The Battle for Lützerath: What of Constitutional Rights-Based Climate Protection?

Shirley Wang

In January, the world’s eyes turned to a tiny, rustic, German village situated near a coal mine. Thirty-five-thousand activists, including Greta Thunberg, flooded Lützerath protesting the village’s eviction and takeover by energy giant RWE AG, a company seeking to extract lignite and expand its opencast mine. Not only has Lützerath become “an epicentre of the global struggle for climate justice” it also foregrounds a fascinating legal showdown between Germany’s constitutional rights-based climate protection and private rights.

Since 2020, as many as 300 climate activists have occupied the trees, houses, and fields in Lützerath, a small village west of Cologne in North Rhine-Westphalia (NRW), Germany. The multi-year sit-in has opposed the village’s eviction and takeover by energy giant RWE AG, a company seeking to extract lignite and expand its Garzweiler II opencast mine.[1] As Germany faces an energy crisis triggered by Russia’s invasion of Ukraine, Lützerath, or Lützi, as it has affectionately come to be known, has symbolized the debate pitting energy security against a warming planet.

Lignite is a form of brown coal that releases more CO2 than any other coal when burned, making it the world’s dirtiest fossil fuel.[2] Whether the coal is truly essential to the country’s energy security is disputed. Activists highlight studies undermining coal’s necessity in the energy crisis, ultimately arguing that Lützerath’s demolition was reckless and avoidable.[3] The federal government and RWE have commissioned studies suggesting the opposite.[4] Activists firmly maintain that extraction would jeopardize Germany’s ability to meet its commitments under the Paris Agreement.[5]

Meanwhile, the Green Party points to a controversial political compromise[6] between the German Federal Ministry for Economic Affairs and Climate Action, the Ministry of Economic Affairs, Industry, Climate Action and Energy of NRW, and RWE, which activists have coined a “dirty deal”[7]: Lützerath is to be sacrificed while the coal phase-out in NRW moves up to 2030 from 2038, and five other villages are saved. Activists have labelled government justifications to this effect as “greenwashing,” asserting that the same amount of coal would be extracted, just over a shorter period of time.[8]

The resistance in Lützerath reached its climax in early January 2023, as police units arrived to evacuate the village. By January 14, approximately 35,000 activists arrived on scene according to the organizers.[9] Police use of water cannons and physical force[10] overwhelmed the Molotov cocktails, stones, and bottles occasionally thrown by the protestors.[11] Greta Thunberg, along with other activists, was briefly detained.[12] By January 15, police had removed the remaining structures, buildings, and cable constructions in the village, completing the eviction. The last activists exited an underground tunnel the next day.[13] Lützerath now stands empty, its destruction imminent.

Police officers prevent climate activists from entering Lützerath to join further demonstrations. Source: https://bit.ly/407z1G3 (CC BY-NC 2.0).

The intensity of the protests has sparked a discussion on the uses and abuses of civil disobedience in Germany. On January 5, the Aachen administrative court upheld a legal prohibition[14] from entering Lützerath based on the “protection of private rights”—namely, those of RWE. The ruling precludes activist claims to “civil disobedience” in the name of “climate emergency” on the grounds that RWE has formal legal ownership of the village. However, police have been unable to take civil action against individual activists as their identities remain largely unknown.[15] An “eviction order” would have to be obtained against each individual, which, according to the court, would be “very time-consuming, if not actually impossible.”[16]

The physical showdown in Lützerath foregrounds a fascinating legal showdown between Germany’s constitutional rights-based climate protection and private rights. The climate activists argue that the law is ultimately on their side, citing the Federal Constitutional Court’s groundbreaking 2021 ruling in Neubauer, et al v Germany which recast climate protection in constitutional terms and unanimously ordered the legislature to follow a carbon budget approach to limit warming to well below 2°C and, if possible, to 1.5°C, compared to pre-industrial levels outlined in the 2015 Paris Climate Agreement.[17] In the ruling, Germany’s supreme constitutional court struck down parts of the Federal Climate Protection Act (Bundesklimaschutzgesetz) as unconstitutional, declaring that “the fundamental rights—as intertemporal guarantees of freedom—afford protection against the greenhouse gas reduction burdens imposed by Art. 20a of the Basic Law being unilaterally offloaded onto the future.”[18]

