E.ON Reportedly Filed Lawsuits Because of Shutdown Orders for Nuclear Power Plants During Moratorium

Reportedly E.ON has filed lawsuits claiming damages of approximately EUR 380 million because of the shutdown orders for its nuclear power plants Unterweser and Isar 1 that were issued as part of a 3-month moratorium on nuclear power in Germany in the wake of the Fukushima nuclear accident in Japan in 2011.

The moratorium shut down orders pertained to the seven oldest German nuclear power plants Biblis A, Neckarwestheim 1, Biblis B, Brunsbüttel, Isar 1, Unterweser, Philippsburg 1 (and also covered the Krümmel nuclear power plant that was not in operation at the time). They had to stop operations immediately and never went online again, because it came to a reversal of the German nuclear policy only adopted a few months ago in autumn 2010, which had still provided for an extension of the operating times of the 17 German nuclear power plants, as they were regarded as the “bridging technology” on the way to a (mainly) renewable energy supply (see Energy Concept 2010). In 2011, the government changed its policy,  proposing comprehensive legislative changes, including a nuclear phase-out until 2022 and the definitive shut down of the above-mentioned nuclear power plants covered by the moratorium (so-called Energiewende, “energy turnaround”). The legislative package was approved by the German parliament (Bundestag) and the Federal Council (Bundesrat) in June/July 2011. For E.ON this meant that is had to close down its nuclear power plants Isar I and Unterweser for good (and also the Brunsbüttel and Krümmel plants in which it is a shareholder together with Vattenfall).

Unlike its competitor RWE, E.ON was not reported to have challenged the moratorium shut down orders in court. In the case of RWE the Federal Administrative Court has meanwhile declared the shut down orders for the RWE plants covered by the moratorium illegal and RWE has filed lawsuits for damages. With regard to the preliminary shut down orders E.ON had unsuccessfully tried to reach an out-of-court settlement with the German Federation and the German states Bavaria and Lower-Saxony, the media quote an E.ON spokesperson.

The legal basis for E.ON’s lawsuit does not seem to be discussed further in the current press reports. German state liablility rules contain several hurdles for potential claimants. Whether E.ON’s line of argumentation will prove valid remains to be reviewed once available. Generally one has to challenge administrative orders which one perceives as unlawful before being able to claim damages under German law.

The E.ON lawsuit for damages only concerned the 3-month shut down orders, not the 2011 energy package of the government as such, the media point out. In late 2011 E.ON already lodged a constitutional complaint with the Federal Constitutional Court because of the moratorium and the Energiewende (energy policy shift) of 2011 that lead to the phase-out of nuclear power by 2022. It has not been decided yet. Depending on the outcome, E.ON might file further lawsuits for damages.

E.ON also filed lawsuits against a provision in the Atomic Energy Act (AtG) that was included with the 2012 amendment, according to which nuclear waste can no longer be brought to the preliminary storage site in Gorleben, but has to be stored in a preliminary site the operator has to erect (cf. Section 9a para. 2 AtG), the media say, quoting E.ON as saying one did not feel obliged to bear the costs for a preliminary storage for which there was no factual justification (“für eine sachlich nicht begründbare alternative Zwischenlagerung”).

Source: Spiegel; Frankfurter Allgemeine Zeitung

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