The applicants seek an order of the suspensive effect of their action against the planning approval decision (PFB, Planfeststellungsbeschluss) for the new construction and operation of the energy transport line ETL 180 Brunsbüttel - Hetlingen (first construction section) of 22 March 2023t.

The third party summoned to attend the proceedings as a party whose rights may be affected (Beigeladene) is the project developer of an energy transport line to be built between Brunsbüttel and Hetlingen. This line is intended to connect the land-based LNG terminal planned in Brunsbüttel and a planned floating storage and regasification unit (FSRU) for the importation, offloading, storage and regasification of liquefied natural gas to the existing long-distance gas transmission system.

The applicants are farmers and owners of land located in the planning area. 

The application was unsuccessful.

9 The application is admissible (1.), but unfounded (2.).

10 1. a) The jurisdiction of the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) at first instance ensues from section 12 first and second sentence no. 1 of the Act to Accelerate the Use of Liquefied Natural Gas - LNG Acceleration Act (LNGG, Gesetz zur Beschleunigung des Einsatzes verflüssigten Erdgases - LNG-Beschleunigungsgesetz) of 24 May 2022 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 802), last amended by the Act of 8 October 2022 (BGBl. I p. 1726) in conjunction with section 50 (1) no. 6 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung). Pursuant to section 12 first sentence LNGG, the Federal Administrative Court decides at first and last instance on all disputes concerning projects pursuant to section 2 LNGG. In accordance with section 2 (1) no. 3 LNGG, this Act applies, inter alia, to pipelines that serve to connect facilities pursuant to no. 1 or no. 2 to the gas supply systems (LNG connection pipelines). No. 1 and 2 cover, inter alia, floating and land-based facilities for the importation, offloading, storage and regasification of liquefied natural gas.

11 The facilities planned in Brunsbüttel are a land-based and a floating facility within the meaning of that latter provision. The energy transport line in dispute (ETL 180) is intended to be used to connect these facilities to the existing long-distance gas transmission system.

12 (...)

13 b) Pursuant to section 11 (1) LNGG, an objection (Widerspruch) and an action for annulment brought against an authorisation decision for projects pursuant to section 2 have no suspensive effect. The application to the effect that suspensive effect be ordered pursuant to section 80a (1) no. 2, (3) in conjunction with section 80 (5) first sentence, (2) first sentence no. 3 VwGO, filed by the applicants, who are authorised to file the application as parties whose property is affected, is admissible and was filed within the prescribed time limit. Pursuant to section 11 (1) second sentence LNGG, the application for an order of suspensive effect of the objection or the action for annulment must be filed and substantiated within one month of service of the authorisation decision. In the present case, the planning approval decision was notified on 31 March 2023. The application was filed and substantiated on 24 April 2023.

14 2. The decision whether to order the suspensive effect of the action is at the discretion of the court dealing with the main case (section 80 (5) first sentence VwGO). The outcome of the weighing of the respondent's interest in execution against the applicants' interest in suspension of execution in this context is to the detriment of the latter. This is primarily due to the fact that the summary assessment of the prospects of success of the action, which must be carried out here, shows that the action is likely to be unfounded.

15 a) There has been no breach of mandatory law.

16 aa) There was no need to carry out an environmental impact assessment. Pursuant to section 4 (1) LNGG, the Environmental Impact Assessment Act (UVPG, Gesetz über die Umweltverträglichkeitsprüfung) does not apply to projects pursuant to section 2 (1) no. 1, 3, 4 and 5 UVPG in accordance with subsections 2 to 5 if an accelerated authorisation of the specific project is likely to make a relevant contribution to overcoming or averting a gas supply crisis (1). According to subsection 4 of the provision, various kinds of information must be made available to the public before the authorisation is granted (2) and the European Commission must be informed according to subsection 5 of the provision (3). This exception rule does not breach higher-ranking law (4).

