The Environment and Climate Change Law Review: Netherlands

Introduction

This is an overview of Dutch environmental law, including climate change legislation, highlights, trends and recent developments. The focus is on environmental laws applicable to operating industrial sites (facilities), but Dutch environmental legislation covers a broader range of activities and products. This chapter is therefore an introduction only, and is limited to the European part of the Kingdom of the Netherlands (historically, certain island territories in the Caribbean form part of the Netherlands).

The Netherlands has a well-established system of environmental laws that is often perceived as detailed and complex. Furthermore, the Netherlands has a well-established system of inspections and enforcement, as is discussed in greater detail below.

The Dutch government has a tradition of being a frontrunner in respect of environmental protection within the European Union. In implementing EU laws, the Dutch legislator often used to go beyond the level of protection agreed on a communal level. Recently, however, the Dutch legislator seems keener on directly transposing EU requirements without introducing additional national requirements.

The scope and complexity of current environmental laws have triggered what is the largest system reform of Dutch environmental laws to date. This legislative project is ongoing, and aims for a full integration of virtually all environmental acts, including legislation on zoning and planning, and on nature protection, into a single Environment and Planning Act (Omgevingswet). Although the Environment and Planning Act has been adopted by the Dutch parliament, the entire system reform is still to be completed. In fact, the Dutch government recently announced that the anticipated date of entry into force of the Environment and Planning Act has been postponed to 1 July 2022, and further delays cannot be excluded. This chapter therefore discusses the Dutch environmental laws as applicable at the time of writing. The impact of the new Environmental and Planning Act is discussed separately at the end of this chapter.

Legislative framework

The primary source of environmental law is the Dutch Environmental Management Act (EMA). The EMA contains an extensive set of rules with regard to various environmental topics, such as waste management, environmental impact assessment, greenhouse gas emission allowance trading, noise ceilings and air quality standards. The EMA also serves as the legal framework for setting more detailed rules by order in council and ministerial decree, and numerous such orders and decrees have been adopted under the EMA over time.

Under the EMA, general environmental rules for facilities have been set in the Dutch Decree containing general rules for the regulation of facilities in the interest of protecting the environment (the Activities Decree). All facilities in the Netherlands (e.g., factories and offices buildings) are subject to the Activities Decree, which covers basically any environmental topic (e.g., noise, air emissions and soil). The Activities Decree prescribes, inter alia, that a zero base soil survey is conducted before starting certain operations (and requires that the soil is brought back to these conditions if the facility is shut down). Further general rules include air emission limit values and maximum noise and odour limits, as well as mandatory energy saving measures.

In addition to the general rules that apply under the Activities Decree, designated facilities (referred to in the Netherlands as 'Type C'-facilities) require an environmental operating permit. These include facilities under the scope of the EU Integrated Pollution Prevention and Control (IPPC) regime (EU Directive 2010/75/EU on industrial emissions (integrated pollution prevention and control (IPPC facilities)) and other facilities that are deemed to have a significant impact on the environment and have been designated as such. Permit conditions attached to environmental operating permits must be based upon the best available techniques, as detailed in reference documents. These include reference documents available on an EU level, commonly referred to as 'best available technique reference documents'.

The issuance of permits, including procedural rules, legal redress and enforcement action, is governed by the Act containing general provisions on environmental permitting (WABO). Supplemental – mostly procedural – requirements apply under the General Administrative Law Act. The WABO forms the legal basis for also permitting various other activities (than operating a facility), such as building activities, deviating from a municipal zoning plan and activities that involve designated monuments.

Various other environmental laws apply in the Netherlands, such as the Nature Protection Act that provides the legal regime for protecting flora and fauna, Natura 2000 areas and the Dutch forests. Other acts include the Soil Protection Act (SPA) and the Water Act. The latter act provides for a dedicated permitting regime for, inter alia, activities that may adversely impact the surface water quality (e.g., discharges of wastewater) or groundwater (e.g., groundwater extraction), and activities within water works (e.g., the construction and operation of an offshore wind farm). The Dutch Building Decree 2012, the Asbestos Removal Decree and the Labour Conditions Decree contain rules on the management, maximum exposure to, and (sometimes mandatory) removal of asbestos.

