Opinion on Milieudefensie case in newspaper NRC

The Dutch newspaper NRC Handelsblad published an opinion article written by Laura Burgers, arguing that the judge rendered a democratically legitimate judgment in the Milieudefensie case that was already discussed at this blogpost.

See: Stop behalve luchtvervuiling ook debatvervuiling.

Dutch NGO wins summary proceedings against Dutch State on air quality

A trend of European case-law on air quality

The 7^th of September, the Dutch NGO Milieudefensie won summary proceedings against the Dutch State on air quality. This case fits in a true trend following from the European Union Air Quality Directive 2008/50/EC, which regulates the maximum tolerable levels of pollution in the air caused by inter alia nitrogen and particulate matter. In the UK, the NGO Clientearth has litigated on failing air policy all the way up to the CJEU and back to the UK High Court again, winning every case against the government. In France, Les amis de la terre France obtained a similar result last July before the Conseil d’État. And only one day before the Dutch judgment, the German NGO Deutsche Umwelthilfe reached a comparable outcome before the Verwaltungsgericht Stuttgart. In this blogpost, I focus on the Dutch case.

Milieudefensie’s case in the Netherlands

As reported on this blogpost, in August 2016, the Dutch NGO Milieudefensie started tort proceedings against the Dutch State because Dutch policy on air quality would be insufficient. Interestingly, this claim did not only rely on the legally binding European directive on air quality, but also on soft law WHO guidelines in a complex private law construction echoing the reasoning of the controversial Dutch Urgenda case.

To speed up the proceedings, however, this summer Milieudefensie started summary proceedings (“kort geding”) concerning only the violation of the European directive. The 7^th of September 2017, the judge decided in Milieudefensie’s favour: The Dutch State must, as of now, do everything possible to comply with the European norms as soon as possible. A decision on the more ambitious WHO guidelines will follow after the substantive proceedings (“bodemprocedure”) to be held at the 14^th of November 2017.

Admissibility

In her judgment, the judge Mrs. Groeneveld-Stubbe rejects the State’s argument that the claim would be inadmissible because it would rather be an issue for administrative law proceedings rather than private law proceedings. In Dutch law, only individual cases can lead to administrative review, whereas this dispute is about a national plan on air quality, she reasons. Private law proceedings are the only option (§4.2).

Furthermore, the judge finds that the case is sufficiently pressing to justify a judgment in summary proceedings – the earlier measures are taken to improve air quality, the earlier these measures are likely to have effect (§4.4). Neither is the case too complex for summary proceedings, because both parties agree on most of the facts (§4.5).

The air quality plan

The State recognizes that in certain areas, the critical levels demanded by EU Directive 2008/50/EC are surpassed and that required deadlines have been missed, since these were fixed in 2015 (for nitrogen) and 2011 (for particulate matter), respectively (§4.6). The judge does not agree with the State that it lacks the competences to solve local issues, because it was the State itself that choose to decentralize its duty to guarantee air quality (§4.7). Furthermore, the judge deems irrelevant the State’s observation that Dutch air quality is better than before; after all, what matters is not the comparison with earlier times, but the comparison of Dutch air quality with the quality demanded by the Directive (§4.8). 

The judge agrees with Milieudefensie that the Dutch “Nationaal Samenwerkingplan Luchtkwaliteit” (national cooperation plan on air quality) does not comply with the Directive: The Directive requires an air quality plan to keep exceedance periods ‘as short as possible’, which cannot be said with certainty of the Dutch plan (§4.11). Furthermore, the Dutch plan lacks detailed analyses of problem situations, demanded by Annex XV of the Directive (§4.12). 

Judgment

For these reasons, the judge orders the State to do everything possible, within two weeks after the judgment, to make its air quality plan comply with the Directive. Which measures the air quality plan should contain, is for the Dutch State to decide (§4.13). The judge does not agree with Milieudefensie that critical levels should per se be met within 2018 – she cannot say with certainty whether this time-frame would be the ‘shortest possible’, since she does not know yet which measures the State will adopt (§4.14). 

She does however agree with Milieudefensie that the State must immediately begin to identify the locations where exceedances take place – such is necessary to come to a sound air quality plan (§4.15). Measures can only be taken after the plan is made in detail, not, as Milieudefensie asked, immediately after the identification of these locations (§4.16). 

Moreover, the judge follows Milieudefensie in forbidding the State to take measures that are expected by the RIVM (the Dutch national institute for public health and the environment) to statistically contribute to new exceedances, since this is already required by the EU Directive and the national environmental statute (“Wet Milieubeheer”). The State tried to invoke Article 6:168 of the Dutch Civil Code, which gives the judge the possibility not to forbid torts by the State in so far as they should be allowed because of imperative societal interests. The judge does however not follow this argument, since the State did not pinpoint which measures would be of imperative societal interest.

What’s next?

