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Shutdown showdown

June 20, 2011

Germany's energy providers are reportedly preparing to go to court to kill government plans to shut down the country's 17 nuclear power plants, according to the news magazine Der Spiegel.

Biblis nuclear power plant
Utilities say the government is taking their rightful revenuesImage: AP

Germany's major energy companies have authorized a number of prominent law firms to prepare a lawsuit against the government over plans to shut down the country's nuclear power plants, the weekly magazine Der Spiegel reports.

In its Monday edition, the magazine said the energy utilities, E.on, Vattenfall and RWE, were aiming to have Germany's recently passed nuclear power law declared unconstitutional, and then sue the government for damages - a move that could cost taxpayers billions of euros if successful.

In an assessment prepared for E.on, former Defense Minister Rupert Scholz and legal counsel Christoph Moench said the German government's exit from nuclear energy production is clearly unconstitutional.

Nuclear protester
The German public broadly supports ending nuclear powerImage: picture alliance/dpa

The reasoning behind the claim focuses on the amount of electricity from nuclear power that energy companies would be allowed to generate before they are shut down.

Lawyers for the companies reportedly argue that these remaining kilowatt hours - to be produced in the future - are the property of the energy companies and are therefore protected as proprietary rights of ownership by the German constitution.

However, Dörte Fouqet, an energy expert with the international law firm, BBH, told Deutsche Welle that any court case would be a long, drawn-out process.

"This is a Constitutional Court case, so it depends on what the court would regulate. It could mean that the Court tells the government that they have to improve the law, or make a new law. If the Court were to certify that there is a breach, then they would have to determine if there is a damage to be paid and what amount. So, I'm not so sure I would be on safe ground, if I were one of the three utilities," said Fouqet.

Illegal expropriation

Last month, the German government presented draft legislation to accelerate its phase-out of nuclear energy by 14 years. Eight plants have already been shut down, and the last plant would go offline in 2022.

The lawsuit to be filed would claim that the government's law grossly violates the ownership rights of the energy companies without providing an overriding reason - making it unlawful expropriation.

If successful in court, the 80-page assessment argues, the energy companies could sue for damages going into the "double-digit billions."

Stacks of coins in front of nuclear symbol
If successful, a lawsuit by utilities could cost German taxpayers tens of billions of eurosImage: DW Montage / fotolia

Phase-out law poorly crafted

A nuclear energy expert with the non-governmental organization International Physicians for the Prevention of Nuclear War (IPPNW) is convinced that the nuclear phase-out law will not stand up in court.

Henrik Paulitz told Deutsche Welle that "you don't have to be a lawyer to recognize that the phase-out law provides no reasons for shutting down or limiting the life spans of nuclear power plants."

"The power plant stress tests had such a limited spectrum, focusing only on some extreme situations that they never looked at ordinary situations," Paulitz said. "They mentioned no deficits, not even airplanes. This is not enough for a threat reassessment, which would have to detail compelling reasons for interfering in plant operations."

The IPPNW expert went on to say that the reasons for shutting down the reactors were diametrically opposed to the content of the legislation, and therefore "just flung the door wide open" for a lawsuit.

Paulitz even said, in his view, he would not be surprised if the government intentionally made the law so weak in order to invite lawsuits by the energy industry.

"The law is quite perfectly crafted in this direction," he said. "They wanted it that way."

Author: Gregg Benzow
Editor: Michael Lawton