Regulations concerning the use of land and water areas

The basic resource management provisions in the Environmental Code include general provisions for assessing different land-use interests. However, they also provide legal 'protection' for areas related to certain interests of particular importance to the public interest (e.g. areas particularly suitable for energy production, nature conservation and/or recreational activities).

The weighting provisions are formulated quite broadly. They thus provide much room for different interpretations regarding the legal application, as well as the actual content, of the provisions. For instance, the main rule that 'priority shall be given to use that promotes proper management from the public interest point of view' merely implies that:

• a long-term perspective should be applied on all land- and water-use issues;

• the interests of the public should take precedence over any private interests, although a combined use should always be considered.

'Wherever' possible, the legally 'protected' areas should be protected against activities that may significantly affect or damage the character of an area or are prejudicial to its use. The protection is, however, relatively weak. Since areas may be 'suitable' for more than one purpose, the basis for the assessment is the very vague general rule quoted above. At best, areas may be designated as 'national interests' for wind power production, implying that the areas shall be protected against (in this case) prejudicial (i.e. constraining) activities.

Our analyses of case law confirm that the prerequisites for wind power development provided by the basic resource management provisions are unpredictable regarding the possibility of averting obstructive activities and of (explicitly) promoting wind power (SSderholm et al, 2007). For energy policy purposes, this implies that there exists a need to strengthen the weight given by designating areas as of national interest. Whether an area is, in fact, of national interest for the designated purpose is ultimately, however, a matter for the court to decide; government agencies cannot make legally binding decisions on this issue. All considered, it is difficult to foresee to what extent wind turbines will be granted permission, and this vagueness adds to the uncertainties faced by an investor.

The Swedish Environmental Code also outlines special resource management provisions. These protect geographically delineated areas from exploitation and environmental interferences due to their natural and cultural values. Such an area is, in its entirety, of national interest, which implies that the weighting has already been made and that, in a competitive situation, precedence should be given to the protected interests. Wind turbines can only be developed in these types of areas if they meet no hindrance by the area provisions and do not significantly damage the protected values. In the assessment of the latter impacts, the total natural and cultural values are in focus. Thus, even if parts of the protected areas were to be significantly damaged by a specific activity, the rule may not prevent this activity unless the total values of the area are affected.

There are, however, some exceptions to this general prohibition. They generally apply to the development of existing urban areas and the local industry. Wind turbines may be of interest in such cases if providing electricity to new residential areas, retail trade and smaller industries, and/or by providing employment opportunities in the establishment and operation phases. Still, our case law analyses show that, in these cases, the management provisions leave the authorities with significant discretionary power.

As noted, wind turbine development is also subject to the 'localization' rule, under which requirements regarding the selection of sites can be brought upon operators. The localization requirement has provided an important obstacle to wind turbine development in Sweden on several occasions. Two issues are of particular concern. First, for permanent (in contrast to temporary) activities, the selected site must be suitable with regard to the objectives of the code and resource management provisions. Second, for all activities, sites must be selected so that the purpose of the activity is achieved with 'a minimum of damage or detriment to the environment'. In controversial cases, the latter requirement obliges the operator to undertake an objective assessment of alternative sites. This may, in some cases, imply a very stringent - and even inefficient - obstacle towards installation. The owner of the turbine may not have access to any other site than the chosen one; but if another site is found to better achieve the purpose of the activity from an environmental point of view, a permit cannot be issued unless the costs for altering the location are found unreasonable.

Wind projects in water areas are subject to additional Environmental Code provisions: 'Water operations may only be undertaken if the benefits from the point of view of public and private interests are greater than the costs and damages associated with them.' This social cost-benefit rule has been applied in favour of offshore wind projects, and case law analysis shows also that the Environmental Court of Appeal regards the state subsidies granted to wind power as benefits from the public's perspective in the weighting process. The subsidies are said to reflect the implicit value of attaining an increased share of renewable energy. The government has also explicitly expressed support for this legal interpretation. This could prove to be important for the future of offshore wind power in Sweden since it illustrates how the wind energy interest - as a means to achieving national policy objectives - can be visualized at the implementation stage and weighted against local impacts. Similar legal approaches are, however, lacking in the case of onshore wind power.

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