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Raw Material, Environmental and Climate Protection Issues Relating to the Coal Phase-Out

On 28th June 2022, representatives from various spheres of influence such as ministries, companies, universities and law firms gathered for a virtual, interdisciplinary conference on the topic of the coal phase-out. It served to shed light on the current situation and to discuss it critically. After the welcoming address by Prof. Walter Frenz (Department of Mining, Environmental and European Law, RWTH Aachen University) and Prof. Axel Preuße (Institute for Mine Surveying, Mining Damage Science and Geophysics in Mining, RWTH Aachen University), the individual presentations were introduced. The objective of this conference was decisively anticipated by the individual speakers, namely the critical and comprehensive discussion of the imminent coal phase-out against the background of possible energy raw material shortages. To this end, questions were formulated such as “Will the coal phase-out be brought forward?”, “May expropriations and resettlements still be carried out?” or “What substitute energy may be promoted by the state?”.

Author / Autor: Maximilian Lübeck B. Sc., Lehr- und Forschungsgebiet Berg-, Umwelt- und Europarecht der RWTH Aachen University, Aachen/Germany

The opening presentation of the 2nd Colloquium on Raw Material, Environmental, and Climate Protection Issues on the Coal Phase-Out on 28th June 2022 at RWTH Aachen University (RWTH), Aachen/Germany, with the topic “Regional Consequences of the Coal Phase-Out in North-Rhine Westphalia” was given by Alexandra Renz, Ministry for Economic Affairs, Innovation, Digitalisation and Energy of the State of North-Rhine Westphalia. In it, the speaker analysed clear regional challenges associated with the coal phase-out after 2030. The coal phase-out brought forward by the new black-green state government in North-Rhine Westpha-lia is scheduled for 2030, not 2035 as before, and poses problems for the region in that there are no concrete plans to date for the short-term closure of the opencast lignite mines in the Rhenish District over the next eight years (Figure 1). In addition, the period of aftercare will extend over many decades and generations, and this can be influenced by many changing factors. Furthermore, Renz emphasised that the companies’ provisions would only benefit the recultivation and renaturation of the areas and not climate protection per se. For this reason, she said, a joint rethink by politics and business must take place in order to make the leap from a coal phase-out to a sustainable energy supply without neglecting the environment and the climate.

Prof. Walter Frenz, Chair and Researcher of Mining, Environmental and European Law at the RWTH, continued with a lecture on the “EU Climate Law and Coal Phase-out in View of the Russia-Ukraine War”. He emphasised that a solidarity-based effort by all EU member states to reduce CO2 is needed to achieve European climate neutrality by 2050 at the latest. To this end, Germany should take on a pioneering role and strengthen its solidarity with the EU. In order to accelerate CO2 reduction at the European level, more and more recommendations are being made by the European Commission, which are being implemented in national law in many places. In this context, Frenz drew attention to the current situation with regard to the Russia-Ukraine war, as the shortage of natural gas is giving rise to the discussion of extending lignite production (Figure 2), making it difficult to achieve the national CO2 reduction targets for 2030, especially as the duration of the war is uncertain. The possible extension of lignite-based power generation may cause the climate targets to be missed if stronger efforts are not made elsewhere. In addition, the chemical industry is also in danger of failing due to the shortage of natural gas insofar as it produces paints for wind turbines and is thus indirectly part of sustainable energy production. Furthermore, due to the political-economic situation, units in power plants cannot be taken off the grid as planned, as there is no planning certainty in these times. At the same time, the prices for electricity and natural gas are rising at a rapid pace, placing a burden on the country’s citizens. These price consequences hit socially weaker citizens extremely and lead Germany into a social imbalance. Therefore, all measures must be brought into the field to avoid energy bottlenecks and thus provide relief for citizens. These measures should be implemented immediately, said Frenz. Therefore, the expansion of coal-fired power generation must be considered due to the Russia-Ukraine war, firstly because ecological concerns do not always take precedence over economic concerns and secondly because the European Court of Justice (ECJ) also assigns a possible priority to national energy supply. On 7th and 8th July 2022, the Bundestag and Bundesrat approved the recommissioning of coal-fired power plants that had already been placed in reserve. In addition, consideration should be given to whether efficient coal-fired power plants remain on the grid and inefficient ones are taken off the grid. This must be considered on a pan-European basis, said Frenz.

Afterwards, RA Dirk Teßmer, Frankfurt/M. in Germany, spoke about the continued admissibility of expropriation and resettlement for the extraction of lignite in view of the coal phase-out. First of all, property is an elementary fundamental right and cannot be overturned by an approval of a business plan. This approval of an operating plan does not imply a right to expropriation and can be challenged, said Teßmer. In addition, the state government’s land-use planning decisions on lignite policy provide the basic guidelines for lignite planning for the state of North-Rhine Westphalia. In addition, with these guiding decisions the state government is planning the concept of lignite mining in the Rhenish mining area for the long term. In particular, the state government determines in its guiding decisions the extent to which lignite mining is necessary for the future energy supply in North-Rhine Westphalia. In a ruling of 17th December 2013 by the Federal Constitutional Court (BVerfG), this approach of the state government was confirmed. Specifically, the resettlements of Holzweiler and the Hauerhof are mentioned. Furthermore, Teßmer stated that the compatibility of state interventions in fundamental rights are dependent on the compatibility with Article 20a of the German Basic Law (GG). This states that the state has responsibility for future generations and protects their livelihoods through legislation. Here, Teßmer referred to the growing importance of climate protection from the decision of the BVerfG on 24th March 2021, according to which Article 20a of the GG obliges the state to protect the climate and thus to be climate neutral. However, this article does not enjoy unconditional priority over other concerns, but must be balanced with other constitutional goods and principles in the event of conflict. According to the report of the International Panel on Climate Change (IPCC), however, climate change is advancing ever further. Teßmer bases his argument on this serious case. Based on the previously mentioned arguments, Teßmer concluded that § 48 KVBG is unconstitutional. Also against the background that the promised production volume for the Rhenish mining area is unconstitutional as a result of the 1.5 °C target of the Paris Agreement, Teßmer said that the energy policy necessity is based on a false assumption.

