Everyone imagined 40 wind turbines 500 metres from their home. the state failed to communicate, says lawyer

Just two years ago, it seemed that Czechia would finally unblock the construction of wind and solar power plants. Today, according to lawyer Pavel Doucha, who represents both investors and municipalities, negative opinions are once again becoming more frequent, agreements with developers are being cancelled and permitting processes are running into old and new obstacles.

Why is the permitting of wind and solar power plants becoming more complicated again? What role does disinformation play, and why are acceleration areas a missed opportunity? Pavel Doucha discusses all this in an interview with Ekonews.

“When designating the zones, the state did not verify at all where projects were already under preparation,” says a partner at the Doucha Šikola advokáti law firm. Some municipalities are therefore in a situation where they are discussing the construction of wind turbines with an investor on one side of their cadastral area, while the state is now proposing an acceleration area on the other. An amendment to the Building Act is more likely to help speed up the construction of renewables, Doucha believes. But it is drawing criticism from all sides.

“Authorities apply stricter standards to wind turbines”

Have investors and developers of renewable energy projects felt the change of government last December?

We can narrow it down to wind and solar power plants – government policy has genuinely changed there compared with the previous government. The change is not as significant in other energy sectors. Our law firm helps developers obtain permits for renewable energy facilities, but also municipalities that partner with developers and want to have a say, for example, in the siting and number of wind turbines. And we see that the change is quite pronounced, perhaps surprisingly specific.

What does it consist of?

Where there had previously been a constructive dialogue between a municipality and an investor, in many cases the municipality now wants to end that dialogue or revoke its previous commitments to the investor. If cooperation agreements or planning agreements have been concluded, there is a risk that they will be cancelled.

The second change concerns permitting processes. In recent months, we have seen that where the law gives authorities a certain degree of discretion as to whether to permit a project or not, negative attitudes towards projects occur more often than before. Negative binding opinions and negative unified environmental opinions are being issued, using grounds that we had seen less frequently in recent years.

For example?

For instance, if you want to withdraw agricultural land, even temporarily, for a solar power plant, the law requires you to justify why no other site can be used for the project. You should explain why there is no alternative, which is a very broadly defined concept. So you write: I want to build a solar power plant precisely here because there is an option to connect to the distribution grid here and nowhere else. You state that you have an agreement with the landowner, and that it is lower-grade agricultural land and there is no other more suitable plot nearby. Yet it now happens that the application is rejected anyway, with the authority writing that you have not demonstrated the alternatives. For example, that you are unable to place the same installed capacity on roofs in a nearby municipality, or conversely on land entirely outside the locality, in another municipality.

Another provision of the law that depends more heavily on officials’ interpretation is the protection of landscape character. Recently, more than before, I have encountered cases where an authority rejects the conclusions of an impact study on landscape character and says that, in its view, the impact is unacceptable.

I heard about the planned Věžky wind project in the Kroměříž area. Permitting stalled because the wind turbines would be visible from the church tower in Kroměříž, thirteen kilometres away. Yet housing estates can already be seen from the church tower.

There are more cases like this that sound absurd. Especially when you compare them with other areas of construction. No one deals with whether a motorway can be seen from the church tower of a nearby municipality. But authorities apply stricter standards to wind and solar power plants. And this correlates with the change in the government’s approach to these types of renewables, so I think there is some connection.

So political rhetoric has a direct impact on how authorities decide?

I think that authorities are often staffed by people who may have views on what should and should not be built. And when they observe a change in the government’s approach, they feel they have stronger backing to issue a negative opinion if they do not want the project.

Regardless of the current government, how is Czechia doing generally in building renewable energy sources?

Developments in Czechia can be divided into three stages. The first was the solar boom of 2007 to 2010, when many solar power plants were built, followed by a slowdown. Solar plants were not being built, as the technology was so expensive that it made no economic sense without the cancelled subsidies. And wind turbines were not built because it was simply impossible to permit them. We have clients who have been waiting fifteen to twenty years for permits, which is longer than the permitting of a nuclear power plant is likely to take. These stories are full of absurdities.

For example, before our client has gone through all the permitting stages, the wind turbine manufacturer stops producing the turbine type for which the permitting process was designed. The client must therefore take the technical data for a new turbine type and update all binding opinions, the consent for impacts on landscape character, noise studies and so on. And this may happen three times over those 20 years, because wind turbine technology keeps advancing.

The change came around 2020. Technology prices, particularly for solar power plants, fell dramatically, and new support instruments arrived – the Modernisation Fund for solar and auctions for wind turbines. The frozen atmosphere in permitting processes began to thaw. This was further accelerated by the energy crisis in 2022, when the government said: Yes, we need renewables; it is no longer just a matter of decarbonisation, but also of energy security. Particularly in the case of wind turbines, there was suddenly a greater willingness on all sides to see the processes through to completion.

