This country-specific Q&A provides an overview of Environment laws and regulations applicable in The Netherlands.
What is the environmental framework and the key pieces of environmental legislation in your jurisdiction?
The key pieces of environmental legislation are (i) the European Environmental Regulations and Directives, mostly implemented in Netherlands Environmental law by reference legislation, (ii) Article 21 of the Constitution of the Kingdom of the Netherlands, which provides that government care is focused on keeping the country habitable and on protection and improvement of the environment, (iii) the Environmental Management Act (Wet milieubeheer), the Environmental and Building Law (General Provisions) Act (Wet algemene bepalingen omgevingsrecht), and (iv) the subordinate decrees and regulations that detail the rules of the regulatory framework for environmental planning, permitting and control.
Furthermore, there is specific legislation for soil protection; the Soil Protection Act (Wet bodembescherming), water quality and quantity control; the Water Act (Waterwet) and the prevention of noise hindrance; the Noise Abatement Act (Wet geluidhinder).
Further integration of environmental legislation is expected to enter into force in 2022: the Environmental and Building Law Act (Omgevingswet). This act is expected to contain six core instruments related to control of the use and the protection of the living environment, being the environment and planning vision, the program, subordinate legislation, general rules for certain activities, the environmental and building permit and the project allowance. Local rules will probably be found in the municipal environment plan, the provincial environment decree and the water board decree. The aim of the legislature is to have the tasks and public responsibilities carried out at local level. The central government will only make rules where such is more effective or efficient, for instance, with respect to best available techniques (BAT) or technical requirements for buildings and constructions.
Another key principle will be the improved and formalized enhancement of the participation of civilians, enterprises and non-governmental organizations in public decision-making.
Who are the primary environmental regulatory authorities in your jurisdiction? To what extent do they enforce environmental requirements?
The primary environmental regulatory authorities in the Netherlands are the Minster and the Secretary of State for Transport, Public Works and Water Management (de Minister voor Infrastructuur en Wonen en de Staatssecretaris voor Infrastructuur en Wonen) at central Executive level, who lead the Ministry of Transport, Public Works and Water Management (Ministerie van Infrastructuur en Waterstaat). Its enforcement agency is the Inspectorate for the Living Environment and Transport (Inspectie Leefomgeving en Transport).
With respect to planning and environment, at provincial level, the regulator is the Provincial Council (Provinciale Staten). The most important enforcement authority is the Provincial Executive (Gedeputeerde Staten). At municipal level, those are the Municipal Council (Gemeenteraad) and the Municipal Executive (Burgemeester en Wethouders) respectively. The regulator for the Water Boards is the General Management Board (Algemeen Bestuur) and the enforcement authority is the Executive Committee (Dagelijks Bestuur).
What is the framework for the environmental permitting regime in your jurisdiction?
The general framework for environmental permitting in the Netherlands is formed by the Environmental Management Act (Wet milieubeheer) and the Environmental Permitting (General Provisions) Act (Wet algemene bepalingen omgevingsrecht) and subordinate decrees. The framework for water permits is in the Water Act (Waterwet).
Can environmental permits be transferred between entities in your jurisdiction? If so, what is the process for transferring?
Yes, environmental permits can be transferred between entities in the Netherlands. This requires an official notification four weeks prior to the transfer of (the control over) the assets.
What rights of appeal are there against regulators with regards to decisions to grant environmental permits?
There are two relevant sorts of permitting procedures in the field of environmental law in the Netherlands. In the regular procedure (reguliere procedure), interested parties can file their objections against the permit within six weeks after the permit decision has been published. The competent authority will hear the objecting party and render their decision to the objections. There then follows a six-week appeal period with the regional courts or, depending on the nature of the permit, the Administrative Law Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State). The uniform public preparation procedure (uniforme openbare voorbereidingsprocedure) entails a public notification and the possibility for interested parties to lodge their views on the draft permit (zienswijze), following which, the final permit is granted or denied. Appeal against this decision can be filed with the administrative courts.
Are environmental impact assessments (EIAs) for certain projects required in your jurisdiction? If so, what are the main elements of EIAs and to what extent can EIAs be challenged?
In the Netherlands, some applications for an environmental permit are subject to the requirement of an Environmental Impact Assessment (EIA). This forms a separate part of the permitting procedure that precedes the actual permit application. EIA requirements follow from the European Directive on the Environmental Impact Assessments (2011/92/EU) and the European Directive on Strategic Environmental Assessments (2001/42/EC). These requirements are related to individual projects, such as an integrated industrial installation, certain planning decisions or decisions in relation to large infrastructure projects.
