Shutdown Order for Biblis Power Plants Under Nuclear Moratorium Unlawful

The preliminary shutdown orders for RWE AG’s Biblis A and B nuclear power plants issued by the state of Hesse following the German government’s 3-month nuclear power moratorium in 2011 were illegal, the Higher Administrative Court of Hesse (Hessischer Verwaltungsgerichtshof) ruled.

The preliminary orders to shut down the two Biblis nuclear power plants for 3 months were issued on 18 March 2011 in the wake of the 3-month nuclear power moratorium in Germany following the Fukushima nuclear accident. In April 2011, RWE filed law suits, initially aimed against the 3-month shutdown orders.

After the Fukushima incident, the German government reversed its nuclear policy adopted in autumn 2010 that had provided for an extension of the operating times of the 17 German nuclear power plants. As part of the Energiewende legislative changes, the extension was reversed. Instead the Atomic Energy Act (AtG) now provides for a nuclear phase-out until 2022. The seven oldest plants covered by the moratorium (Biblis A, Neckarwestheim 1, Biblis B, Brunsbüttel, Isar 1, Unterweser, Philippsburg 1) plus the Krümmel nuclear power plant (that had not been in operation) had to stop operations for good. This legislative package was approved by the German parliament (Bundestag) and the Federal Council (Bundesrat) in June/July 2011.

Since the Court had not ruled within the term of the initial 3-month shutdown orders, the original shutdown orders had elapsed before the Court could decide. As the original shutdown orders no longer banned the operation of the Biblis plants, lifting them would not have helped RWE. In accordance with procedural rules, RWE therefore changed its applications, requesting that the Court determine the illegality of the original 3-month shutdown orders.

In July 2012, Hessischer Verwaltungsgerichtshof decided that RWE’s revised applications were admissible, saying a future liability lawsuit against the state of Hesse was not obviously without any chance of success, hence RWE had a justified interest to have the cases reviewed on the substance.

The Court now declared the shutdown orders unlawful on procedural and substantive grounds. Firstly RWE had not been properly heard before the shutdown orders were issued and secondly the Environment Ministry had not properly made use of its discretionary power under AtG, the press release says. The full written opinion is not yet available. Hence the information are somewhat sparse. The Court explicitly pointed out that it did not decide about RWE being entitled to damages, saying they had to be decided about in a civil law case.

Hessischer Verwaltungsgerichtshof did not grant leave to appeal. This decision can be appealed with the so-called “Nichtzulassungsbeschwerde” (appeal due to denial of leave to appeal).

In November 2011, Germany’s largest utility E.ON AG lodged a constitutional complaint with the Federal Constitutional Court (BVerfG) alleging an infringement of its fundamental rights due to the uncompensated shut down of its nuclear power plants Unterweser, Brunsbüttel and Krümmel under the 3-month moratorium and the following permanent shut-down and the limitation of the operating times of the remaining nuclear power plants as part of the accelerated nuclear power phase-out. Unlike RWE E.ON did not take legal action with the administrative courts against the preliminary shut-down orders following the moratorium. It remains to be seen whether this will affect the case before BVerfG.

Source: Hessischer Verwaltungsgerichtshof, ref. nos. 6 C 824/11.T and 6 C 825/11.T

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• Legal Action against Shut Down Order for Biblis Nuclear Power Plants
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