Decision output and critical reflection

Finally, the recommendation text reports three important concluding remarks:

• The RT recommendations aim at creating the necessary preconditions for an ecological betterment of the Werra-Weser watershed; they are however not sufficient for that betterment to be achieved, so that further measures have to be addressed within the compulsory management plan of the River Basin District;

• The RT recommendations are meant to achieve socio-economic goals at societal level; they are not meant to achieve K+S’s managerial objectives as these do not belong to the sphere of judgement of the RT;

• The implementation of the recommendations lies mainly in the hands on K+S;

authorisation processes will be necessary and political support will be needed;

the implementation is also likely to be followed by lawsuits.

With the above, the RT endorses the Measures Package by K+S and further recommends the construction of a pipeline to the North Sea. It also accepts the continuation of the injection practice and the disposal on salt heaps as temporary measures during the construction time of the pipeline. Finally, it recommends to further explore alternative disposal channels and additional optimisation options so as to move away from injection and salt heaps as soon as possible.

This decision output has obtained a large majority (22 of 25 votes in favour). After two years of discussions, 22 Members of the RT agreed on the fact that the disposal of salt-rich wastewaters in the Werra watershed has to end, and that includes both surface and underground waters. They also agreed that K+S has to do everything in its powers to avoid producing those wastewaters by improving its production

processes, and that the best thing to do with the remaining, unavoidable,

wastewaters is to bring them per pipeline to the North Sea. Finally, they acknowledge

the urgency of dismissing the current injection practice but allow it to proceed as long as the pipeline is under construction, provided it is indeed underway.

The size of this majority is certainly impressive and would suggest that the overall arrangement will indeed move in the direction sketched by the recommendations. A careful reading of the minority votes provides however a different perspective as they set a specific mechanism into motion. First, regardless of the assessments made and of the discussions held at the RT, Niedersachsen rejects the construction of the pipeline. Niedersachsen has held this position from the very beginning of the

process: the first statement in this regards dates back to Meeting 02 (April 15, 2008).

There will be no pipeline without the approval of Niedersachsen. This means that, at the state of things, there will be no pipeline.

Second, there is a broad front that would accept the continuation of the disposal of wastewaters in the Werra in case the recommended measures (e.g. pipeline) fail for reasons not amenable to K+S. The pipeline solution formally fails because of

Niedersachsen, not because of K+S. The front at stake includes the upstream municipalities and, most of all, the Hessen State Administration. Taken by the word, Hessen is likely to further authorise the disposal of salt-rich wastewater into the Werra, meaning that neither a good ecological status will be achieved, nor a pathway towards it will be laid down in the foreseeable future. If this is the case and we take the regulations by the letter, we can either expect the intervention of the EU or a complaint filed by any environmental NGO at the European Court of Justice against the Member State Germany for failing to implement the EuWFD.

The RT process may represent a political success, due to the broad majority supporting its recommendations. Under this latter perspective, however, it has substantially failed: if the above holds true, the process around the RT has not proven successful in identifying a viable alternative arrangement, capable of being implemented or even likely to be implemented. Furthermore, K+S rejects the recommendations as well. Three core reasons are brought forward in a written statement: the missing consensus among the state administrations, the missing assessment of the feasibility of the recommended measures from the point of view of the company and the disproportion between the costs of the pipeline solution and its

effectiveness. K+S holds instead to the position that the NIS is a feasible option for the long term and that the abatement thus provided is sufficient.

Regardless of the truthfulness of these points, which mechanism do they set into motion? K+S does not intend to bear the costs of constructing the pipeline and intends, instead to invest into a process (the NIS) which, without a pipeline is not going to be authorised. K+S can therefore expect to lose the possibility to inject wastewaters into the underground and will at best be only able to rely on the Werra as a sole channel for disposal. The EuWFD forbids a worsening of the river’s ecological status, so that the current salinity thresholds effectively become a cap to the level of production. Considering that, as of today, the injection practice is the disposal of choice for 7 of the 14 million tons of waste produced each year, a significant decrease in the level of industrial activity can be expected.

The presence of fixed costs makes it furthermore unlikely that the profitability of the facilities reacts linearly to the decrease in production. Simply put, a halved production leads to halved revenues on the one hand, to higher-than-halved costs on the other.

This reduces profitability²⁸. If the company reacts to profitability (and that is likely, given the above), some facilities may close and some layoffs may follow.

Additionally, the company may face additional legal expenses and possibly liabilities, further worsening its situation. How can the company consider this as the best thing to do under the circumstances?

Certainly, the scenario above relies on a strong interpretation of the letter of the process’s output. A similarly strong interpretation may or may not prove right. Weaker interpretations, softening the meaning of the statements presented above, may

indeed open spaces for different outcomes not involving layoffs, foreclosures, fines and a continued environmental pressure on the watershed. No matter how weak or strong the different statements are to be read, we will avoid at this point to merely speculate on likely outcomes and turn to the interview and written materials we have collected all along the RT process.

28 Profitability is a ratio between revenues and costs. If revenues are greater than costs, such ratio is greater than one.