltungsgericht-BVerwG)
Lower Saxony Higher Administrative Court (Oberverwaltungsgericht (OVG) Niedersachsen)
Other Courts
International Courts
