Menschenrecht vor Bergrecht

Even with the coal phase-out agreed, RWE seems to think we still need more coal. So, the company wants to demolish our villages, to make the already massive Garzweiler mine even bigger. In the Garzweiler II zone – the area they plan to dig through – there are about 740 million tonnes of coal lying underground, which the company would then burn in power plants. We believe that, in the face of the climate crisis, there’s no way that should happen.

No, RWE cannot simply bulldoze villages. If people don’t want to sell their land to the company, RWE can file an expropriation application to the competent local authority. Expropriation, in mining law, is called a cession of land (Grundabtretung). If an expropriation becomes effective in law, the way is clear for RWE to reduce whole villages to rubble, to get at the coal underneath. Up till now, the German state has given permission for expropriations, because providing electricity through coal-burning has long been prioritised over the fate of the people affected.

Whether an expropriation can be legally justifiable is governed by constitutional law and by Federal Mining Law. According to national law, people can only be deprived of property when it is seen to be necessary for the overarching public interest (according to the Constitutional Court’s ruling on Article 14(3) of the Constitution). But this is not the case when the project being proposed, for which people would need to be evicted, isn’t in line with all other legal provisions – including, for example, environmental laws.

The legal basis for relocating people for coal mines exists because of mining law. According to this law, mining companies like RWE can apply for expropriations, i.e. expropriating a certain piece of land and the property on it. Mining law says that expropriations can be justified when the reason is ‘in the public interest’ – namely, providing the market with commodities (raw materials).

But it must be remembered here that expropriation remains a real infringement of fundamental rights. We should also bear in mind that burning coal emits CO2 – exactly the opposite of what should be happening as governments strive to combat climate change.

For a secure energy supply, we do not need any more climate-damaging coal in Germany – the sector needs to expand our renewable energy capacity, so that we have clean, secure power after the coal exit.

Up to 2018, 372 settlements had already been partially or fully destroyed for lignite mining. More than 125,000 people had already lost their houses to climate-damaging lignite. That is far, far too many. RWE is one of the biggest destroyers of homes in Germany.

As soon as evictions have been definitively confirmed, you no longer own the land you lived on. The coal company then owns that land, and is free to clear it.

Once the responsible authority has approved the expropriation, affected people can bring the matter before the competent administrative court. It can often take a long time for the final ruling to be reached. It has happened in the past that expropriations have been ruled unlawful.

We have called on RWE to formally announce that no more villages will be destroyed for coal. If they fail to make this announcement, we will take legal steps.

Then, we want to have the legal question of expropriation answered by the courts on the example of a piece of land that sits on the boundary between Keyenberg and the Garzweiler mine. If we don’t get a promise from RWE that it won’t touch it, we will proceed with legal measures to defend it. We have resolved not to negotiate with RWE over its sale. We have formally notified the regional government and the local authority of Arnsberg this.

If RWE forges ahead with an attempt to claim the land, we are ready to take the next steps. If they want to go ahead and expand the mine as planned, they would need to apply for permission for forcible expropriation. If the Arnsberg authority decides that we should be expropriated so that RWE can dig for coal, we have pledged to challenge this decision in court. Then it would be up to the court to decide whether the evictions are legally and constitutionally permissible.

At the moment, this is unfortunately the only way for us to get clarity on whether eviction from our home can be legally justified, in a time of intensifying climate change, and after a government agreement to phase out coal.

No amount of money in the world could make us want to leave our homes. That’s why we’re fighting for our fundamental rights – in court, if it comes to it. We believe that expropriations for coal are no longer in the public interest, and want the court to confirm this.

In Germany, even more people are facing expropriation for projects that pose a direct threat to the climate – by the Rhenish mining district, in Lusatia and in the Leipzig region. If we are successful in our challenge, that could help these people too.

The climate is changing, and activities harmful to the climate and environment, like burning lignite for power, can no longer be claimed to be in the public interest. Instead, we should be using cleaner technologies to provide our energy. RWE’s legal argument for demolishing of our villages therefore no longer stands up. If necessary, we’ll argue that in court, because we think that the right to property, enshrined in the German Constitution, is being undermined by these expropriations.