The regulators

Who the regulator is in respect of environmental matters depends on the matter involved. In respect of facilities, in principle, the municipality in which a facility is located is the authority empowered to issue permits or take enforcement action. In some cases, this power resides with the province instead. This, more specifically, concerns facilities that are, inter alia, in scope of the Dutch Risks of Major Accidents Decree 2015 and designated IPPC facilities. Under very specific circumstances, the Minister for Infrastructure and Water Management is the competent authority.

In other matters, who the regulator is may vary. For instance, in matters concerning nature protection, powers in principle reside with the province, while, for instance, in product stewardship matters, powers often reside at a national level.

Day-to-day handling of environmental matters on a municipal and provincial level takes place by regional environmental bodies, acting on behalf of the authority. These government bodies consist of environmental experts who issue permits, carry out inspections and take enforcement action on behalf of multiple municipal and provincial authorities.

At the national level, inspections and enforcement are carried out by the Human Environment and Transport Inspectorate (ILT), acting on behalf of the Minister or State Secretary for Infrastructure and Water Management. Other national inspectorate bodies and departments may be involved as well.

Enforcement

Under Dutch environmental law, scope for enforcement exists under both administrative and criminal law. In addition, anyone incurring damages as a result of the infringement may seek an injunction or compensation of damages under civil law.

i Administrative law enforcement

Enforcement under administrative law is primarily aimed at undoing the violation and preventing new violations from occurring, while criminal proceedings are aimed at imposing a punitive sanction. The most common administrative law sanctions are an order under administrative coercion and an order under penalty payment. In the case of an order under administrative coercion, the government will remedy the violation at the expense of the violator, often after expiry of a mandatory grace period. In the case of an order under penalty payment, a penalty is forfeited for the duration that the violation continues to exist after the grace period. No maximum amount applies in respect of the order under penalty payment, but the penalty must be proportionate, yet effective.

Further administrative sanctions include withdrawal of the environmental operating permit, which is usually seen as a last resort measure, while in designated cases an administrative fine may be imposed. A recent trend under environmental law is the broader introduction of such administrative fines.

The authorities may take enforcement action ex officio or upon request. Violations must, in principle, be enforced. Exceptions include if legalisation is imminent (e.g., the authority is about to issue a permit that takes away the violation), or if enforcement action is deemed disproportionate, which is rarely the case. In addition, immediate enforcement action may not be taken where the authority's own reasonable policy dictates otherwise, for instance stipulating that a warning letter is sent first.

If a violation is tolerated, this should in principle take the form of a decision to tolerate, imposing a deadline and conditions that mitigate the impact of the violation. The Council of State recently ruled that such formal decision does not qualify as a decision that can be appealed with an administrative judge.2 In practice, however, occasionally no enforcement action will be taken without a formal decision to tolerate.

ii Criminal law enforcement

The Public Prosecutor's Office is charged with enforcement pursuant to criminal law. Both legal entities and natural persons may be prosecuted for criminal offences. A legal entity can be held criminally liable for any criminal act that can be attributed to it. Whether an offence can be attributed to a legal entity will depend on the specific circumstances, including on whether the offence is within the normal activities of the legal entity and whether the legal entity exercised control over the offence. Officers of the company can also be held criminally liable when they have given factual directions regarding the event.3

Most violations of specific environmental laws and regulations have been designated as criminal offences. The Dutch Penal Code also provides for a number of general environmental offences, including a prohibition on bringing a hazardous substance in the soil, air or surface water, and a duty for operators of industrial plants to take reasonable measures to prevent or limit danger to health or the environment when producing or making available substances, preparations or GMOs.

iii Civil law enforcement

Civil law is rarely applied to achieve enforcement objectives. Anyone incurring damages as a result of a violation of a statutory duty, a property right, or an unwritten duty of proper social conduct that can also be regarded as a fault, can seek an injunction or compensation of damages under civil law from the perpetrator.

Reporting and disclosure

Typically, permit conditions will require the permit holder to report the facility's emissions to the competent authorities on a frequent basis (e.g., monthly and quarterly). Similar reporting requirements apply under the Activities Decree in respect of the general rules set. Furthermore, companies participating in the EU Emissions Trading System (ETS) must report on their emissions annually, in the form of a verified emissions report.

Under the EMA, unforeseen incidents that occur within a facility and that have, or threaten to have, a negative impact on the environment must immediately be reported to the authorities. An unforeseen incident is any event that deviates from normal business operations and includes calamities and accidents, as well as failures in the production process.

For IPPC facilities, the EMA imposes a similar reporting requirement in the case of any non-compliance with permit conditions and general rules, other than that which is caused by an unforeseen incident.

In addition, under the SPA, anyone conducting or involved in activities that cause soil contamination must immediately report the contamination to the authorities.

There is no specific rule on disclosure of environmental information in transactions. Under the Dutch Civil Code, however, the seller must disclose information, including information that the seller should know may be relevant for the buyer, while the buyer is under obligation to make its own due investigations. Although this depends on the merits of the case (including on the professionalism of the parties involved and what information is available in the public domain already), typically the seller's disclosure requirement will prevail over the buyer's duty to investigate. The seller is thus likely to be liable for failure to disclose information that was not self-evident. In transactions, it is common for the buyer to require warranties and indemnities for environmental matters from the seller.

Environmental protection

i Air quality

Air quality standards are primarily laid down in and based on the EMA. These standards and requirements should be taken into account when determining whether an environmental permit for a facility may be granted. If an application for such permit has been submitted, the application should also include an assessment on whether the activities conducted within a facility do not lead to the exceeding of the applicable quality standards. Air emission standards on NOx and SOx, among others, and related requirements have been set in the Dutch Activities Decree.

The air quality standards referred to above also aim to implement the air quality standards set at the European level in Directive 2008/50/EC on ambient air quality and cleaner air for Europe.

ii Water quality

The water quality regime in the Netherlands is primarily laid down in the Water Act. This act requires the Minister, in consultation with the Minister of Economic Affairs and Climate Policy, to adopt a National Water Plan, as well as the provincial council of each province in the Netherlands to adopt regional water plans. The current National Water Plan refers to the EU Water Framework Directive 2000/60/EC (WFD) and aims to further improve the water quality in line with the WFD. Further to the obligation to adopt a National Water Plan and regional water plans, the Water Act prohibits the discharge of waste water or contaminating or hazardous substances in surface waters, except when the discharge of these substances is allowed for under a water permit or the general rules laid down in the Water Decree.

iii Chemicals

Similar standards for the manufacturing, supply and safe use of chemicals apply across the entire European Economic Area. In the Netherlands, as in any EU Member State, Regulation (EC) No. 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) directly applies in the EU Member States. The aims of REACH include the protection of human health and the environment from the risks that can be posed by chemicals.

REACH establishes procedures for collecting and assessing information on the properties and hazards of substances. Companies need to register their substances and to do this they need to work together with other companies who register the same substance. The European Chemicals Agency, the central regulatory authority that implements REACH, receives and evaluates individual registrations for their compliance.

REACH impacts on a wide range of companies across many sectors, including manufacturers and importers into the European Union. To a lesser extent, downstream users also have responsibilities under REACH. The specific obligations that companies have depend on the type of products involved (i.e., substances on their own, including metals, mixtures or articles).

In the Netherlands, Bureau REACH performs most tasks pursuant to REACH, including the management of the REACH help desk.4

Dutch companies must observe the national guideline document Publication Series on Dangerous Substances (PGS), setting detailed guidelines on the handling and storage of hazardous substances. These guidelines apply to nearly all industrial facilities, through a reference in the Activities Decree, or in the environmental operating permit.

iv Solid and hazardous waste

Waste storage, transportation and disposal are controlled by a variety of legislation at a national and regional level.