17 (1) The planning approval decision rightly assumed the existence of a gas supply crisis. On 30 March 2022, the Federal Ministry for Economic Affairs and Climate Action (Bundesministerium für Wirtschaft und Klimaschutz) declared the early warning level and on 23 June 2022 the continuing alert level of the gas emergency plan in accordance with Regulation (EU) 2017/1938 of the European Parliament and of the Council of 25 October 2017 concerning measures to safeguard security of gas supply and repealing Regulation (EU) No 994/2010. According to the gas emergency plan adopted by the then Federal Ministry for Economic Affairs and Energy (Bundesministerium für Wirtschaft und Energie) on the basis of article 8 of the Regulation of 25 October 2017, serious reductions in gas flows at important physical entry points and the failure of important sources of supply, inter alia, justify the declaration of the alert level. Both conditions were met at the time the alert level was declared and at the time the planning approval decision was issued. The applicants' arguments that the gas storage facilities had now been refilled and the gas price had fallen sharply do not result in a different assessment of the gas crisis. The planning approval decision justifies the need to build the ETL 180 primarily in view of the necessary preparations for the winter of 2023/2024. In this context, it was emphasised that gas supplies from Russia had only come to a complete standstill when the Nord Stream pipelines were destroyed in September 2022. Until then, gas had still been flowing into German storage facilities - a fact that could be exploited in the winter of 2022/2023, but no longer in the winter of 2023/2024. This is not affected by the fact that, in its current assessment of the gas supply situation in Germany, the Federal Network Agency (Bundesnetzagentur) considers that the gas supply is stable and that the security of supply is safeguarded (www.bundesnetzagentur.de/EN/Areas/Energy/SecurityOfSupply/GasSupply/start.html). The fact that, according to this report, the storage level has already reached a level of 75% - ahead of schedule - on 1 June 2023 is not a decisive factor either. The relevant time for the legal assessment of the planning approval decision and thus also for the existence of a gas supply crisis within the meaning of section 4 (1) LNGG is - as is generally the case in sectoral planning law - the time at which the planning approval decision is issued. At that point in time, the gas storage facilities were far less full and the Federal Network Agency described preparations for the winter of 2023/2024 as a key challenge (Gas supply status report of 31 March 2023 issued by the Federal Network Agency).

18 Regarding the suitability of ETL 180 to make a relevant contribution to averting the crisis, the respondent states in the planning approval decision that the FSRU in Brunsbüttel has an intake capacity of 7.5 billion m³ of gas per year; together with the land-based LNG terminal, the capacity would increase to 8 to 10 billion m³ of gas per year. With a national gas consumption of 96 billion m³ per year (...), it is reasonable to assume that the capacity of the project planned in this case is relevant. The explanatory memorandum to the draft LNG Acceleration Act itself assumes a relevant volume of 5 billion m³ or more per year (Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 20/1742 p. 18).

19 (2) Pursuant to section 4 (4) first sentence no. 1 to 3 LNGG, the draft of the authorisation decision including the reasoning, the essential application documents including the documents presenting the material effects of the project on the environment and the reasons for granting the exception pursuant to subsection 1 from the requirements of the Environmental Impact Assessment Act shall be made available to the public before the authorisation is granted. According to the second sentence of this provision, the information must be made available for a period of four days. These requirements partially compensate for the waiver of the actual environmental impact assessment; they are intended to ensure a minimum level of transparency even in cases in which the exception allowing the requirements of the EIA Directive to be waived is applicable (BT-Drs. 20/1742 p. 19). The planning approval decision shows that the information has been made available in this case by displaying it on the premises of the planning approval authority and by publication on the internet from 17 March 2023 (...).

20 (3) The European Commission has also been informed by the Federal Ministry for the Environment, Nature Conservation, Nuclear Safety and Consumer Protection (Bundesministerium für Umwelt, Naturschutz, nukleare Sicherheit und Verbraucherschutz) within the same period in accordance with section 4 (5) LNGG.

21 (4) The waiver of the environmental impact assessment is compatible with EU law, in particular with Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (EIA Directive). Pursuant to article 2 (4) EIA Directive, Member States may, without prejudice to article 7 of the Directive, in exceptional cases, exempt a specific project from the provisions laid down in the EIA Directive if the application of those provisions would result in adversely affecting the purpose of the project, provided, however, that the objectives of the EIA Directive are met. It is true that article 2 (4) EIA Directive expressly states that only "in exceptional cases" may "a specific project" be exempted from the provisions of the EIA Directive, while section 4 (1) LNGG declares the Environmental Impact Assessment Act to be inapplicable to all projects pursuant to section 2 (1) no. 1, 3, 4 and 5 LNGG provided that certain conditions are met. However, an exception from the provisions of the UVPG requires an examination for each individual project, and thus for each "specific project" within the meaning of article 2 (4) EIA Directive, whether accelerated authorisation is suitable to make a relevant contribution to overcoming or averting a gas supply crisis. This means that the respective authority responsible for authorisation decides whether an exception within the meaning of article 2 (4) EIA Directive might apply with regard to the "specific project" (as expressly required by section 4 (1) LNGG). The criticism that section 4 (1) LNGG ordered a waiver for abstract-general projects that are only more specifically defined by means of location and thus for an entire project category (...) is not convincing. The examination of suitability within the meaning of section 4 (1) LNGG ensures that only those projects are exempted from the application of the UVPG for which the application of the provisions relating to the environmental impact assessment would have a detrimental effect on the purpose of the project. For that reason, the provision in section 4 (2) LNGG is also not comparable to an exception rule that is generally linked to certain threshold values (see CJEU, opinion of Advocate General Kokott of 13 November 2014 - C-570/13 [ECLI:EU:C:2014:2374] para. 60).