There’s still no formal application or offer from RWE to take the piece of land with which we want to clarify our legal position. We don’t want to hang on any longer for RWE to decide if it’s going ahead – so we are taking the only legal step available to us. We are calling on RWE to formally announce that it will force no more evictions for coal. If that doesn’t happen, we have already formally refused to negotiate with RWE over the sale of our land. Therefore, RWE is in a position to file for formal expropriation.

We are also alerting the regional government, and the local authority of Arnsberg, which is responsible for the expropriation. This is a political question too – the regional authority has never given us the reassurance that, in view of the coal phase-out, we can stay in our homes.

Germany prides itself on upholding human and constitutional rights. Expropriations that aren’t in the public interest damage the right to property, which is a foundational constitutional right. With the climate crisis intensifying, these decisions should favour human rights, not activities that pose a threat to the climate. In short, that’s what ‘Menschenrecht vor Bergrecht’ – ‘human rights before mining rights’ – stands for.

We united as a solidarity group, to fight to save our hometowns. To help us with this ambitious project, we sought support from likeminded people and groups, who would stand by our side during this emotionally taxing process.

Environmental law organisation ClientEarth is providing financial support on the case, due to the often prohibitively high court costs that can arise from this kind of case.

Already destroyed – or currently being destroyed:

Residorf, Garzweiler, Priesterath, Stolzenberg, Elfgen in Grevenbroich, Belmen, Morken-Harff, Eprath-Tollhaus, Omagen, Königshoven, Otzenrath, Spenrath, Holz, Pesch, Immerath, Lützerath, Borschemich

Villages still under threat of destruction:

Berverath, Keyenberg, Kuckum, Oberwestrich, Unterwestrich sowie die Holzweiler Höfe

These are our homes and we desperately don’t want to leave them. Some of the group have made little paradises for themselves, or have been rooted in the village for generations – some are in the years of their lives where they feel settled and do not want to move. To give up your home is a deeply destabilising experience and leaves scars that don’t heal.

Many of the villages were and are of historical importance – the site of important historical finds or the birthplace of local legends.

• In Morken, the royal grave of the ‘Herrn von Morken’ was discovered, dating back to the 6^th century. While the finds were saved, the grave itself has been irretrievably destroyed.

• The 17th century Immerath mill, a defining feature of the village, was torn down by RWE Power in 2018.

• Borschemich: The well-preserved moated castle “Haus Palant”, which had been restored in 1600, had already been dry for some years due to the mine’s effect on groundwater levels – and was eventually ripped out to make way for mine expansion.

• Keyenberg: The primary school, which has been in local records since 1606, and got an extension in 1963, is now in danger of being demolished for the Garzweiler II mine.

• Epprath was the origin of the legend “The Werewolf of Epprath”, the inspiration for countless novels and songs.

RWE does not hesitate at flattening places of worship. The argument? As soon as the church bell and altar are removed, the building is no longer holy. On this basis, the company has already deconsecrated and demolished many churches and graveyards.

• In Borschemich, the St Martinus Catholic church, dating back to 1907, was destroyed.

• Also destroyed were religious sites like the St Leonhard monastery in Reisdorf, estimated to date back to 1484, and which had long been the end point for Palm Sunday processions.

• Immerath: At the start of 2018, the Neo-Romanesque ‘Immerath Cathedral’ of the Catholic parish of St. Lambertus in Erkelenz-Immerath, from 1891, was destroyed because of mine expansion.

• Kuckum: Expansion also threatens the new-Gothic church of Kuckum from 1891.

• Otzenrath: The Catholic parish church of St. Simon and Judas Thaddäus was a unique piece of architecture in Germany, made up of an octagonal nave, whose dome was made of of a single slab of granite. This design inspired the Aachener Dom. This church, too, was lost to the mine.

• Garzweiler: An entire Jewish graveyard had to be ‘relocated’.

• Graves from Christian graveyards, which had not yet completed the traditional ‘resting time’, were exhumed and moved to a graveyard in a new village. Older tombs were gathered and put into a mass grave in a new graveyard.

