Deutsche Umwelthilfe v. Stralsund Mining Authority

For a German language version, see: Deutsche Umwelthilfe gegen Bergamt Stralsund

The German environmental organization Deutsche Umwelthilfe (DUH) filed a lawsuit against the Stralsund Mining Authority with the High Administrative Court of Mecklenburg-Western Pomerania on July 27, 2020. The lawsuit is based on the decision of the Stralsund Mining Authority in January of the same year to approve the gas pipeline Nord Stream 2 of the Russian Gazprom Group. The approval is controversial because the calculated methane production does not include the operational impact.

Background
According to § 43 EnWG, the construction and operation as well as the modification of the facilities mentioned in § 43 sentence 1 number 2 EnWG require the approval of the competent state authority, in this case the Stralsund Mining Authority. Such a permit was issued on January 31, 2018, by the aforementioned for the construction and operation of the Nord Stream 2 gas pipeline in the Narva Bay (Russia) and Lubmin (Germany) section.

The plaintiff seeks new calculations with regard to indirect climate impacts in connection with the operation of the pipeline, such as extraction, injection and transport. Alternatively, the procedure should be submitted to the ECJ for a preliminary ruling in accordance with Article 267 TFEU. The plaintiff submits the complaint on the grounds that a greenhouse gas balance does not exist for both states concerned and that statistics of the gas industry are too superficial. Among other things, the method of measurement is of question. The so-called component-level method does not record the total emissions, but a selected area. A report by the journal Science, which operated independent measurements in the USA, showed a 60% higher leakage rate than established by the industry. This result suggests deficits in the method. The International Energy Agency also came to the conclusion that the global rate is much higher than estimated.

Point A.1.3.1 of the approval from January 2018 is also at the center of the argument. The reservation establishes that if a project has adverse effects on the environment or third parties, the scope and effects of which are not yet foreseeable at the time of the decision, a subsequent order of damage-preventive measures and / or compensation facilities and measures is needed.

The plaintiff further states that a location-based assessment is not sufficient and draws on the case law of the ECJ with regard to the EIA Directive (e.g. ECJ, ruling of September 16, 2004, case C-227/01, Rn. 53 - Commission v. Spain). The ECJ ruled that the splitting of big-scale projects must be prohibited, due to circumvention of the guideline. All of this must be interpreted in the light of the precautionary principle, which requires states to avoid environmental damage in advance, and the german climate protection requirement of Art. 20a GG.

The defendant Stralsund Mining Authority rejected the lawsuit, arguing that the operational climate impacts had been adequately recorded. In addition, it is merely a matter of a pure transport infrastructure. Gas as a substitute for coal would help reduce CO2 emissions, especially since gas pipelines are more efficient and lower in emissions compared to other transport options. The reservation in A.1.3.1 of the approval does not apply either, since the examination was sufficiently carried out. The mentioned studies have no direct reference to Nord Stream 2 and are scientifically outdated.

With its lawsuit, the DUH is therefore seeking the investigation and expansion of the component-level method to include extraction, supply and transport. Failure to do so violates Article 3 (1) of Directive 2011/92/EU, Article 1 No. 1, Article 2, Article 5 UVPG (old version) and Article 191 (2) sentence 2 TFEU and Article 20a GG.

Relevant Law and Principles

 * Energy Industry Act/ EnWG
 * Directive 2011/92/EU on environmental impact assessment (EIA)
 * Art.191 TFEU precautionary principle
 * Climate protection requirement of Art. 20a GG (Basic Law for the Federal Republic of Germany)

Status
The lawsuit before the High Administrative Court is still pending, but has been modified due to the judgement of the Federal Constitutional Court of March 24, 2021. This judgement emphasizes the binding of all state authority to the climate protection requirement, Article 20a of the Basic Law.

Takeaways
In addition to the lawsuit before the High Administrative Court Greifswald, the DUH also filed a complaint before the Administrative Court Hamburg against the Federal Office for Shipping and Hydrography, to stop the construction. Immediate execution was ordered despite the suspensive effect of the lawsuit, and the DUH will initiate further legal steps in return. In view of the decision of the Federal Constitutional Court, this decision is a definite step backwards.

Links

 * Deutsche Umwelthilfe