Case against Tesla: Are German environmental groups abusing their rights to sue?

A general view shows trees cut down at the determined site of the Tesla Gigafactory in Gruenheide, Brandenburg on 18 February 2020. EPA-EFE/HAYOUNG JEON [HAYOUNG JEON/EPA]

Two environmental associations have brought a case against the clearing of forests for a new Tesla factory in Brandenburg, saying they want to protect the environment. But is it possible that these associations are not seeing the bigger picture and are acting against their own cause? EURACTIV Germany reports.

The construction of the new Tesla factory in Brandenburg is making waves because it promises to create 12,000 new jobs in the Grünheide municipality and also give a major boost to the development of electric cars, which are urgently needed for environmental protection.

However, the project is stalling even before the building permit has been granted, after two environmental associations made use of their right to sue and lodged an objection against the early clearing.

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This has caused controversy and indignation.

“If the fight against climate change is to succeed, rights of action against investments in ecological infrastructure must be restricted,” tweeted Karl Lauterbach of the Social Democratic Party (SPD).

And the conservative CDU/CSU Union’s economic policy spokesman, Joachim Pfeiffer (CDU), also said that environmental law matters are given high priority in Germany “while other aspects of the common good are not given the same”.

So, does environmental protection, which enjoys a special role through the right of action by associations, stand in the way of Germany’s industrial interests?

The debate is by no means new. The coalition agreement between the CDU/CSU and the SPD already states that the ruling parties want to review and restrict the right of associations to take legal action.

“In the case of infrastructure projects of national interest, we can no longer allow every environmental and nature conservation association to file lawsuits,” CDU Secretary-General Paul Ziemiak said last September.

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On average ten credits for each industrial construction project

The Tesla case raises the question of the extent to which the environment and the economy are played off against each other.

The Federation of German Industry (BDI) sees an unjustified “primacy of nature conservation over all other concerns” and calls for a quicker approval procedure. “If no decisive countermeasures are taken now, Germany as an investment location is in danger of suffering lasting damage,” said BDI President Dieter Kempf.

In an interview with EURACTIV, Catrin Schiffer, an environmental lawyer for the BDI, confirmed that the right of action by associations creates a great deal of uncertainty for project promoters and investors in Germany.

“Anyone approaching a construction project needs to know whether they will receive a permit in two years or perhaps only in five years’ time,” Schiffer said. The reason for the slow approval procedures is the extremely time-consuming examination by often understaffed authorities needed to prevent lawsuits in the future.

“They hedge themselves 100% and today they demand on average ten credits for a construction project, compared to just two back in the day. This, of course, delays the process massively,” Schiffer added.

No longer excluded

In Germany, environmental associations today have such extensive rights of action since the so-called ‘preclusion’ was abolished in 2017.

Until then, associations were only able to file legal objections to projects if they had previously expressed their objections to a project in good time and were otherwise excluded (“preclusion”). In this way, the court was able to include all votes and arguments in the decision-making process, and project promoters were given legal certainty.

But in 2015, the European Court of Justice (ECJ) ruled that this practice was not compatible with EU law. It cited the Aarhus Convention, which is an international agreement that grants the public “wide access to justice”. As a result, Germany amended its Environmental Appeals Act in 2017 and deleted the exclusion.

Critics of the law on legal action by associations have since been in favour of restricting the possibilities of legal action in Germany once again, and even the coalition agreement states that the ruling coalition wants to “work at EU level for the reintroduction of the preclusion”. Germany’s transport and digital infrastructure ministry (BMVI) commissioned a legal opinion on this matter at the end of 2019.

The BDI also advocates such a restriction. “It is not only a matter of making proceedings faster. We want the processes to be safer for investors,” emphasised BDI lawyer Schiffer.

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Abuse of rights in the name of the environment?

From the industry’s point of view, associations that are not local should at least be excluded from the possibility of legal action.

In the Tesla case, for example, one of the two plaintiffs was the “Association for Landscape Conservation and Species Protection in Bavaria” (VLAB), which, as a successor to BUND Bayern, has since become independent and is now active in the “anti-energy transition scene” as part of the “Initiative Vernunftkraft”, said BUND state director Axel Kruschat.

The lawsuit filed by VLAB against the Tesla factory in faraway Brandenburg is considered by many to be an example of the abuse of the right of association action.

“It is doubtful whether climate change deniers and opponents of the energy turnaround really represent environmental protection interests,” the legal policy spokesman of the SPD parliamentary group, Johannes Fechner, told business newspaper Handelsblatt.

The Federal Environment Agency should, therefore, check whether VLAB actually meets the criteria for eligibility to file a complaint, he added.

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There is always some abuse

In most cases, the right to sue would be used by serious associations for equally serious reasons, according to lawyer Schiffer.

“But of course, like everywhere else, there is also abuse when it comes to the right of action by associations. This is a real pity because it undermines environmental protection in places where it is appropriate and important,” said Schiffer.

Naturschutzbund Deutschland (NABU)’s bird protection expert, Lars Lachmann, is well acquainted with the right of action for associations, especially because of his involvement in the environmental NGO’s lawsuits against wind farms.

Large environmental protection associations would very carefully consider if and when they go “into battle” with legal action, Lachmann told EURACTIV. That is because a lawsuit costs an association around €20,000.

Some smaller associations, therefore, allow lawsuits to be financed by other interest groups, such as citizens’ associations against wind farms. Lachmann believes that this often undermines the first concerns of environmental protection.

“It is in our own interests to deal responsibly with our right to take legal action and to do so only for crystal-clear environmental protection concerns,” he said.

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Lawsuit-ridden wind industry

Germany’s onshore wind industry is a clear example of the struggle between economic and environmental interests as its current crisis can, in part, be explained by numerous lawsuits filed by local residents. The duration of approval procedures has almost doubled in recent years and now takes an average of 700 days.

Here too, environmental and species protection aspects are often a bureaucratic stumbling block – particularly since wind turbines are essential for the energy transition.

For this reason, there are repeated calls to limit the scope for legal action in this area.

Corresponding proposals were recently found in Economy Minister Peter Altmaier’s controversial first draft of the Coal Phase-out Bill. However, in order to reintroduce the preclusion, for example, the international Aarhus Convention would have to be amended, which according to NABU’s Lachmann would be unrealistic.

Alternatively, the circle of associations entitled to file suits could be restricted or their periods for objection shortened.

“But in the end, these would be lazy procedural tricks against the environmental associations,” said the expert. Ideally, environmental representatives should be involved in project planning from the outset so that no legal action is taken in the first place.

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[Edited by Zoran Radosavljevic]

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