Tillståndsprocessen för havsbaserad vindkraft - en flaskhals som hindrar utbyggnaden av förnybaraenergikällor?

Sammanfattning: In light of the energy crisis and the aim to invest in renewable energy, offshore wind power has received an increased attention. The elevated status of investments in offshore wind has pointed out the problems with the legal process, which so far hasn’t - at least not in the case of establishment outside Swedish territory - been applied to aparticularly large extent. When wind power is to be established offshore instead ofonshore, an extensive and complicated permit process occurs. It takes approximately 7 to 10 years before an operation receives all the required permits, which is to be considered a bottleneck for the expansion of renewable energy production accordingto the industry. The legal system derived complexity due to a division of maritime zones in accordance with international law, which means that there is one regulatory framework for Sweden’s territorial seas and another for Sweden’s Economic zone. This essay showsthat the legal process for offshore wind within Sweden’s territorial seas includes a variety of permits and permit-like rules, which however, are coordinated relatively satisfactorily. The procedure usually results in at least a four-fold permit process: (1) Aprocess to receive a license for investigations by the continental shelf from the Geo-logical Survey of Sweden or the government. (2) A process to receive an environmen-tal permit and a permit for water activities by the Land and Environmental Court for the construction and the cables in the water. At this stage, the court can also givedispensation from the protection of species and the shoreland and give permit for impacts on a Natura 2000 area. (3) A process to receive concession from the Swedish Energy Markets Inspectorate and (4) A process to receive permit for laying cables atthe continental shelf by the government. In addition, further permits may be required by other authorities, such as approval to operate in the area, approval for utility ease-ment and a license to affect an ancient monument or to handle geographically sensitive information. There are a fewer number of applicable permits and permit-like rules in the Economic zone than in the territorial seas, however, the legal process is however lesscoordinated. The permitting processes usually results in at least a five-fold permit process:(1) a process to receive a license for investigations by the continental shelf from the 6Geological Survey of Sweden or the government measures, (2) a license for a commercial construction by the government, (3) a process to receive concession from the Swedish Energy Markets Inspectorate (4) a process to receive a permit for water activities by the Land and Environmental Court for laying cables in the water and (5) aprocess to receive permit for laying cables at the continental shelf by the government. Further permits may be required by other authorities for approval of utility easement by the Land Survey authority and permits in accordance with the Birds and Habitats Directives by the relevant County Administrative Board. The multi-step process is one reason to why it can take up to 10 years for an offshore wind project to obtain all the required permits. A need for new trials due toupgrades and modernizations within a project is another. The technology in the field of offshore wind power is under constant and rapid development, which, in combination with its long and complex authorization process, creates a situation where operators need to reconsider, change or extend their existing permit even before thefacility has been built. The procedure to go to litigation with only the changed conditions is uncertain, at least in Sweden’s territorial seas. This means that most projects in the upgrading-process apply for a new permit instead of a changed one. Current law encompasses many uncertainties and inefficiencies. The permitting process does not give an operator exclusivity to the area which creates a lack of legal certainty due to a concern for overlapping projects. A municipalities’ veto can stop aproject at any time during the trial, which creates unpredictability for business operators and can contribute to unnecessary resources being put into a project. The court can turn down a granted network concession since it does not come with legal forceagainst the partially overlapping Environmental Code. The system contributes to uncertainty and contributes to a time-consuming double consideration of important sections in the Environmental Code. In conclusion, three solutions are presented thatmay contribute to an increased legal certainty and efficiency of the system; (1) Implement a rule that specifies the exclusivity of the Electricity Act vis-à-vis the Environ-mental Code, (2) allow cumulation in the governments trials and finally (3) Consider an auction-based system where exclusivity can be ensured in accordance with other EU-countries.