State of Hesse Appeals Ruling on Unlawfulness of Shutdown of Biblis Nuclear Power Plants

The State of Hesse has filed appeals against two recent rulings by the Higher Administrative Court of Hesse (Hessischer Verwaltungsgerichtshof) that declared the preliminary shutdown orders for RWE AG’s Biblis A and B nuclear power during the nuclear power moratorium in 2011 unlawful.

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. Subsequently, 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.

In April 2011, RWE filed law suits, initially aimed against the 3-month shutdown orders. Since the court did not decide within the 3-month period, RWE later changed its applications, requesting that the Court determine the illegality of the original 3-month shutdown orders.

This request was admitted by Hessischer Verwaltungsgerichtshof in July 2012. In March 2013 the court declared the shutdown orders unlawful.

Hessischer Verwaltungsgerichtshof decided that the shut down orders contained several procedural as well as substantive flaws. RWE had not been properly heard before the shutdown orders were issued. Besides, the orders were unlawful on substantive grounds since the specific requirements of Section 19 para. 3 AtG for shutdown orders were not met, since the Environment Ministry had not made proper use of its discretion, and since the shutdown order itself was disproportionate.  In a nutshell, the court considered the shutdown order very unlawful.

The State of Hesse appealed the decisions by Hessischer Verwaltungsgerichtshof not grant leave to appeal with the so-called “Nichtzulassungsbeschwerde” (appeal due to denial of leave to appeal), saying the court’s reasoning concerning the above mentioned procedural and substantive matters was of importance beyond the two cases at hand. The appeal will be heard by the Federal Administrative Court in Leipzig.

The administrative court decisions, including the upcoming appeal procedure, formally do not address the questions whether the operator of the Biblis power plants will receive damages because of unlawful shutdown orders.  This mult-million dollar issue will have to be decided by an ordinary court, and will of course be heavily influenced by the findings of the administrative courts.

Sources: Environment Ministry of the State of Hesse,  decision 6 C 824/11.T, decision 6 C 825/11.T

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