Environmental Law 2020

Last Updated November 13, 2020

Netherlands

Law and Practice

Authors



Loyens & Loeff has an environmental law group that is part of a fully integrated (tax and legal) firm with home markets in the Benelux countries and Switzerland, as well as offices in all the major financial centres, such as London, New York, Paris and Hong Kong. The group advises on the full range of environmental law matters, from the development of new projects and facilities to the restructuring of complex permit situations, and from compliance audits to inspection procedures and litigation that involves the regulatory authorities. The team’s expertise includes EU and other cross-border regulations pertaining to, inter alia, waste, chemicals, emission trade and environmental liabilities. Clients come from both the private and public sectors, reflecting the team’s ability to provide knowledgeable and practical guidance in all environmental law matters.

As a small and densely populated country and a member of the European Union, the Netherlands has a comprehensive and well-established regulatory framework governing environmental protection.

The principal source of the Dutch environmental regulatory framework is the Environmental Management Act (Wet milieubeheer – EMA), which includes (generally applicable) regulations and (minimum) standards for a large variety of environmental aspects, such as air pollution, noise hindrance, emission rights and waste management, as well as a more procedural framework in respect of (the issuing of) permits and/or other public law consents. In addition, the EMA serves as a statutory basis for many lower environmental decrees and regulations, including the Activities (Environmental Management) Decree (Activiteitenbesluit).

In the Activities Decree, general rules are stipulated with regard to the operation of facilities in the Netherlands that cover virtually all relevant environmental aspects (eg, noise limits, air emission standards and odour limits). Under the Activities Decree, specified categories of environmentally less sensitive activities are governed by general regulations and/or require a notification to be filed with the competent authorities. Further to this notification, customised provisions (maatwerkvoorschriften) can be imposed in addition to the general regulations if this is deemed necessary by the authorities to ensure adequate protection of the environment in light of the specific circumstances of the relevant facility. Facilities that (generally) have a more substantial environmental impact – referred to as "Type-C facilities" – require an environmental permit for their activities. The environmental permit, if granted, will include a set of facility-specific regulations that will apply in addition to the applicable general rules under the Activities Decree. Generally speaking, facilities requiring a permit for their operations should comply with the best available techniques stipulated in the European Best Available Techniques reference documents (BREFs).

In addition to the above, various other laws provide for environmental protection regulations, such as the Water Act, which stipulates a comprehensive framework for all activities that may (negatively) impact the quality of surface waters. This Act includes permit requirements and conditions for waste water management and water extraction activities, whereas the framework for (the protection of) soil and groundwater quality is laid down in the Soil Protection Act, which includes a general duty of care pursuant to which a party causing spills or leakages is, in principle, obliged to remediate any resulting soil/groundwater pollution.

On 29 May 2019 the Administrative Jurisdiction Division of the Council of State, which is the highest Dutch administrative court, ruled the so-called Dutch Nitrogen Programme (PAS) in violation of the EU Habitats Directive. The effects of this ruling are still felt on a range of topics, particularly (re)development projects and/or extensions of existing environmental facilities. Under the previously applicable PAS regime, operators of facilities in many situations were able to rely on generic exemptions from permit requirements with respect to nitrogen deposition. This is no longer an option. Following the PAS ruling, it will have to be determined, on a case-by-case basis, whether a specific project or activity might adversely affect nature conservation areas under the Natura 2000 network. If it cannot be demonstrated on the basis of ecological substantiation that negative effects are not to be expected, a nature permit requirement applies. However, it will generally be very difficult to prove that no negative effects are to be expected, due to the combination of high nitrogen deposition levels and the density of nitrogen-sensitive Natura 2000 areas in the Netherlands. As a result, consent under the Nature Conservation Act will have to be sought in most cases and may not be obtained if it cannot be demonstrated that the conservation objectives of the relevant Natura 2000 area are safeguarded. At the time of writing, governmental bodies are still working on solutions for dealing with the situation that has arisen. In this respect, it has become apparent that local/regional solutions will mostly be required to ensure compliance with the EU Habitats Directive, rather than an overarching national scheme.

From a procedural point of view, the General Environmental Permitting Act (Wet algemene bepalingen omgevingsrecht – GEPA) needs mentioning here as the overarching framework for the issuing of permits in the environmental domain. With the enactment of the GEPA in 2010, around 25 formerly separate permits were replaced with a single "all-in-one permit for physical aspects". The Act makes it possible to integrate several aspects of one project or facility into a single permit, thereby giving applicants considerable freedom in arranging the process of requesting a permit.

Lastly, when discussing Dutch environmental law, another development that should be noted is the current legislative project aimed at fully integrating all acts, decrees and regulations that apply to the physical environment (fysieke leefomgeving) – such as the Spatial Planning Act (Wet ruimtelijke ordening), the GEPA, the Crisis and Recovery Act (Crisis- en herstelwet), the Noise Abatement Act (Wet geluidhinder), the Soil Protection Act (Wet bodembescherming – SPA), the (new) Nature Conservation Act (Wet natuurbescherming) and the Water Act (Waterwet) – into one all-encompassing Environmental and Planning Act (Omgevingswet).

The expectation is that this new Environmental and Planning Act will take effect in 2022. However, the law-making process has proved to be much more complicated than initially expected (being one of the single largest legislative projects in (recent) Dutch history) and a number of difficulties (relating to the IT infrastructure required, amongst other factors) in the implementation of the Act are still foreseen. Looking at the latest developments, it remains to be seen whether this deadline will be met, as well as how much will change compared to the current situation and how quickly such changes would take shape. In any event, the (legislative) developments in this respect are expected to remain a topic of debate in the coming years.

In the Netherlands, environmental policy and enforcement are applied on both a local and national level. Local governments such as municipalities, provinces and water authorities grant permits and enforce them for environmental topics such as odour, noise, environment (municipalities), nature, large facilities and soil (the province) and water management and quality (water authorities). Municipalities and provinces may instruct regional environmental agencies (omgevingsdiensten) to carry out supervisory and enforcement-related tasks on their behalf.