Germany’s Commission for Growth, Structural Transformation and Employment – known as the Coal Commission – has recommended a gradual phase-out of coal, to protect the climate.

That means 3.1 GW of lignite capacity should be phased out by 2022. The plant shutdowns involved should take place in the Rhenish mining region. Environmental groups are recommending that at least seven units of the Niederaußem and Neurath power plants should be taken offline.

Between 2023 and 2030, 6 GW more in lignite capacity should be steadily taken offline. The coal exit date recommended by the Coal Commission was 2038 – or, preferably, 2035. According to calculations by the German Institute of Economic Research (DIW), our villages, and the Hambach Forest, could be saved if that happened.

But there’s still a lack of certainty about the possible shutdowns and what they actually mean for the villages and for us, because neither the regional or Federal government has spoken up for the protection of our villages – and we’re still waiting for an official coal phase-out law.

In fact, it seems that this deadline has given RWE fresh determination to put the pressure on.

In order to check whether it’s achieving its goals of climate protection, the exit date will be reviewed in 2023.

In a vote before the final decision of the Coal Commission, four members said they could not support the late exit date, because for climate change reasons, the coal exit must be achieved by 2030. The Coal Commission’s recommendations gave us hope at first, but it quickly became clear that nothing would change for us here on the ground – we remain completely uncertain about our future.

But we’re getting more and more support. In September 2019, the union ver.di, which includes employees of coal plants, took a position on the coal exit and climate change – that they were “against the clearance of the Hambach Forest, as well as the general destruction of villages and nature for lignite mining.”

In its recommendations, the Coal Commission tells regional governments to engage in a dialogue about expropriations, to try to prevent social and economic hardship. But while an information event was held, a clear dialogue like the Commission described has never taken place. And we want to stay where we are – because there’s certainly no social or economic hardship in doing so.

The final report from Coal Commission doesn’t rule out future evictions for coal, but it does mention them, speaking of people affected by coal mining, and potentially affected by expropriations.

From the five settlements in Erklenz (Keyenberg, Kuckum, Unter- and Oberwestrich, and Berverath) which stand to be demolished to make way for the mine, RWE says 1,500 people are still threatened with eviction.

Most people are offered alternative accommodation, or new villages are even built for them – often using the name of the demolished village – for example ‘New Keyenberg’. This is designed to stop communities breaking up because of the expansion. But the new settlements can never replace the old ones – they have been conjured out of thin air, not grown organically with hundreds of years of history. A former Keyenberg resident said: “It feels like, after a long holiday, you just want to go home again. But you can’t – there isn’t a home to go to.”

There are two possible scenarios:

(1) An agreement with RWE is reached: That means that RWE makes an offer that residents willingly accept. At the end, you sign a contract with RWE and you leave your house for an agreed amount of compensation.

(2) RWE’s offer is rejected: In this case, RWE has to file for an expropriation with the mining authority. If this expropriation is approved and legally binding, the resident has to hand over their land – along with house and anything else on it that can’t be taken away – to RWE. For this, however, the resident would have to be compensated ‘appropriately’. The legal stipulations around this, however, don’t guarantee that the person would be provided with a an adequate compensation to build a new, similar house.

A long-loved home can never simply be remade – it’s unique. Some villagers also have gardens or fields, which could only ever be partially replaced in a new location. There are always other reasons a home is special. A home doesn’t necessarily need to be something obviously ‘special’ for you not to want to move. You just can’t recreate the old place in the new one. It’s our emotional connection to the place, our memories of childhood, our first meeting with our partner, our whole lives, that bind us to our homes. This is why we believe no one should have to lose their home to coal.

We will not leave our homes, because we love them. Every one of us has their own personal reasons for that. But what’s certain is that no amount of money in the world could convince us to give up our homes. That’s why we want to set a precedent, with this piece of land we own – for everyone facing the threat of eviction.

Climate protection is in the public interest; evictions for lignite aren’t. We are in the midst of a global climate crisis – but we can stop it. The ultimate protection for people on this planet is not burning lignite for energy – it’s stopping climate change. Forcing people to give up their homes for coal is, in times like these, constitutionally illogical and no longer to be tolerated.