Nicole Niessen
3. THE DUTCH MODEL: A ROUGH SKETCH
3.3. Environmental Protection Law
Environmental protection is laid down as a basic right in Article 21 of the Dutch Constitution:
It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment.
This does not mean that Dutch citizens are entitled to a clean environment.
Article 21 obliges the Dutch government to develop environmental policy, yet in doing so the government is entitled to consider, and prioritize, other inter- ests as well. Pursuant to Article 21, the Dutch government has produced numerous regulations to protect the environment. In point of fact, many achievements in this field have been prompted by international law. In partic- ular, environmental regulations of the European Union (EU) increasingly impose a strait-jacket on Dutch environmental law and policy. Although the EU normally lays down goals by means of directives instead of concrete legal prescriptions for its Member States, this no doubt sets considerable limits on their regulatory discretion.43
Presently the Dutch legal framework for environmental law consists of sector legislation addressing specific environmental pollution as well as a general environmental management act. The enactment of the Wet milieube- heer (Wm) in 1993 has been a major step forward in the construction of inte- grated environmental management. Like the GALA, the Wm is a typical build-on law. Thus far it has fully absorbed the sector legislation on nuisance, waste, and small chemical waste. At the same time, other sector legislation has remained in place.44The Wm distinguishes between the following regulatory instruments: (a) environmental policy plans, (b) licences, (c) general rules, (d) environmental quality norms, and (e) financial instruments.45Below I discuss in further detail the categories (a) to (c).
(a) Environmental policy plans must be established by the central govern- ment and the provinces (Articles 4.3 and 4.9 Wm), whilst the municipal governments are not obliged to do so.46 Environmental operational programmes, on the other hand, shall be made by all three levels of government
43 Directive 96/61/EC of 24 September 1996 concerning Integrated Pollution Prevention and Control (IPPC), Official Journal L 257, 10.10.1996, pp. 26–40, for example, lays down the duty to coordinate environmental licensing. See Chapter by Marjan Peeters, Section 2.2.
44 Michiels (2003, p. 19).
45 Ibid., p. 4.
46 Ibid., p. 27.
(Articles 4.7, 4.14, and 4.20 Wm). There is no hierarchical relationship between the environmental plans or programmes of state, provinces, and municipalities.47 In addition, environmental plans and programmes have no direct legal force. Licensing authorities must nevertheless ‘take into account’
(rekening houden met) the provisions of environmental plans and programmes because of the general principle of ‘careful preparation’ (zorgvuldige voor- bereiding).48
(b) The Wm licence is commonly referred to as the integrated environmen- tal licence. This, however, is only partly correct because besides the Wm licence separate environmental licenses still exist, as enumerated in Article 22.1 Wm.49A Wm licence is required for polluting establishments (inrichting) not falling within the scope of general rules (Article 8.1 Wm). Next to the inte- grated environmental licence, the Wm contains special coordination mecha- nisms between the Wm licence and other (environmental) licences. Here it suffices to mention the coordination provisions concerning the Wm licence on the one hand and the Water Surface Pollution licence and the Building licence on the other hand.50On the basis of Article 8.2 Wm, the executive board of the municipality (rural as well as urban areas) in which the polluting establish- ment is located, entirely or primarily, is the competent authority to issue the Wm licence. In exceptional cases the provincial government or the central government is appointed as the licensing authority.
This does not mean that the municipal executive can freely decide to grant – on condition of specific instructions and restrictions – or to refuse the Wm licence. The Wm, in Articles 8.8. to 8.11, imposes an elaborate reference framework on the municipal executive when deciding on the application for a Wm licence. In essence this reference framework guarantees that due consid- eration is paid to national as well as to provincial environmental regulations and interests.51Naturally, the environmental quality standards as determined by general government order (algemene maatregelen van bestuur) on the basis of Chapter 5 Wm or Article 8.45 Wm must be observed (Article 8.8 (3) Wm).52 Next to this, the loose concept of ‘protection of the environment’
47 Ibid., p. 29.
48 Ibid., pp. 30–1. See Article 8.8 (2) Wm and Article 3:2 GALA.
49 Article 22.1 Wm stipulates that inter alia the Groundwater Act, the Manure Act, the Nuclear Energy Act, the Surface Water Pollution Act maintain their own licensing system next to the Wm licence.