Furthermore, competent authorities are appointed on a national level with respect to certain topics. The key regulatory authorities in that respect are as follows:

  • The (Living) Environment and Transportation Inspectorate (Inspectie Leefomgeving en Transport – ILT) has a supervisory role in the field of transport, waste and chemicals. In that context, the ILT is competent to decide on permits for high-risk water discharges, and to receive notifications of the transport of waste on the basis of the European Waste Shipment Regulation.
  • The Dutch Emissions Authority (Nederlandse Emissie Autoriteit – NEA) has a supervisory role in the context of the climate and the reduction of CO₂. In that context, the NEA is competent to grant emission permits and to supervise the EU emissions trading scheme and renewable fuel regulations.
  • Other national supervisory authorities are also active on specific topics, such as occupational safety (the Inspectie SZW), mining (SODM), and pesticides and biocides (NVWA).

All national supervisory authorities operate under the name and instruction of the competent Ministry.

The power of regulatory authorities is generally governed by the General Administrative Law Act, and in specific legislation where additional powers are granted. Supervisory authorities in the Netherlands have quite extensive investigative and access powers to carry out their tasks. In general, supervisory authorities have the following investigative powers:

  • to access business locations (whether accompanied by the police or not);
  • to obtain business-related data and documents (unless legally privileged);
  • to obtain information, verbally or in writing; and
  • to investigate objects and take samples.

Investigations may take place unannounced. Following an inspection, an inspection report or an official report is usually drafted and sent to the site operator.

The most important administrative sanctions are as follows:

  • administrative fine;
  • administrative enforcement order; and
  • order subject to a fine.

Administrative sanctions can be divided into punitive sanctions (administrative fine) and remedial sanctions (administrative enforcement order and order subject to a fine). Where a punitive sanction is intended to add suffering to the offender, a remedial sanction serves to end a violation and restore a lawful situation.

Most violations of environmental requirements also qualify as criminal offences under the Economic Offences Act. Therefore, the Public Prosecution Service (Openbaar Ministerie) is the main competent authority to carry out enforcement tasks from a criminal law perspective as well.

In general, there are objections to the cumulation of sanctions of a punitive nature. For example, it is not permitted to impose an administrative fine if criminal action is already being pursued for the same conduct. However, restorative and punitive sanctions may, in principle, cumulate and apply to the same conduct, although the severity of the administrative measure must be taken into account when determining the extent of the punitive sanction.

There is a legal obligation for the operator of a facility to co-operate with the investigation of a supervisory authority. Non-co-operation may result in enforcement measures, such as a fine or even criminal enforcement. The supervisory authority is only allowed to refuse to provide will-dependent material (such as explanations) if it intends to impose a punitive sanction (such as a criminal sanction or administrative fine). This only applies to the suspected violator, and not to witnesses.

Supervisory authorities may only use their investigative powers as far as is necessary to carry out their investigation. The supervision should be proportional to the scope of the investigation.

The actions of supervisory authorities are not subject to administrative objections or appeal. If a subject is of the opinion that supervisory powers are used incorrectly, this would have to be brought forward in a procedure against an actual enforcement measure.

In general, the environmental regulatory framework as primarily stipulated in the EMA and Activities Decree will apply to all economical or comparable human activities of any substance that are operated within certain geographical boundaries and that fall within categories as specified in Annex I to the General Environmental Permitting Decree (Besluit omgevingsrecht). Activities with a potentially more than remote environmental impact should be expected to fall within those categories. For reference: an office building will usually be subject to the environmental regulatory framework, while a retail unit will usually not be, unless, for instance, powerful technical installations would be present.

Within the categories of activities that are governed by the environmental regulatory framework, only those activities with a more substantial environmental impact are required to operate under an environmental permit. Other less environmentally sensitive activities can be operated solely under the applicable general rules under the Activities Decrees (Type-A facilities) or on the basis of an additional notification to be filed with the competent authorities that may lead to customised provisions being imposed in addition to the general rules (Type-B facilities). The activities that require an environmental permit are qualified as Type-C facilities and include IPPC facilities, as referred to in the Integrated Pollution Prevention and Control Regime laid down in EU Directive 2010/75/EU, as well as other high-impact facilities specifically designated as such in Annex I of the General Environmental Permitting Decree.

The environmental permit can pertain to the opening of a new facility or to relevant subsequent changes to the activities. In the event that the opening or change of a facility is indissoluble from certain other activities that would require a permit or government consent (eg, a building permit and/or planning permission), the environmental permit application must be combined with the application for the other permit/consent, and will be issued as an integrated permit for the activities involved.

An environmental permit to open a new (Type-C) facility is applied for with the competent authorities. With the exception of a restricted number of certain categories in which a limited review applies (omgevingsvergunning beperkte milieutoets), the authorities will subsequently draw up a draft decision that can either constitute the intention to issue or deny the permit that is applied for. The draft decision is published and, along with the underlying documents (eg, technical surveys and draft permit provisions), made available for public inspection for a six-week period. Within this six-week period, third parties and/or the applicant can submit a statement of view (zienswijze) with regard to the draft decision, after which the authorities will issue their final decision. A statutory decision period of six months applies but there are no direct legal consequences attached if this period is not complied with by the authorities.

The authorities' decision to grant or deny the permit can be appealed within six weeks at the Administrative Jurisdiction Division of the Dutch Council of State (Afdeling bestuursrechtspraak van de Raad van State) by parties with a specific vested interest. The right to appeal is, in principle, reserved to parties that had previously filed a statement of view regarding the draft decision. In practice, appeal proceedings should be expected to take 8–12 months.

In the event of modifications to the operation of a facility that already holds an environmental permit, the procedure to obtain the required permit will depend on the nature of the changes. If the modification falls outside the scope of the existing permit but is environmentally neutral, a permit for the change should, in principle, be issued within eight weeks of the permit application. The authorities can extend the decision period once for a maximum of six weeks and if the decision period is not complied with, the permit will be issued by operation of law. Objections against the decision to grant the permit can be filed by interested parties, within six weeks, with the regulatory authorities that have issued the permit. The decision on the objections can be followed by appeal proceedings with the Administrative District Court and the Council of State.