An EIA, in short, must contain a description of the (goal of the) intended activity, the alternatives that should reasonably be taken into account and the motivation of the choice for these alternatives to be described. Furthermore, it must contain a description of the preceding plans, the current state of the environment in the relevant zone of the plan or project, a description of the expected environmental effects of the intended activity and the alternatives mentioned, the expected developments, the measures to be taken in view of the mitigation of the important environmental effects, an overview of the information that is lacking and a management summary.
The EIA can be challenged in an appeal against the permit or government decision that it precedes.
What is the framework for determining and allocating liability for contamination of soil and groundwater in your jurisdiction, and what are the applicable regulatory regimes?
In the Netherlands, the framework for the prevention, control and remediation of polluted soil and groundwater is formed by the Soil Protection Act (Wet bodembescherming). Civil liability on the basis of tort or non-performance (breach of contract) is dealt with by general civil law.
Under what circumstances is there a positive obligation to investigate land for potential soil and groundwater contamination? Is there a positive obligation to provide any investigative reports to regulatory authorities?
Netherlands environmental law requires potential soil and groundwater pollution to be investigated in the case of an environmental incident, in the case of the intention to remediate, mitigate or relocate polluted soil, for certain activities that impose environmental risks for the soil or the groundwater quality in view of a permit application and after termination of certain activities on the basis of environmental permit requirements. Possible pollution may also have to be (further) investigated on the basis of the general duty of care under the Soil Protection Act and the competent authority can order further investigations in the case of known soil or groundwater pollution. Soil and groundwater pollution caused by certain activities or incidents must be reported to the competent authority. The competent authority may also require a soil investigation report in other cases.
If land is found to be contaminated, or pollutants are discovered to be migrating to neighbouring land, is there a duty to report this contamination to relevant authorities?
There is a statutory duty to report soil or groundwater pollution that was caused as a consequence of activities or an environmental incident, regardless of whether it is migrating to neighbouring land.
Does the owner of land that is affected by historical contamination have a private right of action against a previous owner of the land when that previous owner caused the contamination?
Yes, the owner of land that is affected by historical contamination might have a private right of action against a previous owner/polluter next to possible actions of the competent authority or the State in the case of tort or unjust enrichment. The success of this action will largely depend on the circumstances, amongst which, when and how the pollution was caused, whether the pollution was known by the seller and the purchaser and whether there are any contractual provisions with respect to soil or groundwater pollution in the sale and purchase agreement(s).
What are the key laws and controls governing the regulatory regime for waste in your jurisdiction?
Waste prevention and handling is regulated in the Environmental Management Act. This entails a duty of care, the roles and responsibilities of the waste producer, the governmental entities involved and the waste management companies, brokers and transporters.
Furthermore, the transboundary movement of waste is regulated by the European Regulation on the Transboundary Shipment of Waste (EVOA).
Do producers of waste retain any liabilities in respect of the waste after having transferred it to another person for treatment or disposal off-site (e.g. if the other person goes bankrupt or does not properly handle or dispose of the waste)?
A waste producer may retain liability after having transferred the waste to another person on the basis of the general duty of care with respect to waste in the sense of the Environmental Control Act if he knew or should have known that such could have adverse effects to the environment. In the case of the transboundary shipment of waste, the producer that ships the waste abroad must in some cases file a notification and provide financial security on the basis of the European Regulation on the Transboundary Shipment of Waste. The notifier can also be forced to take the waste back if the shipment cannot be completed as intended or when a shipment is illegal.
To what extent do producers of certain products (e.g. packaging/electronic devices) have obligations regarding the take-back of waste?
A producer or importer has the duty of care (i) to ensure the recycling of 65% (wt) on an annual basis of the packaging material that he provides or imports and that he discards in the Netherlands, and (ii) that 45% (wt) of the material is reused. Next to this, the producer or importer must take prevention measures.
Producers or importers of various products such as electrical and electronic equipment and end-of-life vehicles must register and comply with the take back obligations that follow from the European directives regarding extended producer responsibilities, such as the WEEE-directive.
What are the duties of owners/occupiers of premises in relation to asbestos, or other deleterious materials, found on their land and in their buildings?
Generally speaking, asbestos does not have to be removed if it does not pose a threat to the health of the persons using or occupying the building. Such may be the case of the asbestos is bound without releasing fibres into the air. Asbestos investigations and measures to prevent exposure are required in the case of the suspicion of asbestos being present in the (part of the) building where the building or construction activities are going to take place. Asbestos investigations and asbestos removal must be done by certified companies. The removal cannot be done by the same company as the one who performs the asbestos investigation.
