Environment and planning

Introduction While being a small country (41,543 km2), the Netherlands accommodates nearly 18 million people and constitutes one of the world’s strongest economies. One of the reasons for its strong economy, is the open, international climate of the Dutch economy, being both inviting and facilitating for foreign investors. The Netherlands is, amongst others, an attractive logistics hub for international transport of goods. As a result, the country is among the top 10 exporters of goods around the world. As many other nations, the Netherlands faces environmental challenges. The combination of a densely populated country (which is for approx. 33% situated below sea level) and a labor-intensive economy has led to a comprehensive, complex body of environmental legislation in the Netherlands. In this introduction, we will provide an overview of the environmental laws and regulations in the Netherlands. In addition, we will discuss the key competent authorities for enforcement, permitting, and enforcement starting principles and possible civil legal implications for breaching Dutch applicable environmental norms, both written (environmental legislation) and unwritten (duty of care). Finally, we will briefly discuss relevant, recent Dutch case law and present an outlook on the developments on the horizon of Dutch environmental law. Statutory environmental framework The Dutch government’s obligation to care for the environment is laid down in the Dutch constitution. This obligation has been met by the creation of various environmental acts, ranging from broad, framework acts to specific acts covering one environmental topic (such as soil pollution).

General (framework) acts

In the Netherlands, decisions taken by administrative bodies are governed by the General Administrative Law Act (Algemene wet bestuursrecht). This Act lays down the formal principles for decision-making and the (general) procedural rules for objection and appeal against a decision and (partly) the general principles of good governance (algemene beginselen van behoorlijk bestuur), such as the principle of proportionality (evenredigheidsbeginsel) and the principle of due care (zorgvuldigheidsbeginsel). The main environmental, procedural framework act is the Environmental Law (General Provisions) Act (Wet algemene bepalingen omgevingsrecht). In this act, the procedural provisions for most environmentally relevant decisions are laid down (for example for permits). The Environmental Management Act (Wet milieubeheer) is another important framework act which includes general principles for various environmental topics (a duty of care, waste regulations, environmental impact assessments, noise hindrance, emission rights trading, etcetera). Both acts have an extensive body of subordinate decrees and regulations. Certain specific environmental topics are covered on one specific act, being amongst others:

• the Soil Protection Act (Wet bodembescherming);
• the Water Act (Waterwet);
• the Noise Abatement Act (Wet geluidhinder);
• the Nature Protection Act (Wet natuurbescherming);
• the Spatial Planning Act (Wet ruimtelijke ordening); and
• the Nuclear Energy Act (Kernenergiewet).

These acts include norms specific to the subject covered therein and impose requirements on parties (both preventive as remedial) breaching those norms and form the basis for various competent authorities to enforce these norms. Examples of such obligations are (soil) remediation actions and (incidental or regular) reporting obligations.

Publicity of environmental information

Pursuant to the Aarhus Convention (1998) on access to information, public participation in decision-making and access to justice in environmental matters and Directive (EC) 2003/4 on public access to environmental information, all parties and persons in the Netherlands can file requests for environmental information with the competent authorities based on the Government Information (Public Access) Act (Wet openbaarheid van bestuur). This act includes a limited amount of reasons (such as: financial information, personal opinions) for the competent authority to (partly) refuse a request for information. The grounds for refusal are more limited with respect to environmental information. Some authorities also have the policy the proactively publicize enforcement decisions.

European environmental legislation

A large number of EU environmental directives and regulations are relevant within the Netherlands, either because of their direct effect (e.g. REACH, Regulation (EC) 1907/2006), or because they are implemented by means of national legislation (e.g. European Waste Directive (EC) 2009/98 and the Restriction of Hazardous Substances Directive (EU) 2011/65). Key authorities The legal framework provides for a division of tasks between the national administrative bodies (the ministers), the provincial executive (gedeputeerde staten), the water boards (waterschap) and the municipal executive (burgemeester en wethouders). As a general rule, the municipal executive is the competent authority for environmental matters. The power to permit and supervise larger facilities is however generally attributed to the provincial executive. The relevant minister can be the competent authority for defense facilities or environmental permits for mining installations. On a national level, several administrative bodies manage environmental matters on behalf of the competent ministers. One example is the Human Environment and Transport Inspectorate (ILT), which works for the Ministry of Infrastructure and Water Management (Ministerie van Infrastructuur en Waterstaat) on topics such as transport and waste management. On a regional level, various municipalities and/or provinces participate in one of the 29 regional environmental agencies (regionale uitvoeringsdienst /omgevingsdienst) to jointly manage environmental matters. A regional environmental agency will generally issue permits or take enforcement actions on behalf of the competent administrative body. Permitting and enforcement

Environmental permits

In the past years, the Dutch government tried to reduce environmental permit requirements and replaced these with general rules. Nevertheless, certain activities still require a permit. In any event, a permit to operate a facility will be required if the activities are within the scope of the European Industrial Emissions Directive (integrated pollution prevention and control). Construction works and deviation from a zoning plan will in principle also require an environmental permit (omgevingsvergunning). Some statutory exceptions do apply. Depending on the nature of the activities, an environmental impact assessment (milieu-effectrapportage) has to be drawn up. If a project impacts environmentally protected areas or species, a permit in the sense of the Nature Protection Act may also be required. A permit can be issued subject to conditions.

