Press Reports on RWE Damage Lawsuit Against State of Hesse and German Federation Because of Shutdown Order for Biblis Power Plants

According to several press reports, RWE AG has filed a lawsuit against the State of Hesse and the German Federation claiming damages because of shutdown orders issued in 2011 for its two nuclear power plant units located in Biblis, Hesse. Neither RWE nor the state of Hesse appear to have as yet commented on the amount of damages.

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 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 at the time) had to stop operations immediately and never went online again.

In administrative court actions taken against the preliminary shutdown orders, RWE prevailed. In January 2014 the Federal Administrative Court in Leipzig (BVerwG) confirmed a judgement by the Higher Administrative Court of Hesse (Hessischer Verwaltungsgerichtshof), who had declared the orders illegal, arguing they contained several procedural as well as substantive flaws. Firstly, 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. BVerWG dismissed the appeals by the State of Hesse holding that the state did not submit a convincing justification why RWE had not been heard prior to the shutdown orders, which sufficed for dismissing the cases.

Even though RWE prevailed in administrative proceedings, this does not necessary mean a successful outcome of the claims for damages, which are heard by the ordinary civil courts. RWE reportedly filed its claim with Landgericht Essen.

The environment minister of Hesse, Priska Hinz, already in March had said that RWE was preparing a lawsuit to claim damages because of the Bibils shut down. On 2 April 2014, the state parliament of Hesse established a parliamentary investigative committee (parlamentarischer Untersuchungsausschuss) on the Bibils shutdown. The investigative committee was tasked to fully clarify who was responsible for the unlawful shutdown orders for Biblis A and B, and which circumstances lead to the unlawful shutdown order of 18 March 2011. It shall also investigate whether the state government truthfully and comprehensively informed the parliament as well as the public about the proceedings.

A likely point of dispute in the lawsuit will be the fact that RWE did not restart Biblis after the shutdown orders had been appealed against before the administrative court. The filing of an appeal against a shutdown order regularly suspends the effectiveness of a shutdown order (so-called suspensive effect). As a consequence, considering just the existing operating permits, it appears that RWE would have been in a position to start operating its plants again. The State of Hesse is likely to argue that not restarting Biblis contributed to the damages, maybe even to the extent of entirely eliminating damage claims.

According to media reports, the State of Hesse already declared to have acted in 2011 on the orders of the German Federation (“aufgrund der Vorgaben”) not hearing RWE prior to issuing the orders like all other federal states concerned. Therefore the German Federation might eventually also be liable if damages were awarded.

According to Rheinische Post Online (RP-Online), the German Federation on the other hand has pointed to the State of Hesse as the issuing authority of the orders, saying claims for damages against it were not justified as the German Federation had not acted in a legally relevant way. Therefore it was already questionable whether a lawsuit by RWE against it was admissible.

Sources: RP-Online, Legal Tribune Online, Focus

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