The EMA is the main act setting out the obligations in respect of waste management and transportation. It defines the roles of parties involved in the waste processing chain such as the 'disposer', 'transporter' and 'collector' of waste, each having specific rights and obligations. For example, business waste may only be transferred to a permitted waste collector or certified transporter. In addition, the EMA has set a national landfill ban (i.e., landfilling may only occur at designated areas).

Similar to REACH, the EU Waste Transportation Regulation (EC) 1013/2006 applies in the Netherlands (and other EU Member States), setting out the legal requirements for transportation of waste from and to the Netherlands (e.g., transport of dangerous waste needs to be notified).

Circular economy and Shell waste case

The concept of a circular economy – where the value of products, materials and resources is maintained in the economy for as long as possible, and the generation of waste minimised – has been embraced by the Dutch government. The Netherlands positions itself within the European Union as a circular hotspot, and various 'green deals' on circular initiatives have been agreed upon by (semi-) public institutions and commercial parties. Next to these market initiatives, in the summer of 2016, a national policy programme named 'the Netherlands circular in 2050' was presented to the Dutch parliament. Much of the policy initiatives concern waste management and the recovery of raw materials from waste, although the Dutch government is bound to the EU law concept of 'waste'.

In respect of the latter, the judgment of the ECJ of 12 December 2013 in the Shell waste case (Cases C-241/12 and C-242/12) is worth mentioning here.5 This case concerned ultra-light sulphur diesel (ULSD) that was accidentally mixed with methyl tert-butyl ether (MTBE). The ECJ ruled that the mixture of ULSD and MTBE did not qualify as waste. According to the ECJ, particular attention must be paid to whether the substance in question is of any use to its holder. If not, the substance constitutes a burden that he or she will seek to discard in a way that is likely to cause harm to the environment. In the present case, however, the mixture of ULSD and MTBE did not constitute a burden. On the contrary, the holder had sent back the mixture with the intention of getting a refund under the sales contract, while the recipient had taken back the mixture with the intention of blending it and placing it back on the market.

The judgment of the ECJ in the Shell waste case has not gone unnoticed by the Dutch Council of State, the highest administrative judge in the Netherlands. The key factor for the Council of State in determining whether an object or substance can be considered as waste now appears to be whether the object or substance in question constitutes a burden for the holder that he or she will seek to discard in a way that is likely to harm the environment.6

Asbestos

The use of asbestos-containing materials has been prohibited in the Netherlands since July 1993. Notwithstanding this prohibition, there is no general legal requirement to remove asbestos already present in buildings, provided this presence does not impose health risks. Concentration limit values have been set to this end, and are used to determine whether remediation is required (usually in the case of friable asbestos, or demolition and renovation activities).

It was initially anticipated that, as of 2025, asbestos-containing materials in rooftops would be prohibited. Owing to age, the surface of roofing materials containing asbestos is becoming brittle, slowly releasing asbestos fibres to the environment and therefore creating a health risk. However, on 4 July 2019, the Dutch Senate rejected the proposed ban on asbestos-containing materials in rooftops.

v Contaminated land

The most important requirements regarding prevention and remediation of contaminated soil and groundwater have been laid down in the SPA. The SPA distinguishes between 'historical' soil and groundwater contamination (caused before 1 January 1987) and 'new' soil and groundwater contamination (caused from 1 January 1987 onwards). All new contamination must be prevented as far as possible, and in the event that new contamination occurs nonetheless, all new contamination must, in principle, be cleaned up. For historical contamination, remediation requirements only apply if the authorities deem the contamination to be 'severe' and a clean-up urgently required. Whether contamination must be deemed severe contamination is determined by a number of factors, including whether certain limit values (intervention values) are exceeded. The urgency of a clean-up depends on a risk assessment.