Zoning

Most sites in the Netherlands are covered by a municipal zoning plan (bestemmingsplan). The zoning plan provides which use is allowed at a certain plot. It can also include building restrictions and parking provisions. Deviation from a zoning plan is not allowed, unless it is covered by a permit. The provincial executive and the minister also have zoning instruments which can be used if provincial or national interests are at play.

Enforcement

The competent authority has a general duty to enforce (beginselplicht tot handhaving) environmental regulations under Dutch law. As a result, it must in such event in principle initiate enforcement action and apply one of the available enforcement instruments, unless there are particular circumstances not to. Dutch law does not have a statute of limitations concept for enforcement action by the competent authority under administrative law. Dutch administrative law includes various enforcement instruments:

• order under threat of a penalty (last onder dwangsom);
• order under threat of administrative force (last onder bestuursdwang);
• administrative fine (bestuurlijke boete); and
• permit withdrawal.

The aim of the first two administrative enforcement instruments is not to punish the offender, but to end the violation. The administrative fine is aimed at punishing the offender and qualifies as a “criminal charge”, as a result of which such decisions are covered by Article 6 of the European Human rights Treaty (fair trial). Dutch environmental law generally does not provide for the possibility to impose an administrative fine (with some exceptions). Permitting and enforcement decisions are open to objections by interested parties with the relevant competent authority and/or appeal with the competent administrative court. For most environmental matters, the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) is the supreme court. Violations of an environmental regulation often also qualify as a criminal offence under the Economic Offences Act (Wet op de economische delicten), which can be prosecuted by the Public Prosecutor (officier van justitie). The Public Prosecutor’s Office has a specialized branch for environmental matters; the National Office for Serious Fraud, Environmental Crime and Asset Confiscation (Functioneel Parket). Civil environmental liabilities

Tort liability for environmental matters

Parties suffering damages as a result of a breach of an environmental norm or standard can initiate litigation based on, amongst others, a tort claim (onrechtmatige daad). Administrative or criminal sanctions can result in (binding) proof in a civil court that the defendant acted unlawfully. Important to note is that Dutch law provides for several strict liabilities (risico-aansprakelijkheid) with respect to environmental matters. Strict liability is solely based on the capacity or quality of the liable party and not on culpability (verwijtbaarheid). Strict liability can, amongst others, apply to holders of hazardous substances, operators of a mining facilities and operators of landfills. Parent companies, shareholders or directors that performed actions of control (leading to the breach and, as a result, the claimed damage) can be addressed directly for civil law liability under certain conditions.

Environmental matters in mergers and acquisitions

Under the Dutch Civil Code, both the buyer and the seller have certain obligations before entering into a purchase agreement – the purchaser has an obligation to investigate (onderzoeksplicht) and the seller must provide information that may be relevant for the buyer. These obligations may be interpreted differently depending on the object and the professionalism of the parties. Parties can make contractual arrangements regarding any known or unknown environmental liabilities (by means of, for example, warranties, indemnities or post-closing mechanisms). Important to note is that such contractual arrangement will in principle not affect the statutory environmental obligations of the parties. In case of a share purchase, the environmental rights and liabilities of the entity whose shares were transferred, will of course in principle transfer to the purchaser as well. In asset transactions, the environmental liabilities will in principle remain with the seller absent any contractual arrangements to the contrary. Most environmental permits are inseparably linked to the object of the permit rather than linked to the person or party that requests the permit (droite de suite). As a result, these permits generally transfer to a buyer by operation of law (even without a specific contractual basis). Exceptions apply, for example with respect to a permit in the sense of the Nuclear Energy Act or a permit to permanently reside in a vacation home. The competent authority must be notified of the transfer of an environmental permit in advance of the transfer.

Mass environmental claims

Under Dutch law, a foundation or association (for instance, NGOs) can file a claim on behalf a group of people suffering losses if in summary, according to the articles of association, the aim of the relevant organization is to represent the interest of a specified group of people with a common interest and the organization also represents this group outside of legal proceedings (through other activities). Recently, the certain formal requirements have been added that must be met by such foundation or association. As of 1 January 2020, (binding) group settlement procedures are possible under the Dutch Settlement of Large-scale Losses or Damage (Class Actions) Act (Wet Collectieve Afhandeling Massaschade). Recent legal developments and outlook The Netherlands has seen a variety of relevant environmental case law and new legislation recently. We will discuss some of the most prominent matters and will also provide an outlook to the near future.