Do you mean on the municipalities’ side as well?

Today, there is essentially no wind farm project that would have a chance of being implemented without some form of investor-municipality cooperation set out in a contract. Put simply, projects are not prepared against a municipality’s wishes. And municipalities are becoming very self-confident partners for investors. They have discussed among themselves what compensation can be sought for power plant construction. In some cases, they even organise tenders for investors, who compete with one another over who can offer municipalities better terms.

Meetings opposed to wind turbine construction are now increasingly being held in village pubs and community halls. Disinformation is spread there about the health impacts of noise. What can an investor do about it?

When an investor enters a locality today, they should have a communications strategy prepared for local people, including actively answering questions about noise from wind turbines. I consider it a mistake that the state is not involved at all in debunking myths about wind turbines. It washes its hands of it.

In Poland, for example, the Prime Minister’s Office and the Ministry of Energy address disinformation in energy. Here, the sector has no choice but to fill that role. The Modern Energy Association recently launched an initiative called New Energy for Czechia, which is intended, among other things, to counter disinformation about wind and solar power plants.

At anti-wind meetings, speakers often urge citizens to litigate. What should a mayor do if they support the development and people in the village are threatening to sue them?

Mayors can find themselves in very difficult, almost unsolvable situations. Myths about wind turbines play on fears for people’s health, and in such situations people do not always behave rationally. It can completely destroy good relations in a municipality. With local consent, a mayor concludes a cooperation agreement with an investor. Subsequently, a group of citizens influenced by false myths about wind turbines files a proposal for a local referendum. If the referendum then goes against the project, the mayor finds themselves in a legal trap. Does the referendum result take precedence, or does the signed contract? There is no legal solution to that. Not even the Constitutional Court has said whether a municipality should follow the contract or the referendum. If the mayor gives priority to the will of citizens, they face a damages claim from the investor.

But this is not limited to wind turbines; we know such cases from other areas too. For example, in Opatovice nad Labem, citizens rejected the construction of an industrial hall in a referendum, although the investor had already bought land worth tens of millions of Czech crowns. Compensation for damages is now being addressed.

Disinformation spreaders also often cite a court case from France. The court awarded compensation to elderly people because a wind turbine disturbed them, or rather caused them health problems.

This is a famous French judgment based on the fact that a higher level of infrasound was measured in that specific case. But it is an entirely isolated matter. There are other cases, including from France, in which people have sued investors. However, they ended in the investors’ favour.

Cases where an investor has to pay citizens because a project has already been built and there is a noise issue are very isolated, and in my view they will remain so. Every project is preceded by a noise study, which in the overwhelming majority of cases ensures that projects exceeding noise limits are not built.

“Sometimes reform is needed”

How do you view the debate on designating acceleration areas in Czechia?

I am afraid that the way we have approached the creation of acceleration areas in Czechia makes them more of a missed opportunity. I have serious doubts about whether they will speed up permitting processes.

Why not?

First, it is questionable whether zones should be declared at national level through a nationwide spatial plan. Regions and municipalities must then respect them without anyone discussing it with them. Since we have mentioned France, there, for example, acceleration areas are decided by departments, the equivalent of regions. They are required to designate a certain number of areas in their territory, but where the zones will be and exactly what they will look like is entirely up to them.

Second, no one explained to people that an acceleration area is merely an assumption that this type of development can be implemented there more easily. The permitting process will still take place. The only thing that will not need to be addressed in detail is the environmental impact assessment, because that was already carried out in preparing the particular acceleration zone. But noise studies will still be done. Even though acceleration zones were proposed to be at least 500 metres from protected outdoor areas of buildings, that does not mean the first wind turbine can be built right at the boundary of the acceleration zone.

Can people challenge the designated zones in any way, even if they are definitively approved?

If landowners and a municipality are dissatisfied, they can challenge the permit for a particular development. So an acceleration area does not automatically mean that projects will be built there. I have the impression that no one told municipalities or regions that. The state merely sent them a letter: Post information on your official noticeboard that it is possible to comment on the acceleration zone proposals. And that understandably caused an uproar, because everyone imagined that forty wind turbines would spring up 500 metres from their home.

Former director of the climate protection department at the Ministry of Environment Petr Holub says that while he was at the ministry, this was discussed with the regions. And that the regions said: You designate them instead; we have to be against it, but we will be glad if we do not have to designate them ourselves.

That seems rather evasive to me on the part of the regions. Their comments, as I can gather from the media and from our clients, are now strongly opposed. They often say they do not want any acceleration zones in their territory. It therefore appears that they did not want to bear responsibility for this step.

I think it is even a little more complicated. The regions now complain that this was not discussed with the affected municipalities, which Petr Holub also says is true.