In March 2022, however, the Münster Higher Administrative Court determined that Lützerath was the property of RWE, rejecting a complaint from Eckardt Heukamp, the last farmer of the village, against the expropriation of land which had been in his family for generations.[19] In the associated press release, the Court stated “it is sufficient for a grant of premature possession that the supply of lignite to the energy market is at risk.”[20] The Court declared that Heukamp’s climate arguments were insufficient, holding that the political agreement between RWE and NRW which permits opencast lignite mining in the state until 2030 is compatible with the constitutional climate protection requirement stipulated by the Federal Constitutional Court in Neubauer.[21] The Court further held that the issues raised by Eckhardt relate to climate policy and therefore “have no basis in current law” and should be addressed to the legislature.[22] The Greens, in a spirit of resignation, argue that the legal processes are now “exhausted,” and this fact must be accepted in a constitutional state.[23]

Lützerath has become the arena for a national struggle over climate protection and energy security. To be sure, it is one based as much in politics as in constitutional law, as the formerly anti-coal Greens embrace pragmatism in the current coalition. Under the current geopolitical context, Germany, having been reliant on Russia for more than half its gas supply prior to the war,[24] is also seeking to gain energy sovereignty by spurring renewable energy innovation, albeit in conjunction with a temporary shift back to coal.[25]

Now, though, what was once a remote hamlet is physically no more. At the same time, as German climate activist Luisa Neubauer, lead plaintiff in Neubauer, declared, Lützi has become “an epicentre of the global struggle for climate justice.”[26] Its aftershocks will be felt elsewhere and in the near future as anthropogenic climate change forces the law to evolve with it.

Shirley is a 1L BCL/JD student at McGill University’s Faculty of Law. She is passionate about international humanitarian law and its theoretical foundations. In her spare time, she can be found around a spikeball net in Parc La Fontaine or café-hopping with a good book. A special thanks to Nicolas Kamran for his support in preparing this article.

[1] See Ingmar Björn Nolting, “The eviction of Lützerath: the village being destroyed for a coalmine”, The Guardian (24 January 2023), online: <theguardian.com/artanddesign/2023/jan/24/eviction-lutzerath-village-destroyed-coalmine-a-photo-essay>.

[2] See Josefine Fokuhl and Vanessa Dezem, “This Village Is Standing in the Way of Germany’s Coal Revival”, Bloomberg (15 January 2023), online: <bloomberg.com/news/features/2023-01-15/german-coal-mine-village-of-luetzerath-pits-energy-security-against-climate?leadSource=uverify%20wall>.

[3] See Catharina Rieve et al, “Kein Grad weiter - Anpassung der Tagebauplanung im Rheinischen Braunkohlerevier zur Einhaltung der 1,5-Grad-Grenze” (2021), online (pdf): Deutsches Institut für Wirtschaftsforschung <diw.de/documents/publikationen/73/diw_01.c.819609.de/diwkompakt_2021-169.pdf>.

[4] See Lukas Eberle and Benedikt Müller-Arnold, “Basiert Neubaurs Lützerath-Entscheidung auf fragwürdigen Gutachten?”, Der Spiegel (13 October 2022), online: <spiegel.de/panorama/gesellschaft/luetzerath-nrw-basiert-mona-neubaurs-entscheidung-auf-fragwuerdigen-gutachten-a-856d2398-e89d-4c54-ad1e-40bff8c31b27>.

[5] See Rieve et al, supra note 3.

[6] See Bundesregierung, News Release, “Schnellerer Ausstieg aus der Braunkohle in NRW” (24 December 2022), online: Press and Information Office of the Federal Government <bundesregierung.de/breg-de/aktuelles/kohleausstieg-2030-2139228>.