22 bb) Planning justification is given.

23 Planning is justified if there is a need for the intended project in accordance with the objectives pursued by the law, including other legislative decisions. This is not only the case once the project is inevitable, but already when it is reasonably necessary (established jurisprudence, see BVerwG, judgment of 9 February 2017 - 7 A 2.15 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 158, 1 para. 208). Planning justification may ensue from a binding legal determination of need or on a case-by-case basis.

24 In this case, planning justification ensues from section 3 second sentence LNGG. This provision establishes the necessity to meet the requirements of energy supply and the need to guarantee the supply of gas to the general public for the projects within the scope of application of the Act. According to the explanatory memorandum to the draft act, this constitutes a legal planning justification (BT-Drs. 20/1742 p. 17). The planning approval decision correctly refers to this (PFB p. 103).

25 The legal determination of need is generally binding for the planning approval and the court proceedings and can only be reviewed by the court as to whether the legislature has exceeded the broad scope for action and forecasting to which it is entitled in this regard because the determination of need is manifestly unobjective, i.e. where there is obviously no need for the project that could justify the legislature's assumption (see, by way of example, BVerwG, judgments of 5 October 2021 - 7 A 13.20 - BVerwGE 173, 296 para. 41 and of 4 May 2022 - 9 A 7.21 - BVerwGE 175, 312 para. 17). The legislature considers the projects covered by the determination of need pursuant to section 3 second sentence LNGG to be necessary for the energy supply because they could make a key contribution to ensuring security of supply and creating a future-oriented and diversified gas supply and because their realisation was urgent (see BT-Drs. 20/1742 p. 17). There are no indications that this assessment might be clearly incorrect in relation to the LNG connection pipeline at issue in the present case.

26 (...)

27 b) The planning approval decision does not entail any shortcomings in terms of weighing the interests involved.

28 aa) This examination of the possible variants does not give rise to any objections.

29 The requirement to weigh the different interests under sectoral planning law (section 43 (3) of the Energy Industry Act (EnWG, Energiewirtschaftsgesetz)) demands that all realistic alternative solutions must be taken into account when compiling the material relevant to the weighing process and that they be included in the comparative examination of the public and private interests affected by the possible alternatives in accordance with their respective relevance (BVerwG, decision of 12 July 2018 - 7 B 15.17 - (...) para. 16). The limits of the planning authority's scope for action are only exceeded if the authority had committed a legally relevant error in the selection procedure as a result of incorrect determination, assessment or weighting of individual concerns or if, taking into account all interests, another variant should have been clearly identified as the better one because it would have had a less adverse effect on public and private interests as a whole (BVerwG, judgments of 8 January 2014 - 9 A 4.13 - (...) para. 117 and of 5 October 2021 - 7 A 13.20 - BVerwGE 173, 296 para. 67 et seqq.).

30 The exclusion of the "no-action variant" was reasonably justified by the need to secure gas supply. In this regard, reference can be made to the remarks made in the planning approval decision (...) and to the planning justification (see para. 22 et seqq. above).

31 The examination of possible variants carried out by the respondents in relation to the variant favoured by the applicants of shifting the route by approximately 150 m to the north and thus to the edge of their properties (...) does not contain any errors either. (...) The respondent correctly countered the applicants' concern that their properties would be arbitrarily divided and that numerous drainage channels would be severed by arguing that the variant favoured by the applicants would affect other owners instead of them. In this regard, it may be true that the applicants would be less affected by the variant favoured by them. However, this would automatically be at the expense of other owners.

32 Moreover, the variant for which planning approval has been granted adhered most closely to the technical principles of the planned routing. Contrary to what the applicants assert, these not only include the straightest possible route but also the requirement to bundle the routes and to position them in parallel to high-voltage overhead lines wherever possible (...). This usually results in the least impact on nature and landscape (BVerwG, decision of 15 September 1995 - 11 VR 16.95 - (...)). While the variant for which planning approval has been granted ensures a parallel routing with the existing high-voltage overhead line, this is not the case with the variant favoured by the applicants.

