An administrative court in Germany has ruled that permission to build the country’s newest coal plant, Datteln IV, was granted illegally, with a judge citing “striking errors” in decisions by local authorities, the environmental law charity ClientEarth reported in a release yesterday.
The ruling comes scarcely a year after the plant went into operation near Dortmund, with 500 protesters marking the occasion and #FridaysforFuture’s Luisa Neubauer declaring it “a post-factual power plant. The facts speak for themselves.”
This week’s decision on the court challenge by local residents and the North Rhine Westphalia branch of Friends of the Earth (BUND NRW) “removes one of two legal grounds the hard coal plant needs in order to keep running,” ClientEarth states. “The residents already have a second case against the operating permit—the second legal ground—in the pipeline. If Datteln loses both legal bases to operate, its activities must cease.”
With the climate emergency and Germany’s 2038 coal phaseout deadline on the agenda in national elections next month, “this ruling is yet another message for any political leader or company still backing coal,” said ClientEarth lawyer Francesca Mascha Klein. “This plant has always been a disaster—based near a children’s hospital, and on the doorstep of hundreds of homes, its toxic emissions and climate burden should have prevented it ever being approved.”
With citizens facing dire climate impacts, “Germany could and should be a leader in pioneering a clean energy transition,” she added. “Instead, citizens are having to force government and companies’ hands in the courts.”
Yesterday’s media release traces community resistance to the project back to 2005, when “an initial challenge by residents saw the plans for the plant overturned. An injunction by BUND NRW in 2009 to stop construction, and the application to revoke the preliminary permit in 2012, were both successful in court. This removed the legal justification for the plant.”
And no wonder. “The plant emits heavy metals and toxic substances including mercury, lead, and arsenic, polluting the air and water and presenting health threats from cancer to neurological disorders,” ClientEarth states. “An additional threat to residents may be Legionnaire’s disease, as bacteria collects in airborne water droplets from cooling towers.”
And yet, “instead of stopping construction, the local authorities instead came up with a new set of plans and issued fresh approval on that basis,” ClientEarth says.
“The chimney is 180 metres high and I can see it from my garden. It’s a constant reminder of the toxic emissions coming from the plant, so I no longer want to take my grandchildren outside to plant vegetables with me,” one of the plaintiffs, long-term Datteln resident Rainer Köster, said in an earlier ClientEarth release in December. “Although there’s been success after success in court, Datteln IV went ahead regardless. We feel abandoned by politicians and are deeply concerned for our future.”
The organization says financiers and politicians have lined up against the plant, with investors expressing “frank dissatisfaction” about the project. In a March 16, 2020 to the CEO and Board of Fortum, a Finnish-owned company that was then in the process of acquiring the plant’s owner, German utility Uniper, a group of eight major investors cited the momentum toward a faster coal phaseout and criticized Fortum’s support for Datteln IV.
“We believe opening the plant is not compatible with an ambitious decarbonization trajectory and endangers the 2030 deadline for phasing out coal in the OECD—required to keep emissions within the critical 1.5°C carbon budget,” they wrote [pdf]. “Additionally, we believe it sends the wrong signal on the year of COP 26 in Glasgow, where governments are expected to increase the ambition of their emissions reduction commitments.” [COP 26 was later postponed to this year because of the COVID-19 pandemic—Ed.]
Coal-fired power generation “faces an increasingly negative economic outlook in Europe as the cost of renewables fall and carbon prices rise, with 79% of EU coal generating capacity already running at a loss,” the investors added. “New coal plants broadly lack a social licence in Europe, exposing the funding companies to reputational risks,” and “new coal-fired projects may increasingly become subject to successful and wide-ranging legal action.”
From Helsinki, Environment and Climate Minister Krista Mikkonen added her voice to the concern about a Finnish company involving itself with the plant. “For the sake of the climate we have to get rid of coal plants, not open new ones,” she tweeted last April, not long before the plant opened. “I encourage Fortum to actively seek a solution in order to ensure that its subsidiary Uniper withholds from opening the new Datteln coal plant.”
In May, Uniper said it would consider an earlier shutdown for Datteln IV if the German government accelerated its own plans for a 2038 coal phaseout. The company had not commented on the court ruling as The Energy Mix went to virtual press last night.