Anyone who intends to remediate or move contamination must notify the authorities. Remediation may, in principle, only be carried out in accordance with a remediation plan that has been approved by the authorities. Upon completion of the clean-up, a final report must be issued to the authorities for approval. The authorities will determine whether the clean-up meets the conditions stated in the remediation plan. If the contamination has not been entirely removed, restrictions regarding the use of the soil and 'aftercare' requirements (e.g., monitoring of potential migration) may also be imposed. The authorities may also require remediation prior to redevelopment as a condition of planning permission.

In theory, under the SPA, the polluter is primarily responsible for remediating the contamination. However, in addition, the landowner or leaseholder can be held responsible by the authorities (or be under a statutory remediation duty), regardless of whether he or she contributed to the contamination. The authorities have discretion in deciding whether to assign responsibility for remediation to either the polluter or the landowner and, in practice, the polluter plays a very limited role in the discussions.

The SPA does not deal with apportioning liability and recourse between the various civil parties that may be held responsible; that should be determined under rules of civil law. A party who is held responsible by the authorities for a remediation under the SPA, or otherwise incurs costs in relation to contamination he or she did not cause, may try to take recourse against the polluter based on tort, or against the party from whom he or she acquired the site. In addition, an owner of a site from which contamination migrates to an adjacent site may be held liable by the owner of the adjacent site, regardless of whether the owner of the site caused the contamination.

In addition to soil contamination remediation obligations, a company may be faced with requirements regarding the quality of the soil or dredging spoil that is being excavated and repurposed at another location (e.g., following construction works). The Dutch Soil Quality Decree sets out national generic standards regarding soil quality for specific functions that can be adjusted by municipalities and water quality managers to allow for local customisation. These local standards can be more stringent or flexible. One of the relatively new chemicals acknowledged to cause soil contamination are per- and polyfluoralkyl substances (PFAS).

vi Nature protection

On 1 January 2017, the new Nature Protection Act entered into force. This act provides for the legal framework for, inter alia, the protection of protected flora and fauna and of habitats in designated Natura 2000 areas. Under the Nature Protection Act, the killing, disturbing and wounding of protected species is prohibited, unless an exemption has been obtained (or a general exemption applies). In addition, a permit is required for activities that may adversely affect a Natura 2000 area.

With respect to nitrogen depositions, reference must be made to the former Integrated Approach to Nitrogen (PAS) that was introduced in the Netherlands in July 2015. The introduction of the PAS was triggered by the strict permitting regime under the previous Nature Protection Act 1998, requiring a permit for essentially every project causing nitrogen depositions onto designated Natura 2000 areas, regardless its size. In principle, such permit can only be issued based on an appropriate assessment for a specific project. Such assessment should confirm that the project would not adversely affect the integrity of the Natura 2000 areas involved. If such effect could not be excluded, a permit could only be issued to the extent that no alternatives are available, that there is an imperative reason of overriding public interest in issuing the permit and that the negative impact is compensated.

By introducing the PAS, the government aimed to facilitate new projects being developed, as their nitrogen depositions would be compensated by measures taken at a national level to reduce the nitrogen deposition onto Natura 2000 areas. To that end, the PAS provided for the allocation of 'nitrogen development space' to projects that negatively impact a Natura 2000 area by means of nitrogen depositions. The available nitrogen development space was, however, limited. A key assumption under the PAS was that nitrogen development space was to be created by restoration measures for Natura 2000 areas and source-directed measures aimed at lowering NOx emissions, resulting in a general (autonomous) reduction of the nitrogen depositions onto such areas.

The PAS was immediately contested in court. In 2017, the Council of State submitted various questions for a preliminary ruling to the ECJ, asking the ECJ whether the PAS violates the European Birds and Habitats Directives (EU Directives 92/43/EEC and 2009/147/EC).7 The ECJ answered these questions in its judgment of 7 November 2018.

