RWE Power AG is allowed to excavate the land of a farmer in Lützerath for the extraction of lignite in the Garzweiler open pit mine and to take the necessary preparatory measures. The Higher Administrative Court for the State of North Rhine-Westphalia (OVG NRW) today rejected the appeals of the farmer and two tenants, which had previously also been unsuccessful before the Aachen Administrative Court (VG Aachen).

The farmer and the tenants of houses on his farm, which are in need of repair, had lodged applications for interim relief against the decisions of the Arnsberg district government (Bezirksregierung Arnsberg) granting RWE Power AG premature possession of the farmer’s properties located on the brim of the Garzweiler open pit mine in Lützerath. This enables RWE Power AG to carry out preparatory measures such as clearing of land or the demolition of buildings and then excavate the properties for the extraction of lignite. The grant of premature possession preempts the expropriation of the farmer, with which ownership of the properties is transferred to RWE Power AG.

In the reasons for its decisions, the 21st Senate of the Higher Administrative Court stated: The reasons put forward by the applicants in their appeals do not provide any grounds for changing the interim relief decisions of the Aachen Administrative Court. In large parts, they do not deal with the grounds of the interim relief decisions in a sufficiently concrete manner. The Administrative Court has explained in detail that the current basic energy policy decision in favor of lignite mining and lignite-based power generation is compatible with the constitutional requirement of climate protection and that the overall weighing of the interests affected by lignite mining by the Arnsberg district government, also with regard to climate protection, is not objectionable. The very extensive statements in the appeals regarding climate protection, the climate targets of the Paris Agreement and the so-called climate decision of the Federal Constitutional Court (Bundesverfassungsgericht) of March 24, 2021, do not sufficiently address these considerations in the interim relief decisions. Accordingly, the applicants do not show that the examination of the Administrative Court is erroneous in law. To a large extent, the submission rather concerns climate policy demands that have no basis in the current law and would have to be addressed to the legislature. In particular, the applicants do not show that an immediate end to lignite mining and power generation can be derived from the climate decision. The legal provisions required by the Federal Constitutional Court for the distribution of a national CO₂ residual budget are still largely missing; regulatory approaches already created are ignored in the appeals. In view of this, the applicants do not substantiate that the Arnsberg district government should have examined how the CO₂ emissions from the opencast lignite mine relate to the national residual budget according to a distribution standard of its own choosing.

The farmer’s appeal does also not present alternative opencast mining locations for „sparing“ his properties that would not require the withdrawal of other private property and therefore represent a less severe intervention. According to the case law of the Federal Constitutional Court on expropriation, it is irrelevant whether the lignite under his properties is indispensable for the energy supply.

The urgency of the continuation of the opencast mine – which is required for a grant of premature possession – is in any case evident from the fact that two lignite-fired power plants are supplied „just-in-time“ with coal from the opencast mine. A (substitute) supply from the Hambach open pit mine could not be realized without major effort, if at all. Nor does it matter whether the electricity supply in NRW or Germany would be jeopardized, if the lignite supply to the power plants from Garzweiler falls short. It is sufficient for a grant of premature possession that the supply of lignite to the energy market is at risk.

The court decisions are unappealable.

Case numbers:        21 B 1675/21 (farmer; first instance: VG Aachen 6 L 418/21)

21 B 1676/21 (tenant; first instance: VG Aachen 6 L 433/21)

Further information

Various lawsuits (main proceedings) against public authority decisions in connection with the Garzweiler opencast lignite mine are still pending before the Aachen Administrative Court, for example against the main operating plan 2020-2022, the expropriation and against the decisions on granting premature possession.

In another decision, the Higher Administrative Court today rejected the appeal of an applicant who „occupies“ a meadow in Lützerath and for whom the Aachen Administrative Court had denied the violation of his own rights by the decision to grant premature possession (21 B 47/22; first instance: VG Aachen 6 L 662/21).