Conflict between Building Energy Law and Public Legal Protections: Climate Protection versus Heritage Conservation and Tree Protection

November 26, 2023 – The recent legal developments in the EU, particularly the stricter energy efficiency standards for buildings mandated by the EU Parliament in March 2023, have raised a complex legal issue in Germany: To what extent do public legal protections interact with or get superseded by the Building Energy Law?

Part of the EU’s “Fit for 55” climate package, the Building Energy Law aims to ambitiously reduce net greenhouse gas emissions by at least 55% by 2030 compared to 1990 levels. This includes comprehensive energy renovation of many properties to lower the significant share of buildings in EU energy consumption and greenhouse gas emissions. Particularly from January 2024 onwards, stricter regulations of the Building Energy Law will apply, mandating complete reliance on renewable energy for heating and extensive measures to increase energy efficiency, such as building insulation.

This raises questions about the relationship between these regulations and existing public legal protections. According to § 2 of the Renewable Energy Expansion Act (EEG), the construction and operation of renewable energy facilities are of paramount public interest. Consequently, the precedence of renewable energy must be considered in balancing decisions. A conflict arises especially where historical buildings are under heritage protection or tree protection is involved. For instance, according to § 9 Abs. 3 of the Heritage Conservation Act of North Rhine-Westphalia (DSchG NRW), energy efficiency measures can only be implemented if they do not conflict with heritage conservation interests or if there is an overriding public interest.

The challenge is to strike a fair balance between the requirements of climate protection and the preservation of cultural heritage and natural habitats. This is particularly relevant when, for example, photovoltaic systems on roofs are shadowed by large trees, affecting their efficiency. Current tree protection statutes do not yet provide clear exceptions for such cases, which may need to be handled differently in the future due to the provisions of § 2 EEG.

The Building Code of North Rhine-Westphalia has already undergone adjustments due to the Building Energy Law, including facilitations for wind energy plants in commercial and industrial areas and for heat pumps. Additionally, a new regulation allows for the fulfillment of the PV obligation on roofs through alternative installation options on other exterior surfaces of the building.

Despite these adjustments, the legal tension between climate protection and other public legal interests persists. Each case still requires careful examination to determine which legal interest prevails. This ongoing legal uncertainty demands from property owners and authorities a careful balance and a high degree of legal acumen.