In the event of modifications that are not environmentally neutral, the procedure for the opening of a new (Type-C) facility will apply. Depending on the extent of the changes to the facility, the operator can choose to apply for a partial modification or for a complete revision of the existing permit. In certain situations, the competent authorities can stipulate that the operator is required to apply for a complete revision of the permit situation.

Under Dutch law, environmental issues are primarily administrative matters. However, administrative liability is not the only risk following an environmental breach: potential criminal and civil liabilities must also be taken into account.

Administrative liability can lead to sanctions and measures being imposed by a Dutch regulatory authority, as a result of a violation of environmental laws or regulations. In the event of such a breach, Dutch law provides for three types of potential administrative enforcement measures: an administrative fine (administratieve boete), an order subject to a penalty (last onder dwangsom) and direct enforcement by the authorities (bestuursdwang). In the event of a breach of environmental laws, in most cases the authority will impose an order subject to penalty. That way, the offender is given the opportunity to end the breach itself within a certain period of time in order to avoid a fine. However, this remedial sanction can be combined with a fine should the authority deem this appropriate regarding the severity of the breach.

Secondly, there is the risk of criminal liability for the company as well as the de facto manager (feitelijk leidinggever). Most environmental violations are qualified as "economic offences", which in turn qualify as criminal infringements (overtredingen) when the offence is not committed deliberately or as a crime (misdrijf) in the event of a deliberate violation. This qualification affects the sanction that may be imposed. In short, the offender could face a fine, community punishment (taakstraf) or even imprisonment. Besides these main types of punishments, additional punishments may be imposed, such as an obligation to temporarily cease business operations.

Please note that the administrative and criminal enforcement can coincide in certain circumstances. As a result, offenders could be subject to administrative remedial sanctions and a criminal prosecution simultaneously.

Thirdly, civil liability plays a role when an environmental breach causes an unlawful act towards a third party – in the case of harmful pollution or hindrance, for example. Civil liability could lead to the obligation to pay damages to the aggrieved party. In order for a successful civil claim on the basis of an unlawful act, the unlawful act must, in short, have caused damages, and there must be a causal relation between the unlawful act and this damage. In addition, the violated provision must be designed to protect against this damage.

Civil Liability

On the basis of Article 3:310 in conjunction with Article 6:175 of the Dutch Civil Code, the expiry date for a legal claim for compensation of damages or a contractual fine as a result of pollution of the air, water or soil is five years. This period commences the day following the day on which the aggrieved party became aware of (i) the damage or the enforceability of the claim and (ii) the identity of the party liable for the damage. Regardless of these conditions being fulfilled, the claim expires 30 years after the incident in any case.

Criminal Enforcement

The expiration of the period during which criminal enforcement is possible depends on the maximum sentence of that violation. For environmental offences/crimes, this means that the expiry period varies, but will expire 12 years after the violation at the latest.

Administrative Enforcement

The power to enforce an illegal situation does not "expire" after a specific period of time. In principle, administrative bodies will maintain their power to impose enforcement measures on an offender.

Third Parties/Legal Successors

If an order subject to penalty is imposed by an authority, that authority can decide that this measure will automatically apply to a possible legal successor if a legal basis for this approach is present (which is, for example, the case in the GEPA). As a result, the legal successor faces the risk of having to pay a penalty.

In the event of soil pollution, a party could be ordered by an authority to investigate or remediate the pollution. Generally speaking, this party will also carry the costs of the remediation. In most cases, this party is the owner of a polluted property or land, but it could also be the leaseholder. This, however, does not have to be the party that caused the pollution. Recourse against the party that did cause the pollution may be possible on the basis of civil law or in the purchase agreement.

As the new owner of real estate or land could face such enforcement measures, it is very important to perform thorough due diligence on environmental topics during the acquisition process.

The different types of liability under Dutch law were described in 5.1 Liability for Historical Environmental Incidents or Damage. If an offender faces one of these liabilities, the key defences, limits and conditions to such liability are as follows:

  • expiration periods in civil and criminal law (verjaring);
  • in the case of criminal liability, an argument that the offender did not deliberately commit the offence (in light of the distinction between infringements and crimes);
  • in the case of civil liability, an argument that there is no causal relation between the unlawful act and this damage; and
  • in the case of administrative liability:
    1. a challenge of the lawfulness of the manner in which the authority exercised its powers;
    2. a challenge of the evidence of the offence or incident; or
    3. an argument that the enforcement is disproportionate to the interests that it serves.

A general civil liability is assumed for any person causing damages through a breach of environment law. This general liability is supplemented in specific legislation related to specific topics (such as asbestos, soil contamination or hazardous substances).

No specific rules apply for corporate entities. With respect to administrative or criminal fines, the type and size of the violator can be relevant, as the proportionality of the punishment can be connected to the size/entity of a company (eg, big corporations are subject to higher fines than a shopkeeper acting on his or her own).

Shareholders or a parent company cannot generally be liable for environmental damage or breaches of environmental law of the (violating) company in which they have a share and/or their subsidiaries as such, unless the shareholder/parent company qualifies as "factual management" of the violating company or in the case of unification with the violating company. This may be the case for a single or majority shareholder who is also the executive/statutory director.

A factual manager (a natural person who does not have to be a statutory director or executive) can be held liable (next to the company itself) if it was, in short, responsible for preventing the breach occurring and it occurred nonetheless, where it had the means and opportunity to prevent the breach from occurring. It is a relatively high standard and is not often successfully demonstrated in court by a public prosecutor.

Statutory directors can be held liable for the proper performance of their duties and for the general course of affairs. If a director is culpable of a serious imputable act in relation to the performance of their duties as a director, he/she can be held liable next to the company itself. It is, however, a high threshold more commonly invoked in matters relating to corporate law and (statutory) governance or bankruptcy.

A factual manager (a natural person who does not have to be a statutory director or executive) can be held liable (next to the company itself) if it was, in short, responsible for preventing the breach occurring and it occurred nonetheless, where it had the means and opportunity to prevent the breach from occurring. It is a relatively high standard and is not often successfully demonstrated in court by a public prosecutor.

