MANAGEMENT ACT
3. TWO CLASSICAL WAYS FOR REGULATORY INTERVENTIONS AND THEIR ABILITY TO
3.3. General Rules
A permit system will be completed by the possibility of going to court, in order to challenge the administrative decision on a permit request (or other relevant administrative decisions, such as the decision to revoke or to adjust a permit (characteristic 11: access to court)). Here it may also be considered who will be given access to court: only the people concerned, that is, NGOs, or for example everyone (actio popularis).
Last but not least, it is clearly indispensable to provide clear and adequate enforcement competences (characteristic 12: monitoring and enforcement provisions).49
The first general environmental rules in the Netherlands entered into force in 1988.51After that, a lot of new sets of general rules were established, now covering a significant proportion of industrial activities in the Netherlands (75 per cent).52 It is clearly the case that general rules can only be applied for homogeneous activities, as standard setting is no longer tailored. However, within the general rules it may be indicated to what extent some room for discretion is left to the decentralized authorities to deviate from the general rules (characteristic 3: limited competences for decentralized authorities to deviate from the general rules). The instrument of general binding rules is mostly (or profoundly) applicable for smaller activities. Complex activities should probably still be regulated by a permit, which facilitates an individual assessment and tailor-made permit conditions.
The scope of protection of the general binding rules should be considered as well. The general rules in the Netherlands aim at an integrated approach towards the environmental effects of the activities covered, and have in fact the same scope of protection as is the case with the permit based on the Environmental Management Act53 (characteristic 4: integrated (or isolated) scope). With respect to general rules, some harmonizing and coordinating provisions may indeed be necessary and do exist in Dutch environmental law – as the EMA does not contain a full integration of environmental law (char- acteristic 5: attention to harmonizing and coordinating provisions).54 For instance, under both the Environmental Management Act and the Water Pollution Act, general binding rules can be prescribed.55The legislative provi- sions enabling these general rules are harmonized to a large extent, which facilitates the establishment of integrated general rules based on both the Environmental Management Act and the Water Pollution Act. For instance, the coordinating provisions also become important when the legislator allows some combinations between on the one hand the general rules, and, on the other hand, the permit system. According to Dutch law, in certain cases both instruments may be applicable to one activity – and in that case coordination must take place in order to prevent a conflict of rules. It may be the case that, for instance, general rules based on the Soil Protection Act apply, together with the integrated permit based on the Environmental Management Act. If so, the competent permit authority must ensure that no substantive conflict may arise between these general rules and the specific permit. The general rules prevail
51 Cleij and Neuerburg (1988).
52 Kamerstukken II, 2001.2, 24 036, No. 258, pp. 28–9.
53 Art. 8.40 juncto Art. 11 Dutch Environmental Management Act.
54 Art. 8.9 and Art. 8.10 section 2, of the Dutch Environmental Management Act.
55 Dutch Environmental Management Act, Art. 8.40–Art. 8.46; Water Pollution Act Art. 2a–2e. Some slight deviations exist between these two provisions.
(unless a specific administrative competence has been provided to deviate from these rules can be used).56
The general rules may be based on economic-technical considerations. The Environmental Management Act includes for instance such a criterion, mean- ing that environmental measures will be prescribed as far as can be reasonably urged by the operators. This provision is often called the alara criterion (mean- ing that authorities are obliged to prescribe measures ‘as low (though) as reasonably achievable’). This economic-technological criterion applies to the competence to decide on general rules as well (characteristic 6: economic- technological considerations as a legislative direction for the general rules).57 Due to the European environmental law, and more specifically the IPPC Directive, the ‘Dutch’ alara criterion will be replaced by the criterion called
‘best available technique’.58
The relationship between the design of general rules with especially bind- ing environmental quality standards is also taken into account in the Dutch Environmental Management Act, although it seems easier with permitting to take account of environmental plans and environmental quality standards (characteristic 7: relationship with EQS and planning to be considered).
General rules are in fact legislative acts, in which no individual standard setting takes place. This means that compared with permitting, the procedural elements for general rules differ a great deal. The collection of information – necessary for careful standard setting – takes place on a general, more abstract level, taking into account the homogeneous outcome of the specific category of activities (characteristic 8: collection of relevant homogeneous information, on a general scale). The draft texts for general rules are open to comments and advice. In this respect an open public decision-making process also takes place and access to general information is provided (characteristic 9: access to general information and characteristic 10: access to decision-making on the general rules.). In addition, access to environmental information about the specific activ- ities, and access to possible fine-tuning decisions need to be addressed as well.
According to Dutch law the general rules cannot be challenged before the administrative court (the General Administrative Law Act does not (yet) provide for access to the administrative court for general binding rules).59
56 Art. 8.9 juncto Art. 8.10 section 2 Dutch Environmental Management Act;
Soil Protection Act, Art. 19.
57 Dutch Environmental Management Act, Art. 8.11(3) juncto Art. 8.40(3).
58 See the legislative proposal that was presented to the Second Chamber of the Dutch Parliament on 9 August 2004 (Wijziging van de Wet Milieubeheer en de Wet Verontreiniging Oppervlaktewateren), No. 29 711 (the text can be found at www.
overheid.nl).
59 GALA Art. 8.2.
However, there are ways in which it is possible to address the civil court. To some extent it is explicitly made possible within the general rules to fine-tune these rules through administrative decision-making on specific cases. Such a tailored decision can be brought to the administrative court (characteristic 11:
access to court in order to fight the general rules, or particular individual deci- sions). And, as is the case with respect to permitting, for the general rules adequate monitoring and enforcement provisions need to be established as well (characteristic 12: monitoring and enforcement provisions).
Experience has showed that there are some compliance problems with the general rules.60In addition, to some extent the absence of flexibility is criti- cized. In an evaluative study of a selected set of general rules it was concluded that in order to protect the environment effectively it would be necessary to adjust the general rules to the specificities of the activities, and their local situ- ation.61 In recent sets of general rules, the central government has adopted more flexible standards, like a duty of care, and goal-oriented conditions. This more flexible approach is chosen in order to prevent statistical standard setting. As a consequence, more responsibility is given to the operators them- selves, and their control over decentralized administrative bodies. In the end, one might wonder whether the general rules are indeed always the best option for large groups of activities. One might also examine whether a simple permit scheme, to be executed by decentralized bodies, together with general rules and/or guidelines from central government, would also be an attractive instru- ment. In choosing between these regulatory options, the restriction of oppor- tunities for corruption should be addressed as well. In this respect, especially for developing countries where corruption often occurs, clear general rules seem to be preferred above competences with a lot of room for discretion and non-binding guidelines.