Is the corona crisis going to cause problems for the timely application of SDE++?

The corona crisis affects our society as a whole; the sustainable energy sector is no exception. The Dutch Renewable Energy Association has carried out an inventory among its members, which shows, among other things, that there are fears of a delay in the granting of permits for new projects and the feasibility of the realisation period under the SDE+ subsidy decision. In addition, delays in the establishment of the Regional Energy Strategies (RES) should be avoided as far as possible.

Text: Erwin Noordover, Lawyer, ENVIR Advocaten

Impact on all development stages
Possible consequences of the corona crisis for new wind projects can occur at any stage of development: during decision-making by the government, the appeal procedure before the administrative courts or the construction phase. At the start, the intended participation process with local residents can no longer take place physically; online tools can nevertheless facilitate this. This also applies to the preparatory discussions with public authorities: consultations with government officials can take place via digital tools. This in any case makes it possible to discuss (draft) applications and environmental studies, so that developers can continue their preparation of new projects.

Physical accessibility to (draft) decisions
Risks for delay become more acute after applications have been submitted and (draft) decisions have to be made. The drawing up of zoning plans and permits can hopefully be taken up by officials working from home, and here too much can be discussed via online meetings. But when (draft) decisions are made available for public review, a problem can arise if the town hall or provincial hall is closed. Documents that are available for review must be physically accessible to interested parties, and it is precisely this physical accessibility that is endangered by the corona measures. The most practical solution here is to make documents physically accessible by appointment, in order to prevent an administrative court from annulling decisions due to this omission.

Delay in decision making
Another issue arises when administrative bodies have to take formal decisions. In principle, the meetings of colleges and councils for voting on decisions can take place, whether or not adapted to circumstances such as maintaining sufficient mutual distance. The Digital Emergency Response Act can also help here by making it easier to hold online council and committee meetings. Unfortunately, many governments have adjusted the agendas of colleges and councils in response to the corona crisis and there is a real risk of delay because no zoning plans are adopted or environmental permits are granted. However, this delay is unnecessary and can hopefully be avoided or mitigated in consultation with the authorities concerned.

The aforementioned risk for delay in permitting will create problems for subsidy applications in the autumn round of the new SDE++. The start of the subsidy has been announced for the end of September this year. The longer the corona measures are in force, and depending on the attitude of the various municipal and provincial authorities, there is a risk that various developers will not receive an environmental permit in time for an application for subsidy under the SDE++.

Possible solutions
A first solution is to postpone the opening of the autumn round depending on the duration of the corona measures; the sector will have to raise this with the national government. The second solution has already been mentioned: a flexible attitude of all parties involved in the realisation of wind projects is necessary in order to keep time loss to a minimum. A great deal remains possible through the use of digital tools and if governments continue to take practical decisions, the corona crisis does not have to have major consequences for the energy transition.

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