There are legal limit values for asbestos in the air and soil in view of the prevention of asbestos exposure. The presence of asbestos may lead to the requirement of further investigations, to remediate and to take (temporary) control measures.
To what extent are product regulations (e.g. REACH, CLP, TSCA and equivalent regimes) applicable in your jurisdiction? Provide a short, high-level summary of the relevant provisions.
The REACH and CLP requirements are applicable in the Netherlands on the basis of European Regulations which are of direct effect. These regulations include requirements with respect to the registration, packaging and labelling of hazardous substances. Furthermore, the international transport of hazardous substances is dealt with in the Transport of Hazardous Substances Act (Wet vervoer gevaarlijke stoffen), that implements the requirements from the international ADR Treaty (Accord Européen relatif au transport international des marchandises Dangereuses par Route). This legislative scheme contains requirements with respect to the means of transport for the safe transport of hazardous substances by road, rail and water.
What provisions are there in your jurisdiction concerning energy efficiency (e.g. energy efficiency auditing requirements) in your jurisdiction?
In the Netherlands jurisdiction, legal requirements are laid down with respect to energy reduction, energy efficiency audits and energy efficiency labelling. Energy reduction requirements are imposed on industries with a certain level of natural gas or electrical energy consumption on the basis of the Environmental Management Act and the Environmental Permitting (General Provisions) Act. The auditing requirements with respect to energy efficiency and energy labelling requirements for buildings apply in the Netherlands on the basis of referral legislation, implementing the European Energy Efficiency Directive (EED) and the European Directive on the energy performance of buildings (EPBD). As of 1 January 2023, office buildings will be subject to the requirement of complying with energy label C requirements, apart from some exemptions.
What are the key policies, principles, targets, and laws relating to the reduction of greenhouse gas emissions (e.g. emissions trading schemes) and the increase of the use of renewable energy (such as wind power) in your jurisdiction?
The European ETS requirements are implemented in the Netherlands in the Environmental Management Act. Around 450 Netherlands installations in the sense of the European ETS Directive are subject to the requirement of an emission permit, granted by the Netherlands Emission Authority (NEa). This includes not only industrial installations that emit CO2, but also CCS installations and pipelines between the installation of an emitter and a CCS storage facility. Those permit holders are also subject to mandatory emission monitoring and reporting requirements. The emission of biomass CO2 is exempted from these requirements. An emitter needs emission allowances under the European ETS scheme. The operator of the facility must surrender at least the number of allowances that equals the volume of the emissions that the facility has caused in the previous year.
The European target was to reduce the CO2 emissions of the relevant industry sectors by 21% in 2020 as opposed to 2005. As of 1 January 2021, the European ETS will enter into the fourth phase (EU ETS 2021-2030). The European Target for 2030 is a reduction of 43% of ETS emissions as opposed to 2005, which may become even more stringent. The number of emission rights will be diminished by 2.2 % per year, but emission rights originated in the third phase can still be used in the fourth phase.
Netherlands policy is focusing on the closing of coal fired energy plants and the stimulation of wind and solar power. The legal instruments used are the national and regional energy policies and spatial plans (with mandatory targets for provinces and municipalities and tenders for off shore wind farming) and subsidy schemes for sustainable energy projects. Furthermore, there is a national policy on energy transition, based on which, heating and cooking by households using natural gas is to be phased out. Recently the government published a draft of a new Energy Act, which will integrate the current Electricity Act and Gas Act. The Energy Act is intended to further facilitate the transition of the Netherlands economy into a sustainable energy economy.
To what extent are environmental, social, and governance (ESG) issues a material consideration in your jurisdiction? Is ESG due diligence for transactions and ESG due diligence in supply chains becoming mandatory or more common? To what extent are companies obliged to report on ESG matters? Has COVID-19 had any impact in relation to companies’ approach to ESG in your jurisdiction?
Investors and asset managers in the Netherlands are increasingly applying ESG criteria in their investment decisions and due diligence investigations increasingly focus on ESG related issues. In the Netherlands, environmental legal due diligence used to be customary, but it now seems to move from environmental compliance only to more sustainability concepts (people, planet, profit). The legislature is exerting more pressure on governance related subjects by installing more stringent KYC and source of finance information requirements in respect of transactions. Of the various obligations to report on ESG matters we mention the obligation for larger establishments to report about energy saving measures,. Also environmental permits often contain obligations to report about ESG matters. We have seen no indications that COVID 19 will fundamentally change companies’ approach to ESG, although everywhere in the Netherlands employers have paid a lot of attention to the prevention of COVID-19 contamination.