33 (...)

34 (...)

35 bb) The decision of weighing is also lawful with regard to the consideration of climate protection. The applicants assert that the planning approval decision does not take climate protection concerns into account to a sufficient degree.

36 In principle, the applicants, who are entitled to a full review because their property is affected (established jurisprudence, see BVerwG, judgment of 5 October 2021 - 7 A 13.20 - BVerwGE 173, 296 para. 23), can also invoke climate protection concerns when challenging a planning approval decision, although section 4 (1) tenth sentence of the Federal Climate Change Act (KSG, Bundes-Klimaschutzgesetz) of 12 December 2019 (BGBl. I p. 2513), amended by article 1 of the Act of 18 August 2021 (BGBl. I p. 3905), stipulates that no subjective rights and actionable legal positions are established by this Act. This is because - outside of the Federal Climate Change Act - the applicants are entitled to an error-free decision of weighing (see BVerwG, judgment of 20 December 2011 - 9 A 30.10 - (...) para. 16).

37 The applicants' right to a full review is also not subject to any restrictions in this regard. In principle, even in the case of applicants whose property is affected, not every objective legal error inherent in planning leads to the complete or partial annulment of the planning approval decision or to the determination of its unlawfulness and impossible execution. Rather, this legal consequence does not apply if the asserted legal error is not relevant, and in particular not causal, for the applicants' property being affected for factual or legal reasons. This is the case, for example, if a public interest that is claimed to have been infringed is of local significance only and if even an error-free consideration of this interest would not lead to a change of the planning in the area in which the affected property is located (established jurisprudence, see BVerwG, judgments of 12 August 2009 - 9 A 64.07 - BVerwGE 134, 308 para. 24 and of 3 November 2020 - 9 A 12.19 - BVerwGE 170, 33 para. 27, 33 et seqq.).

38 These restrictions do not apply here because the applicants' objection regarding the consideration of climate protection is of a fundamental nature and is aimed at preventing the project as a whole. The applicants argue that there was no gas shortage situation, and they unequivocally oppose the importation of liquefied natural gas. If the applicants were to prevail with this argument, the alleged error would also be causal for their property being affected.

39 However, there has been no error in weighing in this regard. Pursuant to section 13 (1) first sentence KSG, when making plans and taking decisions, entities discharging public tasks shall give due consideration to the purpose of this Act and to the objectives set for its implementation. This relates to the purpose of the Act set out in section 1 KSG and, in particular, the impact of the project on the national climate targets, which are defined in more detail in section 3 (1) KSG. In this regard, the authority is under the obligation to determine the expected quantity of greenhouse gases that will be emitted as a result of the project; using an estimate is only possible if the effort required to determine the quantity is disproportionate (...).

40 The identified impact on the climate targets must then be taken into account as part of the decision of weighing. Taking into account is not meant in terms of an optimisation requirement; instead, it means that interests feed into the weighing process with the weight that is attributed to them. In the case of conflicting interests, it depends on the individual case whether and to what extent climate protection or another interest prevails in the end (see BVerwG, judgment of 4 May 2022 - 9 A 7.21 - BVerwGE 175, 312 para. 85, 87; (...)). Article 20a of the Basic Law (GG, Grundgesetz) is also only of relative significance in this regard. The Federal Constitutional Court (BVerfG, Bundesverfassungsgericht) does not grant this provision absolute precedence over other interests (BVerfG, decision of 24 March 2021 - 1 BvR 2656/18, 1 BvR 78/20, 1 BvR 96/20, 1 BvR 288/20 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 157, 30 para. 198, 207; BVerwG, judgment of 4 May 2022 - 9 A 7.21 - BVerwGE 175, 312 para. 86) and - derived from the right to an existence in line with human dignity - also attaches existential importance to safeguarding the energy supply for the common good (BVerfG, judgment of 17 December 2013 - 1 BvR 3139/08, 1 BvR 3386/08 - BVerfGE 134, 242 para. 286).

41 Against this background, the respondent's decision of weighing does not give rise to any objections.

42 The respondent included the clearing of trees and forest stands and their role as carbon dioxide sinks in the weighing process as relevant for climate protection. However, the fact that the respondent has also taken into account that the forest areas lost in the clearing process will be replaced at a ratio of 1:2 or 1:3, thus creating the opportunity for even larger carbon dioxide sinks in the future, does not give rise to any objections (...).

