Netherlands

The Netherlands has witnessed several administrative law cases against the commissioning of new coal fired power plants between 2008 and 2016. These concerned the construction of three new coal fired power stations in two locations on the Dutch coast as part of the Dutch energy security policy.

Regarding standing, the General Administrative Law Act provides that ‘interested parties’ may appeal against decisions taken by the public authorities, including authorizations to development projects. (Section 8:1:1). Individuals are considered “interested” when they are directly affected by the decision, whereas environmental organizations  need to prove that the interest they represent, including the general and collective ones, may be affected. (Section 1:2, General Administrative Law Act).

Regarding grounds for project-specific litigation, it should be noted that it is not possible to challenge policies before administrative courts. Moreover, CO₂ emissions of installations cannot be regulated under environmental permits (cf. the EU Industrial Emission Directive), meaning that project permits will not specifically address climate change impacts.

Moreover, NGOs could initiate project-specific litigation on the basis of Dutch and EU nature and conservation law (e.g. the EU Wild Bird and Habitat Directives). It was to these latter grounds that the plaintiffs resorted to, in the cases against the construction of the coal power plants. (Administrative Law Decisions of the Council of State decisions of February 2008, ECLI:NL:RVS:2008:BC5785;4 May 2011, ECLI:NL:RVS:2011:BQ3434;24 August 2011, ECLI:NL:RVS:2011:BR5684; 30 October 2013, ECLI:NL:RVS:2013:1694; 27 January 2016, ECLI:NL:RVS:2016:170, District Court of Amsterdam, 7 April 2008, ECLI:NL:RBAMS:2008:BC9281).  In Stichting Greenpeace Netherlands v. Board of Zeeland Provincial Executive, the environmental NGO claimed that due to the plants’ vicinity to protected areas under the EU Birds and Habitat directive, the projects’ impacts needed to be investigated before authorizing the plants’ construction.  (Administrative Law Division of the Council of State decision of 28 February 2008, ECLI:NL: RVS:BC5785) Along with other NGOs, Greenpeace appealed the revised decisions that followed, based on the same legal grounds, until their final judicial uphelding in 2016.

As for the remedies, under the administrative law, courts might dispose the annulment of the decision, whenever the appeal is admissible and well-founded, or provisional measures, where speed is essential to preserve the interests involved (sections 7:25 and 8:81 of the General Administrative Law Act). In the mentioned cases, the plaintiffs asked for either a preliminary injunction, i.e., to stop the construction of the power plants until further investigation, or for the annulment of the decision. As an example, in Stichting Greenpeace Netherlands v. Board of Zeeland Provincial Executive, the Council of State agreed to stop the construction, while demanding to research on the project’s impacts on the protected species. ((Administrative Law Division of the Council of State decision of 28 February 2008, ECLI:NL: RVS:BC5785) In 2011, the new decision authorizing the construction was annulled based on its failure to properly consider the project’s adverse impacts, including the emissions of sulphur and nitrogen oxide. (Administrative Law Decision of the Council of State of 24 August 2011, ECLI: NL: RVS: 2011: BR5684) Finally, in 2016 the Council of State put an end to the legal saga, considering that the municipal decision had thoroughly considered the conservation requirements in its impact assessment (27 January 2016, ECLI:NL:RVS:2016:170)

Further project-specific litigation to challenge insufficient (or the lack of) adaptation measures could rely on Article 21 of the Dutch Constitution(i.e. the economic right to the ‘liveability’ of the country) to interpret broad open norms within the regulatory and administrative regime (e.g. within spatial planning and the environment or flooding). Moreover, litigation against carbon-intensive projects could rely on the revised EIA directive, which includes climate change among the factors to be considered in a project’s impact assessment (art. 3 lett. C EU Directive 2014/52).