To what extent can the following persons be held liable for breaches of environmental law and/or pollution caused by a company: (a) the company itself; (b) the shareholders of the company; (c) the directors of the company; (d) a parent company; (e) entities (e.g. banks) that have lent money to the company; and (f) any other entities?
For breaches of environmental law, the company and its management can be held accountable under administrative law. Under criminal law, involved employees and factual leaders can also be held liable. The general principles of tort and contract law apply to environmental civil law, although there are some specific (risk based) liabilities with respect to hazardous substances, buildings, landfills and mining activities. Shareholders, parent companies and lenders can only be held liable under specific circumstances. Landlords seem to be more prone to environmental enforcement in the case their lessee is violating environmental law and they knew or should have known about those violations whilst refraining from taking action.
To what extent can: (a) a buyer assume any pre-acquisition environmental liabilities in an asset sale/share sale; and (b) a seller retain any environmental liabilities after an asset sale/share sale in your jurisdiction?
A buyer can assume pre-acquisition environmental liabilities in the case of an acquisition of the share capital in a perpetrator and/or of a company that is liable under administrative, criminal or civil law for past environmental liabilities. After all, the transfer of the share capital in that company will not change its liability. The transfer of such liabilities may be avoided in the case of an asset transaction, but this may not work if the environmental violation is not ended at the transfer date. The seller may retain environmental liability if he was liable for or has contributed to environmental pollution on the basis of his own role in the past (under administrative or civil law) or as a perpetrator or factual leader (under criminal law).
What duties to disclose environmental information does a seller have in a transaction? Is environmental due diligence commonplace in your jurisdiction?
The duty to disclose environmental information is part of the general obligation of the seller to disclose material defects. Environmental legal due diligence is common in the Netherlands, in view of the purchaser’s obligation to examine the object of sale and purchase.
What environmental risks can be covered by insurance in your jurisdiction, and what types of environmental insurance policy are commonly available? Is environmental insurance regularly obtained in practice?
Insurance companies do insure environmental risks in the Netherlands. The presence/knowledge of occurrences in the past that have already caused environmental damage is an important limiting factor to the coverage. In transactions, a combination of warranties and an environmental insurance can, in some cases, be a key factor in reaching an understanding between seller and purchaser. Furthermore, insurance companies do offer insurance products related to soil or groundwater pollution and remediation costs.
To what extent are there public registers of environmental information kept by public authorities in your jurisdiction? If so, what is the process by which parties can access this information?
The Land Register keeps information on decisions taken by the competent authorities with respect to soil and ground water pollution. Such information can be retrieved through their website.
To what extent is there a requirement on public bodies in your jurisdiction to disclose environmental information to parties that request it?
The Government Information (Public Access) Act (Wet openbaarheid van bestuur), requires government bodies to disclose information to the public on request. The applicant does not have to have or explain his particular interest in the matter at hand. There are exclusions, but these are limited. Furthermore, the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters is implemented in the Government Information (Public Access) Act, aimed at the disclosure of environmental information to the public.
What impact, if any, has COVID-19 had in relation to environmental regulations and enforcement in your jurisdiction?
COVID-19 did not (yet) lead to new environmental regulations and enforcement in The Netherlands, although we have seen that the enforcement activities of the public authorities in 2020 for a short period of time have been placed on the back burner because of the COVID-19.
Have there been any significant updates in environmental law in your jurisdiction in the past three years? Are there any material proposals for significant updates or reforms in the near future?
A significant development is the verdict of the regional court, the Court of Appeals and more recently of the Supreme Court in the Urgenda climate case in the Netherlands, in which the regional court ruled that the State would act negligently, in violation of its duty of care and unlawfully in the case of a national CO2 emissions level reduction below the level of 25 to 40 % in 2020. The Court of Appeals upheld this verdict and supported this by including Articles 2 and 8 ECHR (right of life and the right to respect one’s private and family life) as a basis of its judgment, which was approved by the Supreme Court.
Furthermore, the nullification of the integrated approach to nitrogen by the Administrative Law Division of the Council of State has stalled and jeopardized numerous Netherlands projects where the nitrogen deposition on sensitive bird and habitat areas were concerned. Third, a staggering number of sites found to be contaminated with PFAS substances has led to a new Netherlands policy on target values and the re-use of PFAS-containing soil in ground and water works.
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