Nitrogen

On 29 May 2019, the Administrative Jurisdiction Division of the Council of State ruled that the Programmatic Approach to Nitrogen (Programmatische Aanpak Stikstof) was non-binding. This program was used to create space for economic activities (such as building developments) while causing an increase in nitrogen deposits, which can impact nature and, more specific, Natura 2000 areas. According to the Administrative Jurisdiction Division of the Council of State it was impossible to create such space based on future measures which were not scientifically proven to have effect. The impact of the 2019 ruling remains relevant in 2021. The Dutch Parliament adopted a new Nitrogen Act (Stikstofwet) in March 2021. The Act includes long-term nitrogen deposition reduction goals and financial regulations to restore damaged protected areas, buy-out schemes for farmers who want to stop their business (a squeeze-out scheme, uitkoopregeling) and facilitates investments in sustainable construction materials (such as electric trucks). This is intended to create more space for building activities without a permit in the sense of the Nature Protection Act being required.

PFAS

An object of concern for the Dutch government are PFAS substances (per- and polyfluoroalkyl substances), which were identified to be substances of very high concern and turned out to be present in Dutch soil. In July 2020, the Ministry of Infrastructure and Water Management published new research and issued new (less strict) norms for the (re-)use of soil containing with PFAS. De wide-spread use of PFAS may mean this remains relevant in the future.

The requirements to appeal a permit

On January 14, 2021, the Court of Justice of the European Union (CJEU) issued an important ruling for Dutch procedural administrative law (C-826/18, ECLI:EU:C:2021:7). Under Dutch law, when a competent authority takes an environmental decision (for instance regarding a permit application), the so-called uniform public preparatory procedure (uniforme openbare voorbereidingsprocedure) can apply. In short, this procedure allows any party to file an opinion (zienswijze) with respect to a draft decision, but only interested parties (belanghebbenden) who have also filed an opinion are in principle allowed to appeal a decision in court. The CJEU ruled that the above-mentioned procedural provisions can be contrary to the Aarhus Convention. In summary, any party that can participate in the consultation exercise (inspraakprocedure) regarding a decision, should be able to appeal that decision with the administrative court, according to the CJEU. Although not obligatory under the Aarhus Convention, under the uniform public preparatory procedure any person can file an opinion. As a result, any person should be able to appeal the relevant decision with the administrative court. In addition, participating in the consultation exercise cannot be a requirement for a party with sufficient interest (belanghebbende) to be able to appeal a decision with the administrative court, ruled the CJEU. This judgment can have significant consequences for Dutch procedural administrative law. Persons and/or parties that previously were denied access to the administrative court (due to not filing an opinion) may be able to appeal against a decision which was prepared through uniform public preparatory procedure. The Dutch government may propose new legislation as a result of this judgment.

Environmental, Social & Governance

A draft directive and draft report was published by the European Parliament on September 11, 2020 EU mandatory corporate due diligence and corporate initiative. Under the directive, EU member states are required to introduce rules compelling companies to carry out due diligence with respect to human rights, environmental and governance risks. With respect to environmental issues, companies must (amongst others) identify, assess and monitor possible impact of its operations and business relations to the right to a healthy environment, which includes climate change, air and water pollution, deforestation, loss in biodiversity and greenhouse emission. In addition, companies are required to establish grievance mechanisms that allow stakeholders to voice concerns and, when a company has caused harm, companies should provide for or cooperate with remediation. A competent authority is to be designated to have oversight of the directive, to conduct investigations regarding compliance and, ultimately, take remedial action (by imposing a penalty). In addition, several Dutch political parties introduced a bill in Dutch Parliament requiring companies to do business in a socially responsible way and to, among other things, eliminate activities that do environmental harm from their supply chain. More ESG related legislation can be expected in the future.

The Environment and Planning Act (Omgevingswet)

The majority of Dutch environmental legislation is to be incorporated in the new Environment and Planning Act (Omgevingswet), which is scheduled to be implemented in 2022. The aim of the Environment and Planning Act is to harmonize and bundle the broad body of existing environmental legislation with a view to creating a single legal framework Act for land use planning, environmental protection, nature conservation, construction of buildings, urban and rural redevelopment, water management, protection of cultural heritage, development of major public and private works and mining and soil. The Environment and Planning Act entails some significant, material changes for permit applicants, interested parties and the competent authorities. The implementation of the Environment and Planning Act has been postponed several times, amongst others due to the COVID-19 pandemic and the workload this a new legal framework would cause for administrative bodies.

More focus on enforcement

In March 2021, the Van Aartsen Commission (appointed by the government) issued a report in which it argued that the system of permitting, supervision and enforcement in the Netherlands must be improved. The commission recommended ten measures to improve this system, being amongst others: a minimum size of the regional environmental agencies, more criminal enforcement and more supervision by the central government on the regional agencies. This is likely to result in more enforcement activity by the regional agencies and the Public Prosecutor’s Office. It may also lead to a reduction of the policy differences between the various regional agencies.