Uncertainty About Legal Basis for Nuclear Power Moratorium and Shutdowns

Dr. Norbert Lammert, President of the German Parliament (Bundestag), told the newspaper Berliner Zeitung that he wanted the Bundestag administration to examine whether the moratorium on the recent nuclear power extension had to be approved by parliament. Questions have also been raised about the legal basis for the request to shut down the seven nuclear power plants.

According to dpa, Mr Lammert, a fellow party member of Chancellor Angela Merkel (CDU), and the chairman of the legal committee of the Bundestag Siegfried Kauder (CDU) both expressed doubts with regard to the legality of the 3 month nuclear power moratorium.  The moratorium affects the application of the amendments of the Atomic Power Act (AtG) passed with the votes of the ruling CDU, CSU and FDP coalition under Mrs Merkel in late October 2010. The recent nuclear power extension, which was heavily criticised by the opposition, lead to an extension of the operating times of the 17 German nuclear power plants for an average of 12 years. The opposition also believed that the moratorium’s suspension of the AtG amendment required a new vote in parliament, Berliner Zeitung says.

The government meanwhile announced to shut down the seven oldest operational German nuclear power plants that were built until 1980 during the time of the moratorium. This covers Biblis A and B, Neckarwestheim 1, Brunsbüttel, Isar 1, Unterweser and Philippsburg 1. The announcement came after a meeting of Mrs Merkel, Environment Minister Norbert Röttgen, Economics Minister Rainer Brüderle with the premiers of the states in which nuclear power plants are located.

In a press conference yesterday, Mr Röttgen cited Section 19 para. 3 sentence 2 no. 3 AtG as the legal basis for the government’s actions. According to Section 19 para. 3 AtG, the supervisory authority may order that a situation be discontinued which is

  • contrary to the provisions of the Atomic Energy Act, or
  • of the statutory ordinances issued under the Atomic Energy, or
  • to the terms and conditions of the notice granting the licence or general approval, or
  • to any subsequently imposed obligation, or
  • which may constitute a hazard to life, health or property because of the effects of ionizing radiation.

In particular, the supervisory authority may order that the handling of radioactive material, the erection and operation of licensed nuclear power installations shall be suspended or, if a requisite licence is not granted or is definitely revoked, discontinued.

As the operation of all 7 nuclear power plants that shall be shut down is covered by existing licences, and so far has been considered to comply with all legal requirements, the supervisory authority would have to demonstrate that the continued operation may constitute a hazard to life, health or property because of the effects of ionizing radiation. In particular, the supervisory authority has to demonstrate for each affected plant that the events in Japan have changed the situation in such a way that a hazard to life, health or property may now exist in Germany. Furthermore, this must have happened in such a way that the immediate shut down is necessary while the situation is being analyzed further. Not surprisingly, questions have been raised whether this is really the case. 

In addition to the emergency provisions in Section 19 AtG, Section 17 AtG lays down the conditions under which nuclear power permits can be limited and revoked. However, the revocation or limitation of an operating licence for a nuclear power plant may lead to a claim for compensation against the authorities.

Sources: BundesregierungBerliner Zeitung, Zeit Online, Spiegel Online, Handelsblatt

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