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Is the Lützerath eviction unconstitutional? Expert says: "Paragraph inserted at the last minute"

2023-01-16T04:03:40.823Z


Is the Lützerath eviction unconstitutional? Expert says: "Paragraph inserted at the last minute" Created: 01/16/2023 04:51 By: Peter Seven Soon there will be nothing left of Lützerath at the Garzweiler II opencast mine, if RWE and the NRW state government have their way. © Peter Seven Is the eviction of the village of Lützerath unconstitutional, as climate activists claim? One thing is certain


Is the Lützerath eviction unconstitutional?

Expert says: "Paragraph inserted at the last minute"

Created: 01/16/2023 04:51

By: Peter Seven

Soon there will be nothing left of Lützerath at the Garzweiler II opencast mine, if RWE and the NRW state government have their way.

© Peter Seven

Is the eviction of the village of Lützerath unconstitutional, as climate activists claim?

One thing is certain: one aspect of the decision is at least unusual and distinguishes Garzweiler from all other opencast mines.

Cologne – The sign at the entrance to Lützerath marks the border: anyone who stays behind it is acting illegally.

On December 20, the district of Heinsberg announced a general decree to clear the occupied village of Lützerath - the area is owned by RWE, and the energy company wants to demolish the village to dig up the coal underneath.

This is how the residents of Lützerath live: between a hippie commune and street fighting

View photo gallery

Lützerath eviction is planned for mid-January

Around 100 activists are currently occupying Lützerath to save it from demolition.

Dozens of police officers are already on site, the clearance of the hamlet at the Garzweiler II opencast mine will probably begin on January 11th.

The responsible police in Aachen expect that the operation in Lützerath will last four to six weeks, because the activists have announced considerable resistance.

The first clashes and arrests broke out in early January.

It is disputed whether the evacuation of Lützerath is actually legal.

For the activists in the camp, the matter is clear: the eviction is unconstitutional, they say.

But is that true?

Demolition of Lützerath is based on controversial paragraphs

The point of contention is the Coal Power Generation Termination Act, KVBG for short.

The law with the tapeworm name regulates the gradual end of coal-fired power generation in Germany by 2038.

The eviction order is based on paragraph 48 of the KVBG.

"Paragraph 48 was inserted at the last minute, so to speak," says Thomas Schomerus.

He is Professor of Public Law and Energy and Environmental Law at the Leuphana University of Lüneburg.  

The abandoned villages near Lützerath - this is how they look today

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"Formally that was fine, but I'm not sure if all MPs knew exactly what they were voting on," said Schomerus.

He had the impression that the section should "not be hung on the big bell" at the time.

Garzweiler II opencast mine has a special status

Paragraph 48 of the KVBG states, roughly summarized, that the Garzweiler II opencast mine is necessary in terms of energy management and energy policy.

In 2021, the federal government at the time, together with RWE, agreed on a first version of the legal text.

"The old paragraph was screwed up from the start and, in my view, unconstitutional in its form," says Schomerus, who had set out exactly that in an expert opinion.

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My space

Anyone who can read this is acting illegally: being in Lützerath is no longer allowed.

© Peter Seven

In its original version, the paragraph was based on a NRW key decision from 2016, which in turn assumed that coal would be phased out by 2045: all the data on this were obsolete with the decision to bring the phase-out forward.

Thus, the statements in the paragraph were evidently irrelevant, according to Schomerus' conclusion.

This means that the legal text was based on demonstrably false assumptions or data that were no longer valid given the current situation.

In the meantime, the paragraph has been amended, and the rescue of the five neighboring villages of Lützerath, which should actually have been demolished, is part of the new version.

Constitutional Lawyer: Decision is “Failed in Energy Policy”

“I have not checked whether the new Paragraph 48 is unconstitutional.

He would only be vulnerable if he was obviously irrelevant," explains Schomerus.

But: "It is unusual that decisions were made about Garzweiler at this higher level, but not about all other opencast mines.

With this they probably wanted to support the NRW energy policy or RWE and make it clear that this should be the last pit.”

Garzweiler opencast mine: why whole villages are demolished

In 1983, the Garzweiler opencast lignite mine was created as a merger of the existing Frimmersdorf-Süd and Frimmersdorf-West mining fields.

The energy company RWE mines 35-40 million tons of lignite here every year.

The lignite that is used to generate energy in coal-fired power plants sometimes lies under towns.

If it is necessary to secure the energy supply, the localities have to give way.

The inhabitants are then resettled and the villages demolished.

The five towns of Keyenberg, Kuckum, Unterwestrich, Oberwestrich and Berverath at the Garzweiler opencast mine were also to be destroyed.

But the federal government, the state of North Rhine-Westphalia and RWE agreed on the coal phase-out in NRW in 2030: This means that the places are standing still.

Lützerath, on the other hand, is to be cleared and demolished.

In many villages near Lützerath you can now find yellow crosses on house walls as a symbol of protest against brown coal mining.

According to the legal scholar, the fact that Garzweiler received this special status could be called "misguided in terms of energy policy".

In his view, that was not necessary.

"On the other hand, one can say that the paragraph is not so bad after its change.

In this way it was made clear that the towns of Keyenberg, Berverath, Kuckum, Ober- and Unterwestrich would be saved.” 

Lützerath is a symbol: a banner hangs on the university campus

For Lützerath, however, the rescue issue is over.

“Now the place is also a symbol for many young climate activists.

Even here in the university there is a banner with the inscription: Lützi stays.”

It remains disputed, however, whether there is actually an energy policy and energy economic need to dredge up the coal under Lützerath.

Because a study on the Garzweiler opencast mine, in which scientists from the European University of Flensburg, the TU Berlin and the German Institute for Economic Research (DIW) are involved, refutes exactly that Ensuring energy supply in Germany.

Rather, the 1.5 degree target will be endangered if the corresponding amount of coal is burned.

If you follow this logic, the paragraph would indeed be obsolete.

Lützerath before the eviction: That has happened until now

View photo gallery

Lawyer: Law was enacted at the wrong level

The criticism by constitutional lawyer Georg Hermes from the Goethe University in Frankfurt goes in a different direction.

He says: The KVBG cannot be legal because it is a federal law.

In his opinion, however, matters that are a matter for the federal states are regulated in it.

"You can take this view," says Thomas Schomerus.

The disputed paragraph 48 in particular is not only about energy policy, which is regulated at federal level, but also about spatial planning, which in turn is a matter for the federal states: namely the question of whether and which areas of lignite mining must give way.

“But that is a discourse and ultimately the courts would have to decide,” says the legal scholar.

(pen)

Source: merkur

All news articles on 2023-01-16

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