Nature protection has now moved onto the agenda for Hambach lignite mine. Environmentalists have set up a camp on the site and the Berlin-based German Federation for Environment and Nature Conservation (BUND) has petitioned for legal protection as an environmental organisation. Can habitat and species protection as part of EU legislation stop lignite mining in its tracks?
1 Current situation
Glückauf Hambach!? The main operating plan 2018 to 2020, which provides for the continued extraction of lignite at Hambach opencast mine (Figure 1), has been approved by the District Government of Arnsberg. This plan forms the basis for the continuing operation of the lignite mine from 1st April 2018 to 31st December 2020. And yet it can still be opposed by the nature conservation movement. The Berlin-based German Federation for Environment and Nature Conservation (BUND) has already appealed to the Higher Administrative Court (OVG) in Münster. The framework operating plan, like its predecessor for the current main operating plan, were approved by the Administrative Court (VG) in Cologne in a ruling of 24th November 2017 (14 K 1282/15), whose grounds have only just been published. Is the continuation of Hambach mine therefore assured?
2 Uncertainty about habitat protection areas?
The OVG Münster (in a ruling dated 28.11.2017, 11 B 1362/17) has already provisionally halted logging operations in the Hambach forest and has made it clear that the existence of a habitat protection area needs to be verified. Yet this position may well have something to do with the fact that Germany had in the first place not registered enough habitat protection areas for the European Commission to earmark as part of its Europe-wide Natura 2000 network. And in any case, in order to ensure that sufficient land would be available for consideration all areas that satisfied the criteria laid down in the Habitats Directive and its annexes, and which the member states could therefore have declared to the Commission as habitat protection areas, were being viewed as potential habitat sites. Hambach forest could also have fallen into this category as according to the currently held information based on an expert report commissioned by the mine operator RWE Power AG, Essen/Germany, from the Kiel Institute of Landscape Ecology the area is home to two average-sized nursery colonies of Bechstein’s bat, one of the species listed in Annex II of the Habitats Directive, along with a pair of the habitat types also listed in Annex I, namely two specific hornbeam forests. The BUND is therefore objecting to the omission of Hambach forest from the European Natura 2000 network.
Meanwhile Germany has now registered a sufficient number of such sites and the Commission has also specified these as habitat protection areas. This also applies to hornbeam forests and habitats for the Bechstein’s bat. In fact, Germany is not obliged to nominate all potential habitat protection zones as areas of Community importance but could legitimately make its own selection. This was also not disputed by the Commission; in fact, the latter called a halt to an infringement case that had been brought because of inadequate notifications of the Bechstein’s bat and of a hornbeam forest habitat. The basis for this characterisation as a habitat protection area therefore no longer exists. In any case, in the expert opinion of the Kiel Institute of Landscape Ecology there is no pressing need for any amendments to be made because of functional deficiencies. The VG Cologne in its ruling of 24th November 2017 (14 K 1282/15) also rejected the retrospective inclusion of Hambach Forest into the Natura 2000 network. The BUND subsequently opposed this with an application to allow the appeal against this decision. It was then up to the OVG Münster to decide on the matter.
At most this is all really about moving the boundaries of already recognised habitat protection areas. This would then allow an area that was not originally acknowledged as a habitat protection zone to become one. The extent to which such a dynamic concept applies is however a matter of some controversy. After all, delineated area boundaries have already been specified. An error correction can therefore only apply in exceptional circumstances, such as when the assumption that the original area delimitation was correct can be challenged with sufficient certainty following the conclusion of the selection procedure (Fed. Admin. Court ruling of 14.02.2010 – 9 A 5.08, BVerwGE 136, 291, recital 39; for more see Frenz, in: Frenz/Müggenborg, Fed. Nature Conservation Act, 2nd edition 2016, § 31 recital 30 ff.). In any case, the basis for any extension of the area boundary is that areas that have not been formally recognised have some connection with an established habitat protection zone and meet the relevant protection criteria. One approach could be that the Bechstein’s bat is protected in the Norvenich Forest, which is some 7 km away from Hambach, and that the creatures have now transferred their foraging activities into the Hambach woodland. However, this would require more detailed evidence in order to impose an extension of the protection area (Fed. Admin. Court ruling of 28.04.2016 – 9 A 9.15, BVerwGE 155, 91, recital 99 – Elbe crossing A 20).