50 Articles 8.28 to 8.34 Wm, Article 8.5 Wm juncto Articles 8 and 52 of the Housing Act, and Articles 7b to 7e of the Water Surface Pollution Act.
51 Michiels (2003, p. 52).
52 On the basis of Article 8.46 Wm, the provincial government is authorized to issue additional requirements next to those issued by the central government pursuant to Article 8.45 Wm.
(bescherming van het milieu), which Articles 8.8 and 8.10 Wm establish as the principal ground on which to refuse an environmental licence, is largely spec- ified by a series of extra-legal instructions (buitenwettelijke richtlijnen). These instructions contain environmental expert information, and the court considers it very important that licensing authorities comply with these standards.53
(c) The instrument of general rules has become quite popular in the 1980s.
General rules are established by government regulation (algemene maatrege- len van bestuur), and they replace the environmental licence (Article 8.40 Wm).54 Today approximately 75 per cent of polluting establishments fall within a category to which general rules apply.55There are several advantages to this system. First, a set of general rules applies to whole categories of pollut- ing establishments, which relieves the (licensing) administration. Secondly, in principle the holders of polluting establishments that are regulated by means of general rules need not apply for an environmental licence. Thirdly, general rules contribute to legal certainty and equality.
But there are also some disadvantages to general rules. For example, general rules produce confection rather than tailor-made environmental stan- dards, they complicate the adjustment of environmental standards to the prescriptions of other relevant licences in individual cases, and they reduce the participation of interested citizens in the decision-making process. Another issue is that general rules entail a re-centralization of environmental decision- making. This, however, is not necessarily a negative effect. Some of these disadvantages have been compensated for by giving municipalities the oppor- tunity to issue supplementary requirements.56
On the basis of Article 8.12 Wm the licensing authority – equally the authority to which notice is given of the applicability of general rules ex Article 8.41 (2) Wm – is also responsible for administrative enforcement.57
53 These instructions are normally issued by the central government, but some- times also by private institutions. The court punishes non-compliance with these stan- dards for neglect of the principles of careful preparation (Article 3:2 GALA) and motivation (Article 3:46 GALA) of administrative decisions. By the way, the licensing authority is entitled to deviate from the instructions ‘in favor of the environment’.
From: Michiels (2003, pp. 61–62, 105–108).
54 Also on the basis of the Water Pollution Act (WPA), Articles 2a–2e, the government is authorized to promulgate general rules that replace the licence for water pollution. It is possible that a single set of general rules deals with Wm- and WPA- activities simultaneously. Marjan Peeters has written more extensively on this issue in Section 3.2.3 of her paper for this workshop.
55 Michiels (2003, p. 85).
56 Ibid., pp. 86–7.
57 Ibid., p. 220: Before the enactment of the Wm it was difficult to identify the authority responsible for enforcement in a particular case due to scattered environ- mental legislation.
The provisions on administrative enforcement of environmental law are laid down in both the GALA (Chapter 5: basic provisions) and the Wm (Chapter 18: additional provisions). Taking care of enforcement includes responsibility for supervision as well as the imposition of sanctions. The enforcing authority holds final responsibility but does not need to perform all supervision activi- ties itself. Next to the Wm authority a number of other agencies conduct super- vision as well, such as the authority entrusted with the protection of water surface quality, the VROM inspectorate, the national General Inspectorate, the police, and the public prosecutor. In point of fact, any administrative body involved in the implementation of the Wm and other environmental legislation can appoint environmental inspectors.58 Their supervision competences are spelled out in Article 18.4 Wm and in Article 5.11 GALA,59and Article 18.3 Wm warrants that in each Province their activities are coordinated. Finally, any citizen can request the Wm authority to take enforcement measures, and if such a request is refused, the citizen can start court proceedings (Article 18.4 (1) Wm).