On 29 May 2019, the Council of State, taking the ECJ judgment into account, declared the PAS to be in violation of EU laws and therefore non-binding.8

Following the PAS judgments, a large number of nature permits, based on the PAS, have been annulled. Now that the PAS can no longer be relied upon, the strict permitting regime prior to the PAS once again applies. Although the Council of State emphasised in its judgments that its rulings of 29 May 2019 did not affect the legality of nature protection permits that have already become legally irrevocable, Dutch scholars have argued that it might nonetheless be possible to withdraw irrevocable nature protection permits issued under the PAS. The main argument for this is that, now that the PAS has been declared in violation of EU laws, permits issued under the PAS must also be deemed to be in violation of EU laws. Following on from this, it is argued that EU laws require these permits to be withdrawn. Case law confirms that the withdrawal of nature protection permits may indeed be possible, and may even be required, if withdrawal is the only available option to prevent any further deterioration of a Natura 2000 area.9

The PAS judgments of the Council of State have attracted fierce attention from the Dutch government, Parliament and society. Various acts have been adopted to limit the impact of the PAS judgments and facilitate the issuing of nature protection permits for projects causing nitrogen depositions. One of these acts introduced measures aimed at reducing the nitrogen depositions onto Natura 2000 areas, such as mandatory changes to the composition of animal food. Another act introduced a mechanism for legalising projects causing nitrogen depositions that were exempted from the permit requirement under the PAS, as well as an exemption from the permit requirement for nitrogen depositions caused during the construction phase. As per 1 July 2021, nitrogen depositions caused by building activities, such as traffic movements and the use of fuel combusting equipment, no longer require a nature protection permit for causing nitrogen depositions. However, this exemption will likely be contested in court, and the exemption (like the former PAS) may be declared unlawful.

Climate change

In the Netherlands, several laws and other initiatives are in place aimed at reducing greenhouse gas emissions and improving energy efficiency. The most important are described below.

i Energy efficiency

The EU Energy Efficiency Directive 2012/27/EU has been implemented in the Activities Decree. Among others, companies are required to conduct energy audits every four years to identify energy-saving measures that could decrease energy consumption within their businesses. In addition, companies are required to implement all energy-saving measures with a return on investment period of five years or less. In addition, as of 2023, every office building that exceeds a floor area of 100 square metres must comply with the requirements of an energy performance certificate label C or higher (labels run from G up to A). If the building does not meet these minimum energy performance requirements, it may no longer be used for office purposes as of 2023.

ii Climate Act

On 1 September 2019, the Dutch Climate Act entered into force. This act provides a framework for the development of policies aimed at an irreversible and step-by-step reduction of Dutch greenhouse gas emissions to limit global warming and climate change. To achieve this target before 2050, the Dutch Climate Act strives to a reduction of greenhouse gas emissions of 49 per cent in 2030 and a full CO2-neutral electricity production in 2050. The Minister of Economic Affairs and Climate Policy is responsible for determining a climate plan for the next 10 years, which contains the main points of the climate policy to be pursued to achieve the aforementioned objectives.

iii ETS

Similar to other EU Member States, the Netherlands participates in the ETS for trading greenhouse gas emission allowances. The Dutch implementing laws are contained in the EMA and require that listed facilities obtain a separate greenhouse gas emission permit from the Dutch Emissions Authority (NEa). This permit will not impose emission limits but instead will set out the framework for the facility's monitoring plan. Participating companies must surrender sufficient allowances to compensate their emissions (of the previous year). In most cases, facilities are eligible for a quantity of free allowances, while further emission allowances may be obtained through auctions or transactions with other parties participating in the ETS. According to the website of the NEa, around 450 companies in the Netherlands participate in the ETS, including industrial sectors and energy companies.

In this respect, reference must also be made to the recent introduction of a CO2 top-up levy for industry as per 1 January 2021. The purpose of this CO2 top-up levy for industry is to provide an incentive for investing in low carbon techniques, by charging a levy on top of the carbon price established under the EU ETS. A proposal for a CO2 top-up levy for electricity generation is still pending in the Dutch Senate.

iv Urgenda case and other climate change litigation

One of the most remarkable judgments relating to climate change is the landmark judgment of the District Court in The Hague of 24 June 2015.10 This judgment not only caught the attention of the Dutch media but also that of the foreign media. The District Court in The Hague ruled that the Netherlands must take more action to reduce greenhouse gas emissions. More specifically, the state had to ensure that the Dutch greenhouse gas emissions in the year 2020 would be at least 25 per cent lower than those in 1990. Given the serious political impact, the Dutch government appealed the District Court's ruling.

The Court of Appeal in The Hague ruled on the appeal on 9 October 2018.11 It agreed with the District Court that the state must ensure that Dutch greenhouse gas emissions in 2020 will be at least 25 per cent lower than those in 1990. The Court of Appeal therefore upheld the District Court's ruling.

The government appealed the judgment of the Court of Appeal with the Supreme Court. On 20 December 2019, the Supreme Court rendered its judgment and affirmed the judgment of the Court of Appeal. In its judgment, the Supreme Court rejected all arguments brought forward by the government, including the more fundamental argument that the present case should not be decided in court and that an order to reduce greenhouse gas emissions is at odds with the constitutional role of the judiciary. The Supreme Court ruled that, in line with the Court of Appeal, the obligation for the government to take measures against climate change can be derived from the right to life and the right to family life laid down in Article 2 and Article 8 of the European Convention on Human Rights.12

The government intends to comply with the Urgenda ruling and has announced a list of measures that should lead to an emission reduction of 25 per cent in 2020. The early closure of one of the coal-fired power plants in 2020 (discussed below) is one of the most prominent measures.

In addition to the Urgenda ruling, the District Court in The Hague very recently rendered another landmark ruling in proceedings against Royal Dutch Shell (Shell).13 In these proceedings, the District Court ruled that Shell must reduce its CO2-emissions, noting that such reduction obligation entails a results obligation in relation to the activities of Shell and a significant best-efforts obligation in relation to Shell's business relations, ranging from suppliers to end-users. This is the first time that a Dutch court has ordered a corporate to make emission cuts consistent with those pledged by the Member States under the 2015 Paris Climate Agreement. Shell has announced that it will appeal the ruling.

v Offshore Wind Energy Act

An Offshore Wind Energy Act (OWEA) entered into force on 1 July 2015 and provides for a completely new legal framework for the construction and operation of offshore wind farms. The OWEA aims to accelerate and streamline the decisions and authorisations required for an offshore wind farm. In short, the OWEA distinguishes between three stages of decision-making:

  1. the designation of areas for the construction of wind farms in the National Water Plan;
  2. the adoption of site decisions by the relevant ministers, specifying the exact location and the conditions under which a wind farm can be constructed and operated; and
  3. the tendering of an OWEA permit to a project developer granting the exclusive right to construct and operate the wind farm.

vi Coal Phase Out Act

On 10 December 2019, the Coal Phase Out Act was enacted. The Coal Phase Out Act contains a prohibition on the use of coal for electricity generation. The use of coal for the generation of electricity has been prohibited since 1 January 2020, provided that the coal-fired power plants with an efficiency of at least 44 per cent are exempted from the prohibition until 1 January 2030. This means that the three newest Dutch coal-fired power plants have a transitional period until 2030 to convert their plants into power plants using a different fuel than coal. However, these plants are relatively new and were therefore expected to operate for several decades. The operators of some of these plants have recently initiated legal proceeding against the Dutch State for not providing sufficient compensation for the early closure of their coal-fired power plants.

To comply with the Urgenda ruling, the Minister of Economic Affairs and Climate Policy has introduced a production cap for coal-fired power plants as of 1 January 2022. This means that the coal-fired power plants can only emit 35 per cent of the CO2 that would be produced in a calendar year if the installed capacity of the power plant was fully deployed. This measure will lead to a projected emission reduction of 5 to 7.5 megatons. This production cap together with the compensation for damages is part of the Coal Phase Out Act.

