“Flawed, superficial and solely ideologically motivated” is how the DEBRIV association, Berlin/Germany, sees the legal report on the energy transition submitted by the Agora Energiewende thinktank. One particularly problematic aspect of the report is the ease with which Agora skates around constitutionally protected legal positions. In its assessment, DEBRIV lists a number of concrete legal flaws in the report, which refers to itself as an analysis of the German Federal Constitutional Court (BVerfG) judgement of 6th December 2016 on the 13th amendment to the German Atomic Energy Act („nuclear phase-out“):
According to this judgement, no constitutional legal provision exists whereby an investment that is written off or amortised loses its property protection. Property protection continues beyond this period as well. In contrast to Agora‘s claim, it would be necessary to examine – for each power station unit to be decommissioned – whether statutory termination of the power station‘s lifetime is warranted in comparison to other units. In addition, surface mining is protected by article 14 German Basic Law (GG) in the same way that power stations are. The statement to the contrary issued by Agora is not legally tenable.
Furthermore, their brief assessment wholly disregards the direct social and economic ramifications that a transition from coal would bring for the affected regions as well as all of Germany as an industrial centre. These aspects are nevertheless crucially important when it comes to interpreting the German constitution. According to DEBRIV, „it is regrettable that an attempt has been made to influence political opinion by way of an assessment with this kind of legal vulnerability.“
The fact of the matter is that lignite power stations in Germany operate on the basis of indefinite, legally compliant permits corresponding to the state of the art. There is no legal basis for the withdrawal of operating permits. Making a success of the German energy transition requires an emphasis on organising cooperation between conventional and renewable energy sources in such a way that equal consideration is given to climate protection, reliability of supply and economic efficiency.
Unilateral measures, like a politically driven departure from lignites, will not help climate protection efforts. Ultimately, German lignite is also subject to the EU Emissions Trading System (ETS), meaning that moving away from coal at the national level would not impact overall emissions in Europe because unclaimed emissions certificates could be used by other issuers elsewhere in Europe. (DEBRIV/Si.)