[7] Gero Rueter, “Big coal and the battle for Lützerath”, Deutsche Welle (9 January 2023), online: <dw.com/en/big-coal-and-the-battle-for-l%C3%BCtzerath/a-64330168>.

[8] See Cécile Boutelet, “Germany's Lützerath: The village standing in the way of the last open-cast coal mine”, Le Monde (11 January 2023), online: <lemonde.fr/en/germany/article/2023/01/11/germany-s-lutzerath-the-village-standing-in-the-way-of-the-last-open-cast-coal-mine_6011155_146.html>.

[9] Emily McGarvey, “Lützerath: German police oust climate activists after clashes near coal mine”, BBC News (15 January 2023), online: <bbc.com/news/world-europe-64285787>.

[10] See Fokuhl & Dezem, supra note 2.

[11] Michael Bauchmüller und Thomas Hummel, “Lützerath wird geräumt”, Süddeutsche Zeitung (11 January 2023), online: <sueddeutsche.de/politik/luetzerath-protest-polizei-1.5730409>.

[12] See Antoinette Radford, “Greta Thunberg detained at German coal protest”, BBC News (18 January 2023), online: <bbc.com/news/world-europe-64309628>.

[13] See Frank Jordans, “Last activists leave hamlet at heart of German coal protest”, CTV News (16 January 2023), online: <ctvnews.ca/climate-and-environment/last-activists-leave-hamlet-at-heart-of-german-coal-protest-1.6232169>.

[14] Verwaltungsgericht Aachen [Aachen administrative court], Aachen, 5 January 2023, 6 L 2/23 (Germany).

[15] See “Betretungsverbot für Lützerath gilt weiterhin”, ZDF (5 January 2023), online: <zdf.de/nachrichten/panorama/luetzerath-betretungverbot-aktivisten-gericht-100.html>.

[16] Ibid.

[17] See Bundesverfassungsgericht [Federal Constitutional Court], Karlsruhe, 24 March 2021, Neubauer et al v Germany, No BvR 2656/18/1, BvR 78/20/1, BvR 96/20/1, BvR 288/20 (Germany).

[18] Ibid at para 183.

[19] See Oberverwaltungsgericht NRW [Higher Administrative Court of North Rhine-Westphalia], Münster, 28 March 2022, 21 B 1675/21 (Germany).

[20] See Die Präsidentin des Oberverwaltungsgerichts für das Land Nordrhein-Westfalen, Münster, News Release, “No Temporary Clearance Stop for Lützerath” [official translation] (28 March 2022), online: <ovg.nrw.de/behoerde/presse/pressemitteilungen/01_archiv/2022/22_220328/index.php>.

[21] Ibid.

[22] Ibid.

[23] See Christoph Schmidt-Lunau, “Fechi und Lützi sollen bleiben”, Die Tageszeitung (8 January 2023), online: <taz.de/Proteste-gegen-Autobahnbau-in-Frankfurt/!5904817/>.

[24] See Philip Oltermann, “How reliant is Germany – and the rest of Europe – on Russian gas?”, The Guardian (21 July 2022), online: <theguardian.com/world/2022/jul/21/how-reliant-is-germany-and-europe-russian-gas-nord-stream>.

[25] See Federal Ministry for Economic Affairs and Climate Action, “Our energy transition for an energy supply that is secure, clean, and affordable”, online: <bmwk.de/Redaktion/EN/Dossier/energy-transition.html>.

[26] Luisa Neubauer, “THREAD: What is going on in #Lützerath? In Germany, a small village next to a giant coal mine has advanced to become an epicenter of the global struggle for climate justice. Today the eviction of the the village has started. But this is not "just" about a single village. 1/” [sic] (11 January 2023 at 12:06), online: Twitter < https://twitter.com/Luisamneubauer/status/1613220808750665728>.