In contrast, RA Tobias Masing, Berlin/Germany, elaborated on the admissibility of expropriation and resettlement for the Garzweiler II opencast mine from the point of view of the RWE company. Masing began by outlining the current situation over time. In 1995, under the SPD-led government, the lignite mining plan was approved. Shortly afterwards, in 1997, mining law approval was granted for the general operating plan, which was finally confirmed by the Federal Constitutional Court at the end of 2013. Furthermore, in 2019, the Arnsberg district government approved the main operating plan for the Garzweiler opencast mine from 1st January 2020 to 31st December 2022. This constitutes a plan in accordance with the Federal Mining Act (BBergG) and substantiates the definition of the 1995 Garzweiler II lignite plan and the 1997 Garzweiler general operating plan. A new main operating plan is already scheduled for 2023. The expropriations are legal insofar as they can be justified on the basis of § 77 and § 79 BBergG. § 77 BBergG (purpose of the assignment of land) states: “(1) Pursuant to the provisions of this chapter, an assignment of land may be carried out at the request of the entrepreneur insofar as the use of a plot of land is necessary for the establishment or management of an extraction operation or processing operation, including the associated activities and facilities referred to in § 2, para. 1, (1–3). (2) The use shall be necessary in particular if the project corresponds to a technically and economically appropriate operational planning or management and the provision of land of the operator for this purpose is not possible or therefore unreasonable because the use of such land is indispensable for other purposes of the kind referred to in subsection (1)”. In addition, § 79 of the BBergG sets out the conditions for the permissibility of the assignment of land, which states: “(1) The assignment of land is permissible in individual cases if it serves the public good, in particular the supply of raw materials to the market, the maintenance of jobs in mining, the continuation or improvement of the economic structure or the sensible and planned extraction of the deposit are to be secured, and the purpose of the assignment of land cannot be achieved in any other reasonable way, taking into account the site-specific nature of the extraction operation. (2) The assignment of land requires that the beneficiary of the land assignment: 1. has made serious efforts a) to acquire the land on the open market on reasonable terms, in particular, insofar as this is possible and reasonable for him, by offering suitable other land from his own assets, or b) has made unsuccessful efforts to agree on a relationship of use on reasonable terms sufficient for the implementation of the project, and 2. makes a credible case that the land will be used for the intended purpose within a reasonable period of time.” According to Masing, these clear legal formulations are the basis for the land cessions in the Garzweiler case. Furthermore, land cessions are possible even without further coal extraction and the behaviour of the companies is all-encompassing in terms of mining and mining law activities. Especially with regard to § 77 BBergG, Masing saw no reason for refusing expropriation, especially since expropriation refers to the present and the future is uncertain in ten years. What is at stake here is the extraction of raw materials in the interest of the common good.

The last speaker at the colloquium was Christoph Becker-Berke, head of mining and planning law at RWE Power AG, Essen/Germany, who presented the company’s view and actions. He stated that opencast mines in general have to be seen as a dynamic system, also with regard to expropriation and political compromises. In the course of the colloquium, questions repeatedly arose regarding groundwater supply and its monitoring. Becker-Berke explained that groundwater models are essential for RWE’s opencast mines, also with regard to their closure and rehabilitation. He went on to explain that the reclamation would consist of creating a local recreation area in the form of a lake. However, in order to be able to carry out this project, a mass extraction of stable material would have to be carried out. This is needed to secure the embankment. In addition, a planning procedure was initiated, which provides for the construction of the Rur pipeline into the open pit in order to accelerate the filling of the open pit. Becker-Berke also addressed the current energy policy situation. He noted that electricity generation from renewable energies has remained unchanged for two years. In addition, the federal government is reactivating three power plant units and putting them on safety standby so that in the event of an emergency there is no need to fear power outages because Russian gas will no longer be available in the foreseeable future. To do this, RWE Power has to carry out overhauls to the tune of 100 M € and create jobs in the three- to four-digit range. Of course, the Russia-Ukraine war plays a major role here, as Frenz mentioned at the beginning. However, Becker-Berke saw power generation as a global challenge not only against the background of the war, but also with regard to climate change. RWE also sees this as a challenge and is setting the course for structural change in the Rhenish mining area. The structural change is being driven forward with investments in photovoltaic (PV) plants, wind farms and H2-ready gas-fired power plants (Figure 3). In the last two years, 200 MW of wind turbines have been installed and put into operation. In addition, PV plants have already been approved for 2021. All in all, RWE Power is taking a variety of measures to drive structural change, both nationally and regionally.

The colloquium vividly illustrated the current problems and the various positions represented on the coal phase-out. On 17th January 2023, another virtual follow-up colloquium will be held on the topic of energy supply security and domestic raw material extraction.

References / Quellenverzeichnis

References / Quellenverzeichnis

(1) https://www.buzer.de/gesetz/5212/a72028.htm, abgerufen am 08.07.2022.

(2) https://www.gesetze-im-internet.de/bbergg/__79.html, abgerufen am 08.07.2022.

Author / Autor: Maximilian Lübeck B. Sc., Lehr- und Forschungsgebiet Berg-, Umwelt- und Europarecht der RWTH Aachen University, Aachen/Germany