The fines as such are not different for a specific violation, but as the "factual manager" is always a natural person, natural persons might be sanctioned differently (lower fines) than the company as violator.

The company (or its directors and/or officers) can take out a so-called D&O policy (directors and officers insurance) providing coverage for liabilities based on acts and omissions committed or omitted by the directors and officers. However, D&O insurance may exclude claims resulting from or based on, inter alia, the actual, alleged or threatened disposal, emission or escape of environmental contamination substances. This will depend on the insurer and the policy.

Furthermore, exclusions may apply with respect to penalties for the breach of environmental law (especially when such penalty results from intent or gross negligence).

Generally, lenders will not be liable for the borrower’s environmental actions or property, unless factual management is present or such is explicitly agreed upon. If the lender becomes the owner of the borrower’s properties (eg, land, company), relevant liability connected to that property may be transferred, such as liability relating to soil contamination or permit compliance (for aspects of the environment, water, safety, etc).

The lender should refrain from exercising control or influence in the day-to-day management decisions of environmental aspects.

Apart from contract liability, civil claims for compensation in environmental-related cases are generally brought on the basis of an unlawful act. Typically, compensation can be awarded in the event of unlawful nuisance and violation of a permit, as well as based on a certain duty of care arising from specific environmental legislation (for example, relating to soil protection) or even an "unwritten" duty of care. For instance, in Dutch case law, it was accepted that the Dutch state has a duty of care to take adequate measures to protect its citizens from the consequences of climate change. The Dutch Civil Code further provides a basis for the civil liability of professional users and custodians of hazardous substances and dumpsite and mine work operators.

Under Dutch law, the concepts of exemplary or punitive damages are unknown and, hence, cannot be awarded by courts.

The Netherlands has always been at the forefront of collective redress in Europe. Since the early 1990s, a claim organisation that represents a certain group of interests can start a class action to obtain declaratory relief. However, Dutch law did not facilitate a class action for monetary damages until 1 January 2020, when the Act on Collective Damages in Class Actions (WAMCA) entered into effect. Class actions filed after the WAMCA taking effect can relate to monetary damages (allegedly) caused by events on or after 15 November 2016. A class action can be litigated through the competent Dutch civil court. The same rules apply for all class actions, irrespective of whether monetary relief is sought and the legal grounds for damages. As a starting point, the judgment in a class action is binding on all Dutch residents that fall within the scope of the claim organisation, with the exception of those residents that opted out.

A landmark case that is expected to set an important precedent within other countries is the Urgenda case, also known as the "Climate Case", in which a class action was initiated by the Urgenda Foundation (on behalf of 886 Dutch citizens) against the Dutch State. Both the district court and the court of appeal of The Hague held the Dutch State liable for not taking adequate measures to protect its citizens from the consequences of climate change, and ordered the Dutch State to take additional measures to further reduce the emission of greenhouse gases in the Netherlands by at least 25% compared to 1990, before the end of 2020. On 20 December 2019, the Dutch Supreme Court confirmed that not reducing emissions accordingly will lead to a breach of the Dutch State’s duty of care towards citizens (constituting a wrongful act). As a result, the earlier order of the court of appeal in The Hague has now become final.

Generally, under Dutch law, civil liability for damages and breaches of law can be limited by means of indemnities and other contractual arrangements between parties, such as buyers and sellers. However, invoking a limitation of one’s liability or any other contractual arrangement causing the transfer or apportionment of liability can be rejected if it is considered unacceptable according to the standards of reasonableness and fairness, or if it is in violation of law, public order or morals. Indemnities and other contractual arrangements between parties do not affect the parties’ liability to regulators.

Environmental liability insurances are offered for corporate liability issues. Such insurances are additional to the general corporate liability insurance that frequently excludes or limits these types of risks.

In this jurisdiction, it is also possible to take out environmental damage insurance covering the financial risks of environmental damage such as surface water or soil contamination. Generally, such insurance provides coverage for the environmental damage on your own plot and any adjacent plot, provided that the contamination originated from your plot. Liability is not required for this coverage.

Dutch soil protection is governed by both soil protection legislation (SPA) and environmental legislation (EMA). Under soil protection legislation, the contaminator can be held responsible for the remediation of a contamination. In cases where the contamination was caused prior to 1987 (when the current legislation entered into force), remediation is only required when the contamination is considered severe and the remediation is considered urgent.

Remediation has to be notified to the competent authority. In a substantial remediation, the competent authority has to approve the remediation plan, the evaluation report and, if applicable, the aftercare plan. The competent authority has the possibility to impose remediation orders (depending on the type, size and urgency of the remediation). Also, co-ordinated approaches are possible when a contamination covers a wider area (with multiple owners).

When the soil of an industrial area/parcel is contaminated (up to a point where remediation is required), the owner as such can also be held responsible for the remediation. Although competent authorities generally aim to have the contaminator remediate the soil, if that is no longer possible or feasible, the owner can alternatively be held responsible (at the discretion of the competent authority).

Key Policies

The Netherlands is a member of multiple international treaties regarding climate change, including the Climate Agreement as presented at the Climate Conference of Paris in 2015. The key policies in the Netherlands regarding climate change mainly derive from the objectives as set out in the Climate Agreement of Paris, including the goal to keep anthropogenic global warming below 2˚C. With respect thereto, the key national policy aims to reduce the use of energy sources in general (for instance, by making certain energy-saving measures mandatory) and to promote the use of energy derived from renewable energy resources instead of the use of energy derived from fossil resources.

Key Principles

The key principles regarding climate change have been laid down in the Climate Agreement as published by the Dutch government on 28 June 2019 and the Climate Act of 2 July 2019 (which mainly entered into force on 1 September 2019). The latter Act stipulates that, by 2030, the emission of greenhouse gases must be reduced by at least 49% in comparison with the emission of greenhouse gases in 1990, and that these gases must be reduced by at least 95% by 2050. However, if other countries participate, the Netherlands wants to raise the European target to 55% less greenhouse gas emissions by 2030.

