Background and request for advice
In recent years, court cases about what should and should not be permitted in our living environment have attracted increasing attention. Such cases are often initiated by members of the public, companies, public authorities, and special-interest organisations such as Urgenda, who are concerned, for example, about the consequences of emissions and discharges from industrial and agricultural enterprises. They turn to the courts to ensure better enforcement of rules to protect nature and the environment. Taking the matter to court is often a response to poor enforcement of environmental permits by the authorities or failure to update them in good time.
How should we interpret 'juridification' as regards the living environment? Which aspects are genuