Legal aspects to renewable energy production in marine areas and coastal zone. Prof. Sigrid Eskeland Schütz Faculty of Law University of Bergen

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1 Legal aspects to renewable energy production in marine areas and coastal zone. Prof. Sigrid Eskeland Schütz Faculty of Law University of Bergen

2 Photo: Sónia Arrepia Photography/

3 More than km coastline Wikipedia Commons

4 Decline in wilderness (more than five km from major infrastructure)

5 The coastal zone/marine areas are attractive for energy production

6 Renewable energy production Onshore and potential offshore windmill farms. Osmosis power plants (experimental stage). Can be located wherever fresh water runs into the sea, provided salt concentration is high enough and good freshwater quality. Wave-energy (experimental stage).

7 Installations and infrastructure require the use of land or marine space. Potential conflicts with outdoor recreation, transport, fishery, wildlife etc. Pelamis wawe power generator The Scottish Government Stakeholders differ according to whether the activity takes place on land, close to the shore or out in the open sea. The Norwegian legal framework for renewable energy production differ.

8 Contents Compare the legal framework for land/coastal zone and the legal framework for the sea The tiering of strategic planning with project concessions land and sea respectively The crosscutting ecosystem approach

9 Common management principles Sustainable development Integrated coastal zone management Ecosystembased management Knowledge-based management Impact assessment Cumulative impacts, holistic approaches Access to information Public participation

10 A legal framework for land/coastal zone and another for the sea Land: 2008 Planning and Building Act (PBA) Municipality Councils and County Councils Landward of the baselines to one nautical mile out to sea Sea: 2010 Off-shore Energy Act State Norwegian Water Resources and Energy Directorate Seaward side of the baselines, jurisdiction as follows from international law

11 Straight baselines, 1982 UNCLOS Sec. 5 and 7. Vestfjorden Nordland, Wikipedia.org

12 Offshore wind power in Norway. Proposed areas for strategic environmental assessment

13 The general legal framework - land PBA Elected County (19) Councils Elected Municipality (428) Councils Delegated key tasks in land use management An essential part of self-government Decentralized power can fulfill the ecosystem approach, as the approach often will imply decentralization to the level of local communities. Source: Fifth Ordinary Meeting of the Conference of the Parties to the Convention on Biological Diversity, May 2000, Decision V/6, Sec. C, Operational guidance for application of the ecosystem approach. Zoning plan needed for industry-projects

14 Planning hierarchy and «objections» secure state interests State Region Municipality Sigrid Eskeland Schütz, UIB 2015, jur.fak. 14

15 Exceptions for energy projects -land Energy-projects have been a challenge. Important exceptions from following PBA. Problem: effective planning of the energy supply. Exceptions in leaves the 1990 Energy Act as the fulcrum for national or regional energy-power lines Foto: Bevar Hardanger AS Montasje: NRK

16 Exceptions for energy projects -land For energy production plants, both PBA and the Energy Act is applicable. An important exeption from the PBA, is that a zoning plan does not need to be developed for the plant. The Ministry can step in as planning authority. stord-fitjar.turistforeningen.no/

17 Exceptions cont. The Energy Act places the competence to accept energy projects like windmill farms with the central government, delegated to NVE. Still, the affected Municipality Councils have a strong position in the process, reflecting the importance of local self-government: The municipalities can object to a development consent. Unless NVE, after negotiations, takes the objection or appeal into account, the concession is sent to the central government Ministry for approval. See the Energy Act Sec. 2-1, paragraph 7.

18 The general legal framework - sea 2010 Off-shore Energy Act. Renewable energy production seaward of the baselines. No decentralized institutions for decisionmaking. No municipal or regional authorities. Concession from NVE is required for renewable energy projects.

19 Stakeholders On shore and coastal zone: The open sea: regions municipalities private owners of land, seabed or water column subject to private property rights no regions/municipalities no private owners marine stakeholders Map showing seabird colonies along the coast of the Skagerrak, North Sea, Norwegian Sea and Barents Sea with more than 1,000 breeding pairs. Offshore wind power in Norway. Proposed areas for strategic environmental assessment

20 Tiering strategic planning with project concessions The ecosystem approach might require new arrangements or ways of organization for institutions involved in decision-making. Fifth Ordinary Meeting of the Conference of the Parties to the Convention on Biological Diversity, May 2000, Decision V/6, Sec. B 6. Problem: Traditional licensing-procedures are inadequate in evaluating realistic alternatives for future development and in addressing cumulative impacts. [t]he issue of alternatives can only be properly assessed at the plan and programme level,see the preparatory works of the SEA-directive, Directive 2001/42/EC of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, see COM 96(511) p 5.

21 Tiering strategic planning with project concessions cont. Development: adaptation of more strategic and holistic instruments for management of areas and resourses, compared to the traditional (sectorial) licensing system. Characteristic: to have a vertical management hierarchy, which tiers strategic planning with downstream project concessions.

22 Tiering National strategy Regional strategy Project planning Sigrid Eskeland Schütz, UIB 2015, jur.fak. 22

23 Land Sea No national strategy Voluntary national process; 15 areas Voluntary regional plans Process for «opening of areas» Municipal planning/ NVE concession NVE concessions in opened areas

24 Offshore wind power in Norway. Proposed areas for strategic environmental assessment

25 Strategic planning Land Regional plans can be adapted in accordance with the PBA The elected County Councils in each of Norway's 19 Counties can develop thematic plans based on percieved regional planning needs. Some regions have taken the opportunity to develop such plans, not mandatory. The specific need; windmill parks requires large areas, often crosscutting municipal borders or being visible across them. The strategic plans build on relevant knowledge of infrastructure, cultural heritage, biological diversity (such as birdlife) and, of course, the wind itself. Regional plans are not decisive for the following municipal land use planning, nor for consents given by the NVE. The vertical management hierarchy is not strict. Neither regional windmill plans nor municipal master plans are decisive in relation to concessions given by the NVE in accordance with the Energy Act, but they could be grounds for the County, a neighboring municipality or affected national expert authorities for filing objections against the consent. Sea National strategy: In 2009, the Ministry appointed a group of representatives from State Agencies, led by the NVE, to delineate Norwegian maritime areas for the opening process, 15 areas suggested. The Off-shore Energy Act in a formal process for the opening of areas with a view to the granting of licenses. This has for many years also been the system for oil exploitation. The impact assessment sets out information relevant for the decision as to whether to open the area for activity. The areas are divided into areas that are recommended for opening now, not being opened due to existing technological situation, and areas that could be opened at a later stage. The decision to open not yet taken by the Government. The license can only be granted for projects like windmill farms, if they are suggested situated in areas formally opened for this activity. The vertical management hierarchy is thus strict, tiering strategic planning with downstream project concessions.

26 The crosscutting ecosystem approach Problem; the legislation shifts at the baselines. Legal lines drawn to define territorial borders (12 nautical miles). Should not hinder an ecosystem based approach to a specific problem being addressed. Norway has a deeply indented coastline, large marine areas within the PBA-system. Wind, birdlife and marine traffic nullify the relevance of baselines in the context of strategic management of marine windmill parks. The Off-shore Energy Act opens the possibility to include waters on the landward side of the baselines. In the process of opening areas for renewable energy production off-shore, several of the areas are in whole or partly placed inside the baselines.

27 The crosscutting ecosystem approach cont. The legislation is thus open for ecosystem based implications, as to see marine areas outside and inside the baselines in context. Offshore wind power in Norway. Proposed areas for strategic environmental assessment Regional plans for windmill farms established by the County Councils do not include projects in marine areas.

28 The end