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International

Turbines, Bats, and Rubber Stamps

7.17.15


Photograph by iStock

International court hearings don’t typically fall within the purview of American legal education. Yet in my three years at Harvard Law School, I managed to line up legal internships in Thailand, Myanmar, Hong Kong, and India—so when a friend from a German nonprofit invited me to observe a provincial court hearing just one week before graduation in May, it seemed an apt conclusion to my studies. Little did I know I would witness international primetime legal theater: administrative missteps, endangered bat species, and a hidden soap opera filled with aristocratic drama.

Within the austere façade of a Bauhaus-inspired cement block, attendants hailing from across Europe, the Americas, and Africa packed the small courtroom to the point of overflow seating. Media were just as well represented, from Chile to Croatia. The plaintiffs were organic apple farmers operating as part of Europe’s largest biotope connective system, constructed by the International Gabriele Foundation: systems of hedges provide animals habitat, while farmers cultivate land through “peaceable farming.” The defendants? A wealthy energy company and a district administrative office, too quick with its rubber stamp.

Wind power is huge in Bavaria. Emphasizing sustainability, strong wind lobbies and large subsidies have apparently misaligned local governmental incentives, leaving provincial farmers at the mercy of powerful interests. Germany imposes a rigorous approval process for turbine construction, but somehow a 600-foot turbine was approved for a site directly bordering these farmers’ orchards—their first notice was the bulldozers’ arrival. To the chagrin of the defendants, the farmers have been rallying international support and fighting them in court ever since.

Dismantling the turbine rested on proving procedural failure, but also on winning a cost-benefit analysis incorporating environmental impacts and occupational hazards. The court reprimanded officials for basing approval on an outdated environmental study conducted on a completely distinct parcel, and for failing to consider protected species currently using the biotope as habitat. Since the blades began to spin, corpses of critically endangered birds and bats have lined the farmers’ property; blades not only strike the animals mid-flight, but the turbine also lowers air pressure, causing birds’ air sacs to explode, dooming them to horrific death. In addition, at such altitude, ice forms more than 200 days annually, posing risks to the farmers of “ice throw”—human-death-by-icy-projectile.

Breaking all American stereotypes of a cold, procedure-driven Germany, the hearing was contentious—heated arguments erupted between sides, prompting the judges to remind parties that the judges were still present. Because Germany lacks juries, lawyers are accustomed to duking it out freestyle, with no risk of prejudicing jurors. (Fun!) The court audience, too, was active—ooh’ing and ahh’ing at appropriate junctures. When the district office representative responded to a key question with “I can’t say,” the audience laughed.

Intriguingly, the farmers suspect the site was approved without their involvement because of religious discrimination. The farmers form part of a growing Christian minority (“Original Christians”) who refute church hierarchy and believe in reincarnation and vegetarianism. Politics and religion are more directly intertwined in Germany than in the United States (for example, most church revenue comes from a government-collected “church tax” on church members), and the farmers claim the dominant Catholic and Lutheran churches have used political power to harass them for decades. One local Lutheran minister had even publicly called for an “Inquisition” against them. Relevance? The landowner renting to the energy company is a Catholic baron, the collateral descendant of a local bishop, and also happens to be acquainted with a board member of the energy company who is, in turn, the daughter of the former Minister-President of Bavaria. [This is the point where Americans might ask, “What’s a baron?”] Though discrimination went unspoken at the hearing, one sensed a hidden tension.

I have always appreciated wind energy—for the sustainability potential, but also for the feat of engineering. Nonetheless, it’s easy to appreciate wind turbines while road-tripping through the California desert, and more difficult when a turbine threatens your employees’ lives and kills endangered species on your land. In the end, the court was clear: the turbine was illegal. Now, the farmers must defend their win on appeal in Munich and potentially higher courts in Germany and the European Union.

I harbor no aspirations to become an expert on German energy law, and maybe I’m just a naïve law-school grad (bar-exam results pending), but the farmers won me over. It strikes me that courts everywhere should, as the Bavarian court did, resist temptation to retroactively sanction executive abuse under mere “cost-benefit” reasoning; rectifying wrongs is always more costly than preventing them in the first place. Germany here has the opportunity to set an example all nations would be wise to follow. Although the concept may be extra exciting for incipient lawyers, “rule of law” is too often underappreciated. For one day at least, justice overcame corporate and “Big Admin” interests, and everyone seems better for it—bats and birds inclusive.

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Krishna G. Palepu, senior adviser to the president for global strategy

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Photograph ©Stuart Cahill for Harvard Business School

Harvard Global Institute