New legislative initiative to protect birds – a threat to the development of wind energy in Spain

published on July 3, 2025

The energy transition in Spain, driven by climate targets and the National Integrated Energy and Climate Plan (“PNIEC”), aims to double installed wind power capacity from the current 31 GW to 62 GW by 2030, including 3 GW of offshore wind. However, the latest draft royal decree establishing measures to protect birds from collisions and electrocution on high-voltage power lines and wind turbines, published on March 12, 2025, and promoted by the Ministry for Ecological Transition (“MITECO”), raises important questions for developers, operators, and investors.

Although the text does not contain a complete list of protected species, it refers to the list of wild species under special protection (“LESPRE”), which includes more than 300 bird species.

Legal and economic risks for project developers and investors

The draft royal decree poses several risks that jeopardize the feasibility and financing of projects:

1. Legal uncertainty and lack of proportionality

The draft royal decree introduces a framework for action that violates the principles of legality, legal certainty, and proportionality, which are the cornerstones of administrative law and consolidated environmental regulations. Far from limiting itself to correcting the shortcomings of RD 1432/2008 of August 29, the new text establishes a much more rigid regulation that is open to broad interpretations.

One of the main causes of uncertainty is that the regulation applies to both endangered and non-endangered species in the LESRPE, without prioritizing them according to their degree of conservation or actual risk. In addition, the immediate precautionary shutdown, indefinite suspension, or dismantling of wind turbines is considered on the basis of numerical criteria that do not take into account key variables such as the ecological environment, local bird density, frequency of bird migration, or the previous effectiveness of mitigation measures.

It establishes a strict procedure for wind turbines that cause the death of birds or bats listed in the LESRPE, distinguishing between whether the species is listed as threatened (endangered or critically endangered) or not.

A. Threatened LESRPE species:

First bird strike within 5 years: Immediate precautionary shutdown, notification to the administration, analysis of causes, proposal of mitigation and compensation measures. The wind turbine may only be put back into operation with express permission and under new technical and monitoring conditions.
Second bird strike within 5 years: A detailed study of the species' population in the surrounding area, including migration cycles, is required. In addition to further technical measures, the ecological impact (sink effect, local extinction factor) must also be assessed. The wind turbine may only be put back into operation with express permission.
Three or more collisions within 5 years: The wind turbine must be permanently shut down and dismantled, unless the authorities grant an explicit exemption under conditions that guarantee the absence of new accidents.

B. Non-threatened LESRPE species

Isolated collisions: Review of collision risk, proposal of mitigation and compensation measures. Operation of the wind turbine will continue under improved technical conditions.
If mortality thresholds are exceeded (Table 2 of the project): The wind turbine is classified as “dangerous” and shut down as a precautionary measure. A complete annual environmental study and the implementation of measures that significantly reduce the risk (e.g., seasonal, hourly, or even decommissioning shutdowns) are required. Restarting requires express approval.

If, after five years of monitoring, the wind turbine still exceeds the mortality thresholds, its permanent shutdown and dismantling will be ordered, unless it is approved under very restrictive conditions in exceptional cases.

2. Structural financial risks

Wind projects require long time horizons and predictability in their operation in order to be financially viable. The regulation proposed in the draft royal decree not only leads to technical shortcomings in the operation of wind farms, but also seriously jeopardizes their financial viability, especially in projects based on structured financing models (“project financing”), where the predictability of operations and compliance with regulations are the most important prerequisites for the financial viability of the project.

Furthermore, the possibility that a wind turbine must be dismantled after three bird strikes within five years, regardless of type or location, leads to an asymmetrical and disproportionate economic risk. The project does not provide for public compensation, an arbitration mechanism, or compensation for decommissioned assets to mitigate this total loss of value.

Since it is impossible to predict how many hours a wind turbine will be in operation—due to the obligation to automatically shut it down when birds, whether protected or not, fly over it—the expected cash flow is extremely uncertain.

3. Regulatory inequality compared to other sectors

The sector complains that roads (0.4%) and other infrastructure pose a greater risk to birdlife than the 0.017% of land occupied by wind energy, without there being a corresponding framework of sanctions. The regulation places a disproportionate burden on a key sector of the energy transition.

In short, the current version of the draft royal decree represents a significant change to the regulatory framework for wind energy and poses critical challenges in terms of legal, operational, and financial security. Without significant adjustments, it could become an insurmountable obstacle to achieving the objectives of the PNIEC and the Spanish energy transition. For established companies, developers, and investors, legal and technical foresight is essential to protect the profitability of their assets and the integrity of their investments.