Outlook and conclusions

As indicated, Dutch environmental law is on the eve of the largest system reform to date: the introduction of the Environment and Planning Act and its implementing legislation. Through the Environment and Planning Act, the Dutch government aims to combine and simplify the regulations for projects that have an impact on the environment. The Environment and Planning Act integrates 26 current acts (including the above-mentioned Water Act, the Crisis and Recovery Act, and legislation on zoning and planning) and significantly reduces the amount of orders in council and ministerial decrees. The main framework and principles under the Environment and Planning Act will be further detailed and elaborated in four orders in council and a ministerial decree.

Although the Environmental and Planning Act will primarily serve to ensure a full integration of many acts and regulations, it will also introduce new concepts and legal instruments. In line with the WABO, environmental permits will be one of the key instruments for allowing those activities that may impact the environment. Whereas the WABO and the EMA take the concept of 'facility' (inrichting) as a reference point – in essence being business activities conducted within certain boundaries for a certain duration – the Environment and Planning Act will introduce the concept of an 'environmentally harmful activity'. This concept will, inter alia, provide for greater flexibility in assigning legal responsibilities in the case of multiple operators who conduct business activities on the same premises.

The Environment and Planning Act will also provide for a further integration of various environmental laws, such as the SPA and underlying regulations. While requirements for new contaminations remain in place, the regime under the Environmental and Planning Act is based on the assumption that all historic soil and groundwater contamination has been remedied, by the time the Environmental and Planning Act enters into force. Transitional laws, however, ensure that the SPA remains to apply to ongoing remediation activities. Similarly, other environmental laws discussed in this chapter will also be integrated in the Environmental and Planning Act.

The system reform under the Environmental and Planning Act follows relatively shortly after the introduction of the Water Act in 2009 and the WABO in 2010. These acts already meant a major shift in Dutch environmental law, and their introduction showed that the day-to-day legal practice requires some time to adapt to new laws and regulations. It is therefore likely to take some time before the benefits of the upcoming Environment and Planning Act are truly enjoyed after its entry into force. As noted above, the entry into force of the Environmental and Planning Act has been postponed and is currently expected on 1 July 2022. These delays have been primarily caused by technical problems related to the digital services under the new regime. Therefore, if and when the Environment and Planning Act finally enters into force remain to be seen.

Footnotes

1 Jochem Spaans is a partner, Marinus Winters is counsel, Rob van der Hulle is a senior associate, and Eva Vermeulen and Nina Dirkse are associates at Allen & Overy.

2 Council of State, 24 April 2019, ECLI:NL:RVS:2019:1356.

3 Supreme Court, 26 April 2016, ECLI:NL:HR:20163:733.

5 European Court of Justice, 12 December 2013, ECLI:EU:C:2013:821.

6 See, for instance, Council of State, 19 November 2014, ECLI:NL:RVS2014:4130 (on flux oil that still contained minor contaminations) and Council of State, 3 February 2016, ECLI:NL:RVS2016:192 (on electrical devices returned by customers).

7 Council of State, 17 May 2017, ECLI:NL:RVS:2017:1259 and ECLI:NL:RVS:2017:1260.

8 Council of State, 29 May 2019, ECLI:NL:RVS:2019:1603 and ECLI:NL:RVS:2019:1604.

9 See Council of State, 20 January 2021, ECLI:NL:RVS:2021:71.

10 District Court of The Hague, 24 June 2015, ECLI:NL:RBDHA:2015:7145.

11 Court of Appeal of The Hague, 9 October 2018, ECLI:NL:RBDHA:2015:7145.

12 Supreme Court, 18 December 2019, ECLI:NL:HR:2019:2006. See also the advisory opinion of (deputy) Procurator General Langemeijer and Advocate General Wissink, 13 September 2019, ECLI:NL:PHR:2019:1026.

13 See District Court of The Hague, 26 May 2021, ECLI:NL:RBDHA:2021:5337.

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