Germany: BVerwG strengthens environmental associations - actions against deviations from regional plan objectives admissible

In its ruling of 28 September 2023 (BVerwG 4 C 6.21), the Federal Administrative Court ruled that a recognised environmental association can have a court review whether a deviation from the objectives of a regional plan violates environmental legislation. The court published this in a press release on its website.

Briefing

In this specific case, the municipality of Wölfersheim, located 40 kilometres north of Frankfurt am Main, had received a deviation from the objectives of a regional plan for the approval of a logistics centre. The action brought by the environmental association BUND, which applied for the deviation to be revoked, was initially dismissed by the Gießen Administrative Court (judgement of 23 January 2019 - 1 K 9645.17.GI) and on appeal to the Kassel Administrative Court (decision of 31 May 2021 - 4 A 610.19). Both courts were of the opinion that BUND could not take legal action against the municipality of Wölfersheim's decision to deviate from its objectives. This is because a decision to deviate from a target is not a decision relevant to environmental law and the environmental association can only take action against environmental law decisions under the UmwRG.

However, the Federal Administrative Court overturned the judgement and referred the case back to the Administrative Court. It stated that the decision on the deviation from the objectives was an admissible cause of action if an amendment to the regional plan should have been made instead of the deviation from the objectives. Whether this applies in this case and whether significant environmental impacts cannot be ruled out at the regional planning level must, however, be examined more closely by the Administrative Court. This is because it cannot be ruled out - in any case not from the outset - that a decision to deviate from objectives also affects environmental law concerns and that an environmental organisation could bring an action against the decision.

Consequences of the decision

The Federal Administrative Court has not yet substantiated its decision - an assessment of the reasons for the judgement is therefore still pending. However, it is foreseeable that the court's decision has significantly expanded the opportunities for environmental organisations to bring legal action. Now that the legislator has made it easier to deviate from regional planning objectives (we already outlined this in our Insight from 13 September 2023), the Federal Administrative Court's decision makes the deviation procedure potentially riskier - project developers should take this into account when developing or purchasing projects.

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