This article is written by NEWGROUND partner André Gaastra who is ranked by Who is Who Legal Global Leader Environment 2020.
Environmental enforcement has already been taken seriously by the Netherlands government and enforcement agencies in past decades. Now the Netherlands itself is being criticised for beating around the bush when it comes to taking care of the environment. This emerges from two critical cases.
THE URGENDA CLIMATE CASE
In the climate case of the Urgenda Foundation v the State of the Netherlands, the Urgenda Foundation first convinced the regional court of The Hague to rule, in June 2015, that the state should do more to reduce the emissions of greenhouse gases in the Netherlands, in order to reach the international goal to limit global warming to a maximum of 2 degrees celsius. According to the court, it is scientifically proven and accepted that the policy of reduction to a maximum of 20 per cent in the EU for 2020 (approximately 17 per cent in the Netherlands) would not be sufficient to reach that goal. The court concluded that the state would act negligently, in violation of its duty of care, and unlawfully in the case of a national reduction below the level of 25 to 40 per cent in 2020. Some were of the opinion that the court should not take the place of the legislature, and that this might be a rogue decision of the regional court marching to the beat of its own drum, but the Court of Appeals upheld the ruling and further detailed this decision in its ruling of 9 October 2018. The Court of Appeals has even ruled that the state fails to fulfil its duty of care pursuant to articles 2 and 8 of the European Convention on Human Rights (ECHR) (ie, the right to life and the right to respect for one’s private and family life) by not aiming to reduce the emissions by at least 25 per cent by the end of 2020. In May 2019, parties had their cases pleaded at the Netherlands Supreme Court. This case has culminated in a fundamental debate on the separation of powers in the Netherlands. Another fundamental question is whether the Court of Appeals has rightfully based its judgment on articles 2 and 8 ECHR, given the debate on the question of whether the rights to (family) life are really at stake at this stage. The Supreme Court had not yet rendered its judgment before this article went to press. This case has had an effect on the policymaking already in place, and the government is moving ahead with new climate policies. It has put pressure on national political discussions, with respect to the closing of the five coal-fired power plants in the Netherlands, and policies to enhance wind-farming. Further emission reduction targets for industries cannot be excluded.
ENDING THE INTEGRATED APPROACH TO NITROGEN
With its verdict of 29 May 2019, the Administrative Court of the Council of State nullified a number of permits granted by the Netherlands’ competent authority for certain activities emitting nitrogen substances, given that those were granted in violation of the European Council Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna (the Habitat Directive). This Directive aims at the conservation of animal and plant species that are seriously threatened, by the designation of special areas of conservation (SOCs) and requiring an “appropriate assessment” for any plan or project likely to have a significant effect thereon. In the Netherlands, those permits could only be granted by the grace of the Integrated Approach to Nitrogen (2015–2021) (PAS). This programme was developed by the national government in order to cope with the existing high loads of nitrogen deposits in nitrogen-sensitive habitats. The Administrative Court of the Council of State has noted that out of 162 Natura 2000 sites in the Netherlands, 118 face an excessive nitrogen deposit, which poses a problem for the achievement of the conservation objectives of nitrogen-sensitive natural resources in Natura 2000 sites. There were two main aims underlying the programme: first, to define measures to conserve and, where necessary, restore the Natura 2000 sites it had listed in order to achieve a favourable conservation status at national level; and second, to enable the maintenance or development of economic activities that are sources of nitrogen deposits in those sites. The programme was also based on the notion that in the near future, nitrogen deposits would be reduced and that half of that reduction would offer “room for deposition” for new economic activities. According to the Administrative Court of the Council of State, however, the programme is not sound, as it does not comply with the requirements for an “appropriate assessment” as provided by the Court of Justice of the European Union in its preliminary ruling in this case. Pointing at the preliminary ruling, the Administrative Court of the Council of State ruled that the expected benefits of conservation measures appropriate protection measures, and autonomous development cannot be taken into account in the assessment of whether the negative consequences of the distribution of “room for deposition” can be avoided or limited. This apparently refers to the requirement as provided by the Court of Justice of the European Union that a thorough and in-depth examination of the scientific soundness of an “appropriate assessment” makes it possible to ensure that there is no reasonable scientific doubt as to the absence of adverse effects of each plan or project on the integrity of the site concerned, which is for the national court to ascertain. Apparently, future expectations based on plans are not enough.
Putting the PAS aside has meant that a large number of Netherlands projects have been stranded, and that new assessments have been necessary in view of the projects being permitted. It is already having an immensely detrimental effect on housing and infrastructure projects and road construction. According to information from the ABN AMRO Bank, the Netherlands building and construction industry might be faced with a haircut of €14 billion in the coming years. In essence, the verdict means that future assessments should make clear that the absence of adverse effects for the integrity of the sensitive area (the SOC) concerned is assured in advance. However, solutions may be under way. The Minister of Agriculture, Nature and Food Quality has installed a state advisory committee on nitrogen matters, with the view of enhancing future permitting procedures.
NETHERLANDS GENERAL ACTIVITIES DECREE NOT SUBJECT TO AN EIA
Environmental groups have also endeavoured to have permits for large wind-farming projects nullified by the courts on the basis of the verdict of the Court of Justice of the European Union in the D’Oultremont case, dated 27 October 2016 – as such, without success. Their opinion is that it arises from this judgment that decisions with respect to the location of a windfarm fall within the scope of the Aarhus Convention and that, therefore, those decisions should be subject to public inspection. Additionally, the zoning plan for the windfarm location was established on the basis of, among others, the consideration of the municipal council related to environmental conditions are provided for in the Netherlands Activities Decree. The environmental groups appealing the judgment stated that, from the D’Oultremont judgment, it arises that:
- the Activities Decree is a plan or a project in the sense of Article 2 of European Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (the SEA Directive);
- no assessment had been done prior to establishing the Activities Decree;
- this Decree should be set aside due to its being in conflict with higher legislation; and
- this decree, therefore, cannot serve as a basis for the environmental acceptability of the windfarm location.
The Administrative Court of the Council of State, however, ruled in these cases that there is no ground to state that the Netherlands administrative legislation providing the possibility of filing an opinion on the draft permit, before the final decision to grant the permit is taken, would be in violation of the Aarhus Convention. After all, no (final) decision on the permit application had been taken in the period in which such opinion could be forwarded by any person.
With respect to the D’Oultremont doctrine, the Administrative Court of the Council of State has acknowledged that:
- general rules could also qualify as a plan or programme in the sense of article 2 of the SEA Directive;
- according to the Court of Justice of the European Union, this obligation is subject to a broad explanation;
- there is no national obligation for an environmental impact assessment (EIA) in view of the establishment of such general rules;
- and no assessment had in fact been conducted prior to establishment of the subject Activities Decree.
However, it also referred to the opinion of Advocate General Kokott in the case Inter-Environnement Bruxelles ASLB. She pointed out that the D’Oultremont judgment should be read against the background of a hierarchy of rules in which the SEA Directive intends to ensure that decisions with an expected significant impact on the environment can only be taken after those effects have been assessed. Kokott stressed the fact that the term “plans and programmes” relates to any act that sets out a large array of criteria and modalities for the approval and execution of one or more projects. From this, the Administrative Court of the Council of State derives that a “plan or programme” should have a relationship with one or more specific projects; and that, from the preliminary notes to the SEA Directive, it arises that in relation to the explanation of the term “plans or programmes” a certain level of specification is deemed important. As such, it remains limited to the planning and programming phase of decision-making, and is not applicable to the highest level of the decision-making pyramid, where policies are set in their most general form.
In summary, the Activities Decree was not established with certain specific projects in mind. This would mean that the Activities Decree is not a plan or a programme in the sense of article 2 of the SEA Directive, and that it could be established without a prior environmental impact assessment. One cannot exclude that the D’Oultremont doctrine could be brought against future permitting decisions, which are based wholly or in part on general environmental rules; nevertheless, on the basis of the verdict of the Administrative Council of State, that seems fine, as long as those general rules are not provided for in view of a certain project or specific projects.
PFAS CONTAMINATION
There is an important development related to soil and groundwater pollution that should be noted. Per- and polyfluoroalkyl acid substances (PFAS) – a group of man-made chemicals that includes *perfluorooctane sulfate (PFOS, in accordance with terminology taken from the US Food & Drug Adminstration website)*, GenX and many other associated chemicals – have given rise to national measures in order to prevent further stagnation of ground and waterworks.
The manufacture of PFAS began in the 1940s, and they were used in a variety of industries around the globe, including in consumer products such as, cookware, food packaging and stain repellents. PFOS, meanwhile, were widely used in aqueous film-forming foam (AFFF) used for fire suppression. Those substances are no longer manufactured and their use has been phased out on the basis of European legislation.
The Netherlands is not unique in this. Publicly available information shows that the presence of PFAS in the environment is a global problem. The stagnation of works after the identification of PFAS as a soil contaminant in the Netherlands has led to significant costs to society, as various PFAS substances qualify as a persistent, bioaccumulative and toxic class compound, and as there was no legal limit for reuse of excavated soil polluted with PFAS – meaning that the presence of those substances in excavated soil hindered reuse as soon as it was detected. PFAS in excavated soil became an issue in the Netherlands after a number of incidents in the past decade involving the release of PFAS-containing fire foams and emissions into the ambient air. Initially, the parties dealing with these cases of pollution thought they were in a relatively unique position. However, it turned out that the presence of PFAS in the environment was more general than expected. Apparently, the presence of PFAS at other contaminated sites was not regularly revealed, given that those components were not in the standard analysis package.
After some initiatives of the local governments, the minister of infrastructure and water works issued a policy in July 2019, which should enhance the reuse of PFAS-containing soil and dredging sludge. His intention is to transpose this into legislation soon. It is aimed at striking a good balance between the interests of ending the stagnation of the works, and at the same time preventing unacceptable risks to human health and the environment. The presence of PFAS, and the levels thereof in the Netherlands, are still under investigation. The policy is therefore holding back on a potential wider reuse of PFAS containing soil and dredging sludge in view of the precautionary principle. This means, among other things, that the spreading of soil and dredging sludge containing PFAS to less contaminated areas should be prevented. The minister has also stated that PFAS should be added to the standard analyses package on the basis of the duty of care (presumably the duty of care in the sense of the Soil Protection Act) until such time as it has become clear whether there are any non-contaminated areas in the Netherlands. The question is whether this policy would help the interested parties to a relevant extent, given that the application levels provided in the new policy for PFAS are extremely low (in the order of micrograms per kilogram).
In light of the above, one could rightfully state that at this moment, development of Netherlands environmental law is progressing more rapidly than ever before.