3 Species conservation
Irrespective of this, species protection can still come into play. For such an intervention to take place it only requires one of the priority species listed by the member states in accordance with Annex I of the Habitats Directive to be present. Such wildlife species must not be caught or killed nor must they be seriously disturbed during the breeding, rearing, moulting, hibernation or migration seasons. Their breeding and resting sites must also not be damaged or destroyed, no more than the habitats of wild plants. Quite a few motorway and wind farm projects have already been thwarted by these stipulations. The Arnsberg District Government has set up a species-specific monitoring programme under the heading “Preserving the natural occurrence of bats at Hambach mine and its environs” and this has been running since 2004. The survey’s findings are documented in regular monitoring reports.
From this it is therefore not yet clear exactly how Hambach mine will proceed. The decisive factor will be the extent to which species protection will prove to be sufficient given the protec-ted species that are now present on site. While the “grandfather clause” is indeed recognised at European level, it has not yet been successfully invoked against habitat or even species protection regulations. Even centuries-old practices such as the pot fisheries of the Steinhuder Lake have fallen victim to the habitat protectionists. This applied even though the otters that were threatened by these activities did not become established until after the site had been designated a protected area. The scope of the protection then had to be extended accordingly (OVG Lüneburg, ruling of 03.03.2015 – 4 LC 39/13 and 4 A 5418/12).
Nevertheless, the framework operating plan for Hambach mine has in fact been confirmed by court decision. Even the European Court of Justice (ECJ) has stressed the importance of final adjudications that must not be questioned further (ECJ, ruling of 16.03.2006 – C-234/04, recital 20 f.; for more details see Frenz, DVBl. 2018, forthcoming edition, and on OVG decision above). However, the complete disregard for EU regulations and their implementation is a violation of the principle of effectiveness. In this respect reasonable justification cannot even be claimed by reference to the principle of legal certainty, as the ECJ ruled in respect of the ban on state aid in the Klausner-Holz case (ruling of 11.11.2015 – C-515/14, recital 45 f.). But provided that species protection has been adequately assessed as part of the approval process for the framework operating plan, as the VG Cologne affirms, and this is deemed to be final, then this factor has been sufficiently and appropriately taken account of. This then becomes binding for the main operating plan. Having said that, a continuous programme of observations must be put in place to ensure effective species protection. The Arnsberg District Government has specifically set up an ongoing monitoring regime for this purpose and there must be no deterioration in the conditions that have been prescribed. If any shortcomings occur in this respect there will be no avoiding a revision of the operating plan.
Circumstances would therefore seem to suggest that ongoing operations at Hambach are secure. However, there is always the possibility of a surprise in store, particularly when it comes to the species protection issue. Yet species protection too has its pitfalls. For the OVG Münster, in presenting a submission to the ECJ, first instigated the claim brought by the environmental organisation – and this made it possible for the group to bring an action against Hambach opencast mine based on habitat and species legislation, though this does not confer subjective or individual rights. But as the old saying goes: in court and on the high seas a man’s fate lies in God’s hands. And so the suspense continues for Hambach mine.
In any case one thing is fundamentally clear: mining law no longer wins over constitutional law, as it used to do, and in fact habitat and species protection as an EU requirement now wins over Germany’s nationally geared mining legislation, which also includes the EIA ecotest provisions. This could only be avoided if mining legislation were also to be organised uniformly throughout the EU. However, could that lead to greater leeway for the mining companies?