I absolutely agree with that. There was no broader communication whatsoever about the whole issue beyond the requirement to publish a notice on the official noticeboard about the possibility of commenting on the proposed areas. Moreover, no one discussed with municipalities whether they were already preparing a wind farm in their territory with an investor. As a result, the proposed acceleration area often completely missed the location where advanced preparations for a wind farm were already under way in the municipality.

A municipality may have had an agreement with an investor for five years that four wind turbines will stand on the eastern side of its cadastral area. And now the state comes and says: There will be an acceleration area on the western side of your cadastral area, where twenty wind turbines could theoretically stand. The municipality then faces an unsolvable situation, because it does not want turbines on both the east and west sides. If the state had taken an interest in where projects were being prepared, they might have overlapped. An acceleration area would have been declared where both the municipality and the investor wanted wind turbines, and that would have been a win-win solution. But I do not actually know of such a case. It is always completely off target.

So how do you think it will ultimately turn out?

In my view, it is in the balance whether acceleration areas will be approved at all, whether the process will even be brought to completion.

But Czechia would then lose billions from the National Recovery Plan.

The law encourages the Czech Republic to approve acceleration areas, and above all so does the European directive. So even if money were not involved, the areas should be approved. But of course, member states sometimes have differing views on what directives require of them, and either do not do it within the timeframes envisaged by European law or do not do it at all.

There is another incentive: the money you mentioned. If the state decides it does not want those billions, or is willing to forgo them and breach European law, then there need not be acceleration zones at all. Even if it eventually approves them, the question is whether this will speed up projects in at least some cases, or whether it will be a typically Czech solution: we approved it only to obtain European subsidies.

But if anything has the potential to clarify and simplify permitting processes in Czechia, it is more likely to be the amendment to the Building Act than the declaration of acceleration zones.

But it is being attacked from all sides as an unbelievable mess that no one will read because it is more than a thousand pages long.

That is a “great” argument – that it is terribly long and no one will read it. It seems to me like giving up on understanding. Complex problems simply need to be studied. Some of the criticism of the Building Act amendment is certainly justified. For example, it is being approved as an amending proposal, meaning it did not undergo the standard consultation process.

It will be a huge intervention in how public administration functions. It will mean merging and changing the responsibilities of dozens of authorities, including moving hundreds and thousands of officials between individual authorities in order to create a unified system.

Logically, this meets resistance from many people. I think the real reasons for this resistance are more likely fears that it will affect the lives of many people than that it is a systemically bad solution. Of course, there are individual matters in the amendment that are worth discussing and perhaps should not be there.

So what will the Building Act amendment lead to in your view?

First, an independent system of building authorities will be created. They will not be subject to influence from regions and municipalities, which is a problem they have been criticised for for decades. Under the current system, a mayor can go to an official and tell them how to decide, because the official is a municipal employee. A separate system of building authorities will lead to greater professionalism and predictability in decision-making.

The second fundamental change is that the developer will no longer be like a little hen trying to fetch water for a rooster, running around all the authorities and collecting binding opinions. Nowadays, this seems completely unnecessary and humiliating to me. Why is this required of investors? Why could the building authority not assess it, once it is properly equipped with the relevant powers?

Is there not a risk that the level of environmental protection will decline when it is newly decided by the building authority instead of the environmental department?

No, because the building authority will, among other things, become an environmental protection authority. Its task will be to protect the environment just as that was previously the task of the environmental department. Qualified people must of course transfer there. If a single building authority has specialists in environmental protection, experts in public health and building permitting, they will be able to reach agreement more easily than when they communicated through binding opinions.

The question, however, is whether experts will want to transfer to the new authority. Surveys suggest that up to 70 percent of officials could leave.

Of course, writing a law is one thing and seeing it through to completion from a management perspective is another. We saw with the digitalisation of building proceedings that this is not a simple matter. The process will be complex, and it may turn out as former Soviet prime minister Chernomyrdin put it: We wanted the best, but it turned out as always.

Sometimes reform is needed. In the past, we likewise established regional authorities, the Office for the Protection of Competition and the Energy Regulatory Office. Those officials did not fall from the sky either; they had to transfer from somewhere. So we know that it is possible to implement something like this.

What should renewable energy developers focus on now, and what should they invest in?

I still hope that the current state of affairs is temporary. That means it is still worth preparing both wind and solar power projects, because I believe the state’s somewhat stepmotherly approach to these technologies will be overcome. The energy sector is currently experiencing a major boom in battery storage construction, but that may already be something that has passed its peak. The transformation of biogas plants is being prepared; until now, they have produced electricity and heat. In the future, they will produce biomethane from biogas, which will then be injected directly into natural gas distribution networks. Then there are technologies that currently have no economic visibility at all but will have it in the future, such as hydrogen production. All pathways need to be monitored, and the one that at a given time appears to make economic and technological sense should be accelerated.