Federal Administrative Court Confirms Illegality of Moratorium Shutdown Order for Biblis Nuclear Power Plants

The Federal Administrative Court in Leipzig (BVerwG) has dismissed appeals by the State of Hesse against two rulings by the Higher Administrative Court of Hesse that declared the preliminary shutdown orders for RWE AG’s Biblis A and B nuclear power plants 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 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 immediately.

Upon legal action taken by RWE,  the Higher Administrative Court of Hesse (Hessischer Verwaltungsgerichtshof) decided that the shutdown orders 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.

The appeal by the State of Hesse against the decision by Hessischer Verwaltungsgerichtshof not grant leave to appeal (“Nichtzulassungsbeschwerde”) has now been dismissed by the Federal Administrative Court.

According to the court’s press release, the appeals were dismissed since the State of Hesse apparently did not submit a convincing justification why RWE had not been heard prior to the shutdown orders. Independent of (all) the other reasons why the orders were considered unlawful by the Higher Administrative Court of Hesse, the procedural flaw of not having heard the operator before the preliminary shutdown orders in itself justified the judgements. Full details of the decision of the BVerwG have not yet been published.

The scathing rulings of Hessischer Verwaltungsgerichtshof on the illegality of the Biblis shutdown orders have thus become final.

It remains to be seen whether RWE can now successfully claim damages before a civil court. Technically, damage claims are separate from the administrative law legality decision of the administrative courts Hessischer Verwaltungsgerichtshof and BVerwG. Unlawful adminstrative orders do no necessarily lead to successful damage claims.

In the present case, the damages questions will be affected by the fact that Biblis was not restarted 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, based on existing operating permits, the operator would have been free again to start operating its plants. The State of Hesse is likely to argue that not restarting Biblis contributed to the damages, possibly to the extent of entirely eliminating damage claims.

The other nuclear power operators affected by the preliminary shutdown orders abstained from taking legal action.  

Source: Bundesverwaltungsgericht (BVerwG)

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