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Legal issues to be clarified in a pilot project

Within the framework of the present feasibility study, the legal questions surrounding the Energy Bands could not be answered, but the subject areas that must be dealt with at the start of their implementation were defined. In addition, initial assessments were made where possible:

Building permit - development plan - ban on high-rise buildings along the highway: Due to the privileging of PV ground-mounted systems along highways (December 2022) and the decision to accelerate approval procedures for PV and wind power (January 2023), it should be possible to implement Energy Bands rather quickly. With regard to the ban on high-rise buildings, comparable facilitations for special permits should apply, following the example of the E-Highways in Germany.

EIA obligation - lawsuits: Since Energy Bands are located directly in polluted areas due to their location on the highway, their extraordinary contribution to environmental and climate protection as a PV system with a significantly lower negative albedo effect should offset any potential environmental impact.

Critical infrastructure - safety: Energy Bands will be regarded as critical infrastructure at the latest when they grow together to form the “Energy Internet” for Germany and Europe. The safety of the control system and the components must be ensured, as must operational safety, especially in the event of accidents. Here, we can draw on the experience of the e-highways in Germany and, if necessary, from the rail transport close to the federal trunk roads.


Does the operation of Energy Bands require a building permit according to the respective state building law?

Even though the approval procedures differ from state to state, as a rule only photovoltaic systems

on buildings still do not require a building permit.


However, in Janaur 2023 the cabinet presented a draft for accelerated approval procedures for photovoltaics and wind power: The approval process for most photovoltaic plants is thus to be shortened to three months. This could also come into play for Energy Bands.

Are Energy Bands privileged in outdoor areas or do they need a development plan for each section?

Since 01.01.2023, ground-mounted PV systems on an area along freeways have been subject to privilege (new § 35 para. 1 no. 8 letter b) BauGB).

The privileged status means that these facilities are generally permissible under building planning law without the need for a development plan (Section 35 (1) BauGB).

This is justified by the fact that these areas are already characterized by visual, acoustic and contaminated pollution. 


Does the ban on high-rise buildings at certain distances from federal trunk roads (Section 9 FStrG) affect permits?

It can be assumed that Energy Bands are not considered high-rise structures in the strict sense: Similar to e-highways, which also run directly along the highway with pole structures, special permits should also be possible for Energy Bands.


Even for high-voltage lines on the median strips of highways, a concept proposal was submitted as part of the consultation process for the network development plan (NEP 2024).

Is the construction of Energy Bands subject to Environmental Impact Assessment (EIA)?

Even if there is an EIA obligation in certain regions depending on the length and thus power of Energy Bands, it is expected that this should be able to be fulfilled quickly and thus without impediment to rapid implementation:


1.The Energy Bands represent significant relief for unsealed open space, which would otherwise be covered with PV modules instead: When fully developed along interstate roads and highways, this represents 900 to 1000 square kilometers of land relief, installed elevated along highways instead of covering up open space.


2.Energy Bands are located on strips directly adjacent to highways and federal roads, i.e. areas that are already considered disadvantaged areas, contaminated by noise and pollutants from traffic. Even without requiring compensatory measures in the course of an EIA, positive additional measures should therefore be considered in the course of their installation, such as planting bushes between the poles, which would create a protective wall for crossing game and small animals. Supplemented by amphibian passages and small animal tunnels, the installation of Energy Bands can thus be combined with proactive nature conservation measures.


Do Energy Bands pose hazards to vehicles?

Unlike solar fields along the highway, the PV modules of the Energy Bands ribbons with 5 meters clear height do not run the risk of dazzling motorists. However, this must be checked separately for each section, as the situation can change with slopes or curves, etc. The same applies to irritaions caused by shadows, which tend to be far migrating and weaker from this great height, but still need to be investigated in pilot projects.


Much more critical is the question of the potential danger posed by electric cables (even if the overhead cables on the Energy Bands have siginificantly lower voltage levels than those of the E-Highways). Hessen Mobil answers a similar question for the E-Highway on the A5 as follows:

Various measures are taken against hazards emanating from electric current:

•The contact wires are routed approximately one meter above the permissible vehicle height of four meters.

•In addition, protection is provided by the use of protective devices known from railroad overhead line construction. Established technology can therefore be used for this purpose.

•To prevent electrically conductive parts from protruding into the traffic area in the event of a contact wire break, a system is installed that detects the contact wire break and automatically and immediately de-energizes the pilot plant.

•In addition, the overhead contact line system is designed in such a way that a broken contact wire cannot protrude into the traffic area.

•In addition, the pilot plant is monitored around the clock by the Hesse traffic control center and can be manually de-energized and grounded from there in an emergency.

E-Highway - siemens.com

Can the necessary roadside land be leased from Autobahn GmbH so close to the highway, or can the use of federal highways be compensated with other forms of fees?

In principle, empirical values speak for a high willingness to cooperate on the part of Autobahn GmbH when it comes to the installation of renewable energies: For example, the Solar Cluster Baden-Württemberg lobbied for a reduction of the no-cultivation zone from 40 to 20 m and received a basically positive decision from Autobahn GmbH:


"Due to the position of renewable energies as an overriding public interest, a reduction of the distance is possible for a large number of projects. However, it always requires an assessment of the specific circumstances of the individual case, the highway authority informs. The necessary application for an exemption can be submitted informally by email to anbau@fba.bund.de."


In the present feasibility study, the user fee for federal trunk roads for Energy Bands was set at an average of 3,000 euros p.a. per kilometer, which would result in additional revenue for the Autobahn GmbH of 135 million euros p.a. if Energy Bands were expanded throughout Germany. With its current revenue (2020) of around 160 million p.a., the Energy Bands business should prove an attractive option for the Autobahn GmbH - despite the additional expenses involved.

The examination of the legal framework includes numerous other fields and should be part of the planning and, if necessary, funding for the first pilot projects

1.Is the project eligible for funding under the EEG?

2.Are the unbundling provisions pursuant to §§ 6 et seq. EnWG applicable in the present case?

3.Will the approval authorities specify deconstruction obligations? Do these have to be specially secured (e.g. security deposit)?

4.Are Energy Bands part of the critical infrastructure as defined in § 2 (1) no. 1 BSI-KritisV in conjunction with Annex 1? Annex 1? What are the consequences of such a classification?

5.Is there a compelling need for a legislative change at state, federal or European level, or would such a change be expedient (e.g. LBO, § 35 BauGB, EnWG and underlying EU directives)?

6.How will ownership be clarified? Will the necessary areas at the roadside be leased? Do they need to be secured in the land register?

7.Are there liability risks in the event of traffic accidents that are partly due to glare, distraction, shadows cast, etc.? Who is liable in the event of accidental damage or destruction of Energy Bands? Is there a threat of partial power loss/blackout in this case? What are the liability risks in the event of such a blackout?

If there is a need for legislative adjustments at the federal or European level to make Energy Bands an important infrastructure for the energy transition, there should be a high level of willingness to pave the legislative way

(1)Energy Bands are a sensible building block for Germany and all European member states on the way to the energy transition

(2)Energy Bands can be designed with control systems as "smart grids" so that they can relieve conventional grid structures in the case of volatile renewable energy.

(3)Energy Bands are a milestone on the way to implementing the hydrogen strategy in Germany and Europe, as they can link large hydrogen tanks to be installed underground in remote areas to their own Energy-Band-power generators as well as to power producers along their routes.

(4)Energy Bands represent a distinctly environmentally friendly solution because, unlike closed planar solar fields, they have only a minor negative albedo effect and thus do not contribute to the potential regional warming of areas.

Boris Zerwann - Bildagentur PantherMedia.net