43 Following an analysis of the soil protection concept submitted by the project developer, the respondent considered interventions into peat soils as unquantifiable. There have been no assertion of any errors in this regard and no errors are otherwise discernible.

44 With regard to construction and delivery traffic, the respondent has stressed that it is not possible to precisely quantify greenhouse gas emissions in advance; the respondent included the consumption of 4,700,000 litres of diesel for construction machinery and equipment, as estimated by the project developer, in the weighing process. The respondent also took the escape of gas due to expected leaks into account on the basis of empirical values.

45 Furthermore, the respondent rightly disregarded what it referred to as indirect effects of the project in its analysis. This applies in particular to those greenhouse gas emissions caused by future consumers of the transported gas. This is because the effects of an energy transport line do not include the activities for which the transported energy is used (BVerwG, decision of 18 February 2021 - 4 B 25.20 - (...) para. 22). There is a lack of connection to the project in this regard, which is required by section 43 (3) EnWG. According to this provision only the interests "affected by the project" shall be taken into account in the weighing process. This is an expression of the fact that the weighing process carried out by the planning authority is connected to the project. In the present case, the project in this sense is the construction of the connection pipeline. The operation of the pipeline includes the transport of natural gas but not the subsequent gas consumption. While indirect effects of a project must also be included in the weighing of interests, these must always be effects of the project itself. This requires that the respective effects are attributable to the project when taking an evaluative approach because a project-specific risk has been realised in those effects, which the legal requirement to obtain planning approval is meant to eliminate. Jurisprudence has assumed this to be the case, for example, in the context of planning approval regarding trunk road law, where there was a clear causal link between a road construction project and the expected increase in traffic on another road not covered by the planning approval decision (BVerwG, judgment of 17 March 2005 - 4 A 18.04 - BVerwGE 123, 152 <157>), and also if the effects of a project may have a significant long-term impact on another authority fulfilling its tasks (BVerwG, judgments of 28 April 2016 - 9 A 11.15 - (...) para. 13 and - 9 A 8.15 - (...) para. 15 and of 28 February 2019 - 3 A 4.16 - BVerwGE 165, 33 para. 28). The present case does not involve such a scenario or a comparable one (similarly, BVerwG, decision of 18 February 2021 - 4 B 25.20 - (...) para. 22). The one and only intended use of the connection pipeline is the transport of gas. The subsequent consumption of the gas takes place elsewhere and is subject to its own regulations, especially with the objective of reducing the associated greenhouse gas emissions, in particular through the applicable installation authorisation law, the greenhouse gas emissions trading law as well as legal provisions for the use of energy in buildings.

46 Furthermore, a normative assessment of these indirect effects of the project are an argument against attributing them to the connection pipeline. This ensues from the sector-specific approach of the Federal Climate Change Act which, pursuant to section 4 (1) first sentence KSG stipulates annual mitigation targets for the following sectors: energy, industry, transport, buildings, agriculture, waste and others. However, the gas transported through the long-distance gas transmission system is sector-neutral and can be used in any of the sectors listed. The gas can therefore only be allocated to one of those sectors once the gas is consumed in a way that has an effect on climate but not when it is being transported.

47 Similarly, in section 4 (1) first sentence of the Greenhouse Gas Emissions Trading Act (TEHG, Treibhausgas-Emissionshandelsgesetz) refers to the emission of greenhouse gases and not to the transport of fossil fuels. Annex 1 part 2 no. 1 to 32, which is referred to in the aforementioned provision, only lists greenhouse gas emitting installations. Transport pipelines are only mentioned in no. 31. However, this refers to pipelines for the transport of greenhouse gases that are transported for purposes of geological storage, and not to a subsequent consumer.

48 It also does not give rise to any objections that the respondent has assessed the identified emissions as being on the low side and, what is more, that it has stressed that the project will not result in an additional consumption of gas. This is because ETL 180 is a replacement project that is intended to provide the German market with natural gas that is no longer available elsewhere as a result of the Russian war of aggression against the Ukraine (...). The respondent is also correct in its assessment that it is not the duty of the planning approval authority to revise a decision to be made by the legislature on the question of whether natural gas may lawfully be used as a source of energy in the context of the consideration requirement of section 13 (1) KSG (see BVerwG, judgment of 4 May 2022 - 9 A 7.21 - BVerwGE 175, 312 para. 97). Finally, it was permissible to take into account that the project is suitable for transporting hydrogen in the future in accordance with the legislature's intent (see BT-Drs. 20/1742 p. 16) which, according to the current state of knowledge, will be an important component of the desired climate neutrality.

49 (...)

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