Following a court decision in a civil procedure initiated by the climate foundation Urgenda against the State of the Netherlands, the emission of greenhouse gases must be reduced by at least 25% by the end of 2020 in comparison to the emission of greenhouse gases in 1990. The Climate Act further stipulates that the Dutch government is obligated to make a "climate plan" that describes how the objectives as determined in the Climate Act can be met in the first ten years following the publication of the plan. This climate plan includes a description of the expected use of energy derived from renewable resources and the measures that should be taken in order to promote the use of energy derived from renewable resources.

The key policy regarding climate change in the Netherlands has also been laid down in an agreement between the Dutch government and multiple organisations, called the "Energy Agreement", as published by the Social and Economic Council in September 2013. According to this Energy Agreement, at least 16% of all energy that is produced within the Netherlands must derive from renewable resources by 2023. This agreement further contains multiple arrangements regarding energy-saving measures.

Key Laws

A key national law related to climate change is the Climate Act (Bulletin of Acts and Decrees 2019/253), as discussed above. Furthermore, the Prohibition of Coal in Electricity Production Act (Wet verbod op kolen bij elektriciteitsproductie) was passed at the end of 2019, which prohibits the use of coal as a fuel within electricity generating facilities. Pursuant to this Act, all coal-fired power plants within the Netherlands must close prior to 2030. Reference is further made to the Activities (Environmental Management) Decree (Bulletin of Acts and Decrees 2007, 415), pursuant to which the operator of a facility must implement all energy-saving measures with a payback period of five years. Reference is also made to the Royal Decree of 2 November 2018 (Bulletin of Acts and Decrees 2018, 380), pursuant to which every office within the Netherlands that has a ground floor area larger than 100 square metres must have at least the energy label C by 2023.

As indicated in 12.1 Key Policies, Principles and Laws, Dutch policy and legislation have set out the following targets to reduce greenhouse gas emissions within the Netherlands:

  • by the end of 2020, the emission of greenhouse gases within the Netherlands must be reduced by at least 25% in comparison with the emission of greenhouse gases within the Netherlands in 1990;
  • by 2023, at least 16% of all energy that is produced within the Netherlands must derive from renewable resources;
  • by 2030, the emission of greenhouse gases within the Netherlands must be reduced by at least 49% in comparison with the emission of greenhouse gases within the Netherlands in 1990; and
  • by 2050, the emission of greenhouse gases within the Netherlands must be reduced by at least 95% in comparison with the emission of greenhouse gases within the Netherlands in 1990.

The use of asbestos-containing materials (ACMs) for construction activities has been banned in the Netherlands since 1993. Due to the fact that ACMs were frequently used prior to that date, asbestos is still commonly present in buildings in the Netherlands, especially buildings that were constructed in the 1960s and 1970s. In relation to this ban, the regulatory framework is very much geared towards advancing human health aspects and protecting the general public from the risks associated with ACMs.

That said, under Dutch law, there is no obligation to actively remove ACMs that are present in a building, provided that the presence of such ACMs does not entail health and safety risks for the users of the relevant building or to the public in general.

The removal of ACMs will be required in the event of the demolition or (partial) refurbishment of a building containing ACMs. In addition, the removal of asbestos might be required pursuant to the Soil Protection Act, as noted in 11.1 Key Laws Governing Contaminated Land. In such an event, the Asbestos Removal Decree 2005 stipulates strict rules and conditions for such remediation works, including an obligation to carry out an asbestos investigation prior to the envisaged demolition works. Depending on the amount and type (friable/non-friable) of ACMs found, removal might only be allowed by engaging a certified asbestos abatement firm. A register is in place that lists all certified asbestos abatement firms.

With respect to asbestos roofs, a legal ban was recently proposed that would have obliged owners of buildings to remove such roofs by 2024. However, this legislative proposal was defeated in the Dutch Senate in June 2019. Subsequently, an alternative approach was announced by the Minister of Infrastructure and Water Management on 14 October 2019. As part of the envisaged solution, a fund has been established by the Dutch state, provinces, municipalities and banks, aimed at allowing owners of buildings to finance asbestos remediation on favourable terms in order to stimulate the removal of asbestos roofs. So far, however, this fund is much more limited in size than initially expected, and it remains to be seen whether a more all-encompassing approach will be adopted in the near future.

Apart from the above, the production, import, possession or disposal of ACMs has been prohibited under the Asbestos (Product) Decree (Productenbesluit Asbest). The relevant decree also provides labelling and packaging requirements for products that are allowed to contain asbestos. Furthermore, strict rules for worker protection have been laid down in the Working Conditions Decree (Arbeidsomstandighedenbesluit), which also applies to (the prevention of) asbestos-related incidents.

The supervision and enforcement of asbestos-related regulation falls within the authority of either the Human Environment and Transport Inspectorate or the Inspectorate SZW (Inspectie SZW) in the event of worker-related (potential) asbestos contaminations. Non-compliance with the above-mentioned rules and regulations is subject to (administrative) enforcement measures, as well as penalty fines of up to EUR50,000, which may be increased in the repetition of an offence. Criminal prosecution is also possible for wilful violations resulting in, for example, the death of an employee.

In civil law cases, the statute of limitations is extended to a period of 30 years after the moment when the claimant was exposed to ACMs.

Waste legislation is based upon the implementation of the European Waste Framework Directive (2008/98/EG), which is incorporated in the EMA and elaborated in the national waste management plan. This regulatory framework defines when a product is qualified as waste – ie, "any substance or object which the holder discards or intends or is required to discard."

The EMA contains several prohibitions and regulations, such as a ban on the unauthorised discarding of waste and regulations pertaining to handing over, receiving, transporting and collecting hazardous waste and industrial waste. In short, waste may only be transferred by a discharger/producer to a party that is qualified (registered or permitted) to accept and/or transport waste. The Minister, municipalities and provinces can grant exemptions from some of these prohibitions and regulations, if permitted by law.

Finally, the General Environmental Permitting Decree contains a list of activities that are allowed without an environmental permit. If the activity is not included in this list, an environmental permit is required.

In general, the party that disposes of the waste is responsible for the transfer to a qualified person, and for filing (and storing) the required waste transfer forms. If this is not done correctly, enforcement actions can be taken for not disposing of waste in accordance with the law.

