Legal Action against Shut Down Order for Biblis Nuclear Power Plants

RWE AG has brought legal action against the interim decomissioning order of the supervisory authority in Hessen for its Biblis nuclear power stations.

RWE Power lodged the appeal with the Administrative Court of Appeal in Kassel (Hessischer Verwaltungsgerichtshof). The appeal has not yet been substantiated, which is normal practice in administrative court proceedings.

In its press release, RWE claims that the requirements of a shut down order pursuant to Section 19 of the German Atomic Energy Act (Atomgesetz – AtG) are not fulfilled. As the Biblis nuclear power plants comply with all relevant safety requirements, there is no legal basis to order a preliminary decommissioning. RWE also points out that it was safeguarding the interests of its shareholders by taking this legal action.

The order to preliminarily decomission the two Biblis plants was issued on 18 March 2011 as part of the 3-month nuclear power moratorium in Germany. Technically, RWE’s appeal is a so-called rescissory action (Anfechtungsklage), as it is requesting the rescission of the decomissioning order, an administrative act (Verwaltungsakt) of the supervisory authority.

It appears as if the supervisory authority’s order to temporarily decommission the plants did not include a so-called order of immediate execution (Anordnung des sofortigen Vollzugs). In that case, the filing of the appeal would suspend the effectiveness of the decommissioning order (so-called suspensive effect). As a consequence, based on the existing operating permits, RWE would be allowed to start operating its plants again.

The supervisory authority would then have to consider whether it shall separately order the immediate execution of its decommissioning order. For such an order, the authority would have to argue that it is in the public interest to do so. The special interest in immediate execution of the administrative act would have to be reasoned in writing.

After an order for immediate execution, RWE could in turn apply to the court to restitute the suspensive effect. The court, in expedited proceedings, would have to assess, on a preliminary and summary basis, whether the interest to execute the order or the interest to make use of the operating permit prevails. In its assessment, the court would look inter alia at the likely outcome of the case, the severity of the restriction, the potential harm and the potential reversibility of the consequences.

On the substance, pursuant to Section 19 para. 3 AtG, the supervisory authority may order that the operation of licensed nuclear power installations shall be suspended if there is a hazard to life, health or property because of the effects of ionizing radiation. As the operation of the Biblis nuclear power plants is covered by existing licences, and so far has been considered to comply with all legal requirements, the case turns on whether it can be demonstrated that the events in Japan have changed the situation in such a way that a continued operation of the Biblis plants may constitute a hazard to life, health or property. Furthermore, it has to be demonstrated that the immediate shut down is necessary, even while the situation is being analysed further. 

Also in light of the fact that the security of the German nuclear power plants was debated at length in the context of the nuclear power extension package, as admissable generation quantities for the Biblis plants have only recently been extended by this package, and as the government decided to implement the nuclear power moratorium without changing any laws, legal experts have doubted the legality of the order to shut down the plants.  

Whether and how the new requirements for safety checks of nuclear power plants, which the Federal Ministry for the Environment, Nature Protection and Nuclear Safety presented yesterday, will contribute to the outcome of the lawsuit, remains to be seen.

Sources: RWE AG; Hessischer Verwaltungsgerichtshof

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