Secretary of State Sharon Dijksma has reportedly announced to immediately act upon the judgement.[1] The judgement is likely to pre-empt plans of the government to raise the maximum speed on highways - unless, of course, the government comes with a plan effective enough to compensate for the extra pollution caused by faster riding traffic. Thus, the outcome of the summary proceedings can be called significant. For those interested in judicial law-making in European private law, the substantive proceedings of Milieudefensie’s claim will be truly exciting. There, the Court will decide whether the Dutch State indeed commits a general tort under the doctrine of hazardous negligence (“gevaarzetting”) by not doing even more against air pollution than required by the European Directive, endangering its citizens’ health, as argued by the NGO.  

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The judgment's ECLI number is ECLI:NL:RBDHA:2017:10171

[1] Marcia Nieuwenhuis ‘Kabinet versnelt plannen tegen luchtvervuiling: 'Hoop voor longpatiënten'’ Algemeen Dagblad 7 September 2017

NGO Milieudefensie starts tort proceedings against Dutch State for bad policy on air quality

New tort case against Dutch State   
1 August 2016, the Dutch environmental NGO Milieudefensie initiated tort proceedings against the Dutch State because the Dutch State’s air quality policy would be insufficient. The Dutch State does not reach EU’s norms on air quality, let alone the even more stringent international norms formulated by the World Health Organization. Hard science reveals the causal link between air pollution and earlier deaths of people. The rights to health and to life are fundamental human rights. And, according to Milieudefensie, it is easy to improve air quality by taking some simple measures – for instance, by lowering the maximum speed limit on highways. In short, the Dutch State unnecessarily endangers the lives of its citizens and therefore violates its duty of care not to create a dangerous situation (“gevaarzetting”). The Dutch private law Court should therefore order the State to change its air quality policy, says Milieudefensie.

Echo of Urgenda case?          
This case reminds us of the Urgenda case decided somewhat more than a year ago. In the Urgenda case, the Court of First Instance in The Hague ordered the Dutch State to increase its CO2 reduction standards to mitigate climate change. It did so on the same tort-basis as invoked by Milieudefensie: the State did not reach its duty of care not to create a dangerous situation, leading to foreseeable damage, while such can relatively easily be prevented. The Court thereby gave effect to international and European climate agreements, reasoning that these shape the tort-based duty of care – even though these agreements are otherwise not directly applicable in the Dutch courtrooms.

Trias Politica concerns           
The Urgenda case led to a lot of controversy. Many commentators found the decision unacceptable in light of the trias politica ideal. This ideal (also known as the separation of powers doctrine) dictates that whereas the legislature may create the law, the judiciary should only apply the law. By ordering the State to change its climate change policy, the Court in Urgenda would have exceeded its discretion and entered the the other branches of government's realm of powers. Based on this argument, the Dutch State has filed an appeal in the Urgenda case.

The Milieudefensie case immediately met the same critique in popular media.[1] Apart from the question whether the critique is just with respect to the Urgenda case, it is certainly doubtful that it is with respect to this new case. That is, the European directive 2008/50/EC, invoked by Milieudefensie, is part and parcel of positive law in the Netherlands. By holding the Dutch State to its obligations flowing from this directive, the Court would do no more than applying existing law – even though this law has been made by the EU legislature rather than the Dutch legislature.

A substantive private law duty of care         
Still it remains to be seen whether the Court will follow Milieudefensie’s suggestion, to use this directive to give substance to the duty of care of the Dutch State, a duty that follows from Dutch tort law. And even more passionate is the question whether it will use the legally non-binding WHO guidelines as well, and to what extent it will rely on the fundamental rights invoked by Milieudefensie. To do so would fit the ongoing trend of the constitutionalization of private law in Europe. On the other hand, it is very well possible that the Dutch Court of Appeal will quash the Urgenda decision invoked as a precedent by Milieudefensie, which would lower Milieudefensie’s chances to success.

Damage
But even if the Urgenda decision remains intact – thus the possibility to color duties of care with non-binding or non-directly applicable international and European law – even then it is not sure that the Court in the Milieudefensie case will order the State to change its policy like it did in the Urgenda case. That is, in Dutch tort law there has to be a serious amount of damage to establish a tort. In Urgenda, there was consensus between the parties about the hazardous and serious consequences of climate change. Milieudefensie claims that people on average can live 9-13 months longer if air quality in the Netherlands is properly improved. Because this statement is based on scientific information issued by a governmental agency of the Netherlands, it is unlikely that the Dutch State will contradict it in courtroom. However, whether these statistics will also be considered tortuous ‘damage’ is not necessarily evident, given that policy – especially policy related to traffic situations – involves the acceptance of statistical chances to more or earlier deaths of people.

PhD research Laura Burgers

The subject of my PhD research is the democratic legitimacy of judicial law-making in European private law, with environmental liability as a case-study. In this project, I use political philosophy on deliberative democracy as a normative framework to assess the democratic legitimacy of judicial decisions on environmental liability in European private law.  In another blogpost, I will reveal more about this normative framework.

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[1] Albert van der Wijk ‘Verontrustende trend’ Volkskrant 3 August 2016; ‘Milieudefensie gelooft niet in democratie’ De Telegraaf 3 August 2016