The operator of a site or facility that disposes of waste (the producer or importer) has to comply with administrative obligations. The operator of the site or facility needs to specify the following:

  • from which type of business or person he accepts waste, as far as is relevant for the acceptation and control;
  • which requirements he sets for offering waste;
  • how he inspects the waste before receipt (mostly visual); and
  • how waste that deviates in an environmental hygienically relevant way that is usual for the category concerned is treated.

The operator of such site or facility is responsible for complying with these acceptance and control procedures. The form on which this is documented must be kept for five years.

Specific regulations apply to recycling schemes where a producer of products that will undoubtedly lead to waste (glass bottles, plastic bottles, electronics) will have to take further actions (such as imposing a fee on the consumer or attribution to a recycling system).

There is no general obligation to choose a specific type of waste processing (recycling, recovering or re-using) for a producer of waste. However, there are specific product-related regulations that prescribe to participation in a take-back system or recycle scheme – examples include batteries, some electronic appliances, some types of packaging and car tyres.

The EMA states that "unusual events" with "negative consequences" for the environment should be notified as soon as possible to the competent authority (and measurements must be taken to prevent and/or mitigate the negative consequences). A notification as soon as possible is interpreted rather strictly and means somewhere right after any emergency services (such as the fire department) have been alerted. Most authorities have dedicated environmental incident "hotlines".

There is no standard threshold regarding how negative the consequences of an incident should be before the incident should be notified. However, as the requirement to notify unusual events with negative consequences for the environment is interpreted quite strictly by the supervising authorities, it is recommended to adopt the "better safe than sorry" strategy in this respect by also notifying incidents with minor negative effects on the environment.

Information on the causes of the incident, the measures that have been taken and the hazardous substances that have been released should be provided with the notification. The obligation to notify applies to the operator of the facility.

Besides unusual events with negative consequences for the environment, energy efficiency audits should be notified on the basis of the European Energy Efficiency Directive (as implemented in the Netherlands). These audits should generally be carried out once every four years. After such audit has been carried out, an energy audit report should be provided to the competent authority.

Also, in some cases, (larger) facilities have the obligation to file annual environmental reports in accordance with the Pollutant Release and Transfer Register Directive (as implemented in the Netherlands).

In the Netherlands, the Freedom of Information Act (Wet openbaarheid van bestuur – Wob) regulates (in brief) the right to access information from public bodies. The Wob applies to information held by public bodies ("bodies of legal persons established under public law or other persons/legal bodies with some public authority") with respect to information concerning "administrative matters". "Administrative matters" are interpreted broadly in Dutch case law.

In general, the information that is held by public bodies and concerns "administrative matters" will be provided if it is requested by a so-called Wob request, unless an exception as provided for in the Wob applies. These exceptions include that the disclosure of this information would (i) include confidential business and manufacturing data, (ii) infringe the private life of one or more individuals and (iii) result in the disproportionate favouring of certain involved parties.

With respect to environmental information, a specific regime applies that ensures a wider disclosure regime compared to other information concerning administrative matters (following from the Aarhus Convention). Not all exceptions as provided for in the Wob apply to the disclosure of environmental information.

Article 2:391 of the Dutch Civil Code states that corporations should include an analysis concerning their non-financial performance in their annual report, such as their performance regarding the environment. This obligation is further regulated in the Decree on the publication of non-financial information (Besluit bekendmaking niet-financiële informatie).

This Decree states, amongst other things, that legal entities that meet certain conditions (such as having more than 500 employees) are required to publish a non-financial clarification, which includes information on the policy, the applied due care procedures and the results thereof concerning, eg, environmental matters.

If the corporation involved does not have any policies with respect to the environment, it should include a reason for not having such policies in its annual report.

In transactions where shares or assets in real estate and companies are transferred, (vendor) due diligence is usually performed.

For real estate transactions (depending on the deal), both zoning and permit review is usual, focusing on property-related aspects such as zoning compliance, building requirements and fire safety. Depending on the asset or share transfer of the property, a different review might be performed.

For M&A transactions (and, to a lesser extent, finance deals), environmental due diligence is performed on aspects of compliance and permits for health, safety and environment aspects.

Depending on the target (and its environmental activities) and character of the deal (asset or share), several environmental aspects can be reviewed, such as:

  • the presence of and compliance with permits and approvals;
  • the enforcement actions completed, pending or announced;
  • site-related aspects (zoning, soil, asbestos, occupational safety, etc); and
  • production-related aspects (chemicals, product safety, reporting requirements, etc).

A seller is not generally required to disclose any environmental information to a purchaser, although there might be a duty to disclose information that is specifically requested by a potential purchaser. Once a purchaser explicitly indicates it is interested in particular information (eg, relating to the environment), the seller is obliged to provide that information (to a reasonable extent), to prevent the seller from being liable for misinforming the purchaser.

In the Netherlands, several types of taxes are in place in order to meet the objectives as set out in the Dutch climate policy and legislation. These taxes generally aim to discourage the use of (energy) resources.

Taxes on Energy

Users of natural (compressed) gas pay energy tax for every cubic metre of natural (compressed) gas used. Users of electricity pay energy tax for every kWh used. Energy taxes are charged by the energy suppliers, who in turn pay the energy taxes to the tax authorities. It is possible to claim back energy taxes under certain conditions, such as if the natural (compressed) gas or electricity is used to generate electricity.

A tax reduction applies to the natural (compressed) gas or electricity that is necessary to fulfil the basic needs of the user. Furthermore, legal entities and natural persons who generate electricity for their own use by means of solar panels are exempted from the obligation to pay energy tax.

Taxes on Air Pollution

A CO₂ tax or carbon tax will be introduced in the Netherlands on 1 January 2021, whereby all sites that fall under the European Emissions Trading System (EU-ETS) will be subject to a carbon tax. In 2021, this carbon tax will amount to EUR30 per ton minus the EU-ETS price per ton (with a minimum of 0). The amount of EUR30 will be increased annually by EUR 10.56. Therefore, depending on the EU-ETS price, the carbon tax will increase annually. The carbon tax does not apply to certain applications, such as the capture and storage of CO₂.

Taxes on Tap Water

In the Netherlands, taxes apply to the use of tap water. From 1 January 2015, taxes on tap water have only applied on the first 300 cubic metres used. These taxes are charged by the water suppliers, who in turn pay the taxes to the tax authority.

Taxes on Waste

Companies in the Netherlands with a waste incinerator must pay waste taxes for every 1,000 kg of incinerated waste. Companies must report the total amount of incinerated waste to the tax authorities in their yearly tax return declaration.

Flight Taxes

The Dutch government has announced that, if agreements on flight taxes on a European level appear to be unfeasible, a national law introducing flight taxes will be adopted in 2021. The taxes will apply to individual passengers as well as cargo planes. The aim of such taxes is to encourage individuals to make environment-conscious decisions, and to enhance sustainability in the aviation sector by reducing the CO₂ deposition.

Loyens & Loeff

P.O. Box 71170
1008 BD Amsterdam
The Netherlands

+31 20 578 57 85

+31 20 578 58 00

info@loyensloeff.com www.loyensloeff.com
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Trends and Developments


Authors



Loyens & Loeff has an environmental law group that is part of a fully integrated (tax and legal) firm with home markets in the Benelux countries and Switzerland, as well as offices in all the major financial centres, such as London, New York, Paris and Hong Kong. The group advises on the full range of environmental law matters, from the development of new projects and facilities to the restructuring of complex permit situations, and from compliance audits to inspection procedures and litigation that involves the regulatory authorities. The team’s expertise includes EU and other cross-border regulations pertaining to, inter alia, waste, chemicals, emission trade and environmental liabilities. Clients come from both the private and public sectors, reflecting the team’s ability to provide knowledgeable and practical guidance in all environmental law matters.

Sustainable Environment in the Netherlands

The last few years have seen challenging times in the Netherlands for companies in the real estate, energy and industrial sectors. Issues with soil quality, nitrogen deposition and energy transition have required a lot of resilience and effort from the industry. Unfortunately, the outlook for environmental players does not indicate any leniency for these parties, which will have to step up in order to be able to adapt their business and operation to the requirements of government and customers (and the environment). The main trends in the Netherlands in this respect are briefly described below:

  • nitrogen deposition will remain a concern for developments;
  • solar and wind projects will face more community involvement;
  • industrial processes will be scrutinised further; and
  • new legislation on heat and zoning will be introduced.

Nitrogen deposition will remain a concern for developments

When the Dutch highest administrative court ruled in a landmark case on the Dutch nitrogen programme being irreconcilable with the European directive on nature habitats in 2019, the rules on the maximum allowed deposition of nitrogen were substantially tightened. A lot of planned developments of real estate or amendments to industrial operations were shelved because of the uncertainty caused by the nitrogen deposition. Now, a year later, certain emergency measures have been put in place to bring the market into motion a little, but the question of nitrogen deposition remains a hot topic.

When nitrogen is emitted, it can subsequently "fall down" several miles from the source of the emission. This is called the nitrogen deposition. As certain types of nature are (very) sensitive to nitrogen, one of the objectives of the EU directive on nature habitats is to prevent the deterioration of such habitats – called Natura 2000 areas – due to nitrogen, among other factors. In the Netherlands a programme was in place that – in short – balanced a large number of developments that caused nitrogen deposition with developments that mitigated nitrogen deposition. Also, this programme included a threshold value below which no permit would be required for the nitrogen deposition. However, the landmark case in 2019 ruled that this programme (or major parts of it) were irreconcilable with the EU Habitats Directive.

As such, nearly all developments that have a detrimental effect on a Natura 2000 area caused by nitrogen deposition require a permit. Nearly all development projects cause nitrogen, either by truck transport movements, by operating a mobile power unit or by combustion installations, in which case the initiator of that project will have to assess whether the nitrogen emitted will deposit on a Natura 2000 area. As the nitrogen may migrate for miles before deposition, this could easily be the case.

A lot of programmes and projects were halted due to the tightened rules on nitrogen deposition. As a result of this deadlock, the government took emergency measures by adopting new acts to provide for a new threshold that would prevent smaller development projects having to file for a nitrogen deposition permit. Also, in practice, where there is unused emission space in a permit, or where a business terminates (the emitting part of) its business, those terminated deposition rights can be balanced against new emission possibilities.

Therefore, there is now some room to operate for smaller real estate developments or small industrial expansions, but there is still a big focus on the nitrogen deposition of each project. The landmark case was sparked by an environmental organisation, which caused other environmental organisations to scrutinise new developments that may or will cause nitrogen deposition. Nonetheless, it will be valuable to assess at an early stage of a development or expansion whether nitrogen deposition can be a hindering factor.

Solar and wind projects will face more community involvement

In the last couple of years, dozens of wind farms and solar parks have been constructed on land in the Netherlands. These developments are now so numerous that a tipping point has been reached, where the community tolerance has dropped to a low, and communities and neighbours are becoming more and more active against new renewable energy developments in their area. As a reaction, the government intends to require developers of renewable energy projects to include the participation of neighbours and neighbouring communities.

Community activism is not new in the Netherlands (which is one of the most densely populated nations in the EU), but in recent years the objections against large wind farms or solar parks have grown substantially. Almost all permit or zoning plans for developments are brought before the court by neighbours, communities or environmental organisations. At the end of 2019, the national terrorism co-ordination office even qualified the activism in two rural provinces as being close to "terrorism", as threats, intimidation and the destruction of property were used by critics of new wind farms. Although this is obviously not the case with every development of a wind farm or solar park, there is increasing opposition to new wind farms and solar parks amongst neighbours and communities.

At the same time, local governments are increasingly demanding community support for the development of sustainable energy initiatives. For example, a lot of municipalities require the obligatory participation of neighbours, and can mandate that up to 50% of the shares/certificates in a wind farm or solar park are made available for local residents. Some municipalities even require local residents (gathered in an association or foundation, for example) to have a say in the operations of the wind farm or solar park

Although the requirement for an initiator to hand over 50% of its interest to local residents has no basis in administrative law, municipalities do ask for this in return for their enhanced co-operation in the permit application procedure.

Given the above, the development of sustainable energy sources on land in the Netherlands has become more difficult and/or less profitable. This is a development that may last a while, so a solution could be to look elsewhere, to projects where no neighbours are affected, such as solar panels on large roofs or solar parks on water.

Industrial processes are scrutinised

In 2021, a new carbon tax will be introduced in the Netherlands. In order to fulfil its commitment under the Paris Agreement, the Netherlands wants to bring carbon emissions down further, by levying a new tax on carbon emissions.

The carbon tax scheme is linked to the existing EU emissions trade system (EU-ETS), and companies that fall under this EU-ETS also fall under the carbon tax (and some more). The carbon tax in 2121 will be EUR30 per tone of CO₂ emitted, which will then be increased annually by approximately EUR10. The price of one emission right under the EU-ETS can be deducted from this amount. As such, the carbon tax is an add-on to the price for an emission right under the EU-ETS.

Carbon dioxide that is captured and stored is exempted from the carbon tax. If an industrial site captures its emissions and transports it to a site for carbon capture and storage, then no taxes will have to be paid.

The carbon tax is not the only act of scrutiny on industrial processes: from 2030, power plants will be prohibited from using coal, and coal-fired plants will be limited in their generation. The possible closure of one more coal-fired power plant is also envisaged (as an alternative to the production limitation for all coal-fired power plants).

With this increasing focus on the environmental effects of operations, there is an opportunity (and maybe even a requirement) for companies to make the transition to cleaner technologies and energy. Pilots and plants are currently operational for relatively new techniques such as hydrogen or geothermal energy.

New legislation on heat and zoning

In the next two years, two major new acts will probably enter into effect: the Environmental and Planning Act and the Heat Act.

Under the new Environmental and Planning Act, the Municipal council will still adopt zoning plans (which will be called "physical environment plans" – omgevingsplan), based on a structural vision regarding spatial planning (which will be called an "environmental strategy" – omgevingsvisie). The Environment and Planning Act, like the General Environmental Permitting Act, provides for an integrated environmental permit. With the centralisation of several Acts in the new Environment and Planning Act, this environmental permit will integrate even more aspects that require a permit into one (integrated) permit, such as nature conservation, for example.

Additionally, the new Environmental and Planning Act is aimed at facilitating further decentralisation by increasing both the breadth and width of the regulatory authority of local governments regarding a range of environmental topics. As a result, the (legal) effects of the new Act could (in theory) vary quite significantly, depending on how certain municipalities intend to use/experiment with some newly granted room for local decision-making. Generally, however, it is expected that the effects on existing situations will be fairly limited, at least initially.

The Heat Act entered into force in 2014 and regulates the distribution of heat to (small) consumers, which it defines as "persons to whom heat is supplied through a heat network and who have a connection with a maximum capacity of 100 kilowatts (kW)". The Heat Act contains a set of regulations for suppliers of heat to consumers and sets down requirements for the agreement between the supplier and the consumer.

It is anticipated that there will be an extensive overhaul of the Heat Act; in practice, this legislative initiative has become known as the Heat Act 2.0. The purpose of this bill is to speed up the energy transition in light of the Dutch Climate Agreement goals, which are geared towards a 49% greenhouse gas emission reduction by 2030 (compared to 1990). A draft version of the Heat Act 2.0 was made publicly available for consultation in July and August 2020. The Heat Act 2.0 is envisaged to enter into force on 1 January 2022.

Under the Heat Act 2.0, a pivotal role would be set aside for the municipal authorities, which, in short, will become legally obliged to adopt policy documents that map out a strategy for the roll-out of collective heat systems on a "district-by-district basis". Such strategy documents must, inter alia, include the number of residences that will be disconnected from the gas grid and/or the number of residences that will be insulated by 2030. Subsequently, this strategy will have to be translated into formal decisions in which specific heat plots are allocated, determining which residences and buildings must be connected to a collective heat system. In consultation with the Dutch Authority for Consumers & Markets (ACM), a designated heat company will be granted integral responsibility for the installation, operation and maintenance of the collective heat system and the transport and supply of heat within the specified heat plot for a minimum period of 20 years, up to a maximum of 30 years.

Another major change under the Heat Act 2.0 would be that the regulated tariffs for the transport and supply of heat (and cold) will be unlinked from the gas price. Currently, the so-called "not more than otherwise" principle applies, which basically sets off the maximum tariffs for the transport and supply of heat against the price for (heating a home with) natural gas. Under the Heat Act 2.0, this principle would no longer apply, in favour of a system in which the actual costs for operating the collective heat system can be charged to its users. In this regard a tariff scheme will apply.

Loyens & Loeff

P.O. Box 71170
1008 BD Amsterdam
The Netherlands

+31 20 578 57 85

+31 20 578 58 00

info@loyensloeff.com www.loyensloeff.com
Author Business Card

Law and Practice

Authors



Loyens & Loeff has an environmental law group that is part of a fully integrated (tax and legal) firm with home markets in the Benelux countries and Switzerland, as well as offices in all the major financial centres, such as London, New York, Paris and Hong Kong. The group advises on the full range of environmental law matters, from the development of new projects and facilities to the restructuring of complex permit situations, and from compliance audits to inspection procedures and litigation that involves the regulatory authorities. The team’s expertise includes EU and other cross-border regulations pertaining to, inter alia, waste, chemicals, emission trade and environmental liabilities. Clients come from both the private and public sectors, reflecting the team’s ability to provide knowledgeable and practical guidance in all environmental law matters.

Trends and Development

Authors



Loyens & Loeff has an environmental law group that is part of a fully integrated (tax and legal) firm with home markets in the Benelux countries and Switzerland, as well as offices in all the major financial centres, such as London, New York, Paris and Hong Kong. The group advises on the full range of environmental law matters, from the development of new projects and facilities to the restructuring of complex permit situations, and from compliance audits to inspection procedures and litigation that involves the regulatory authorities. The team’s expertise includes EU and other cross-border regulations pertaining to, inter alia, waste, chemicals, emission trade and environmental liabilities. Clients come from both the private and public sectors, reflecting the team’s ability to provide knowledgeable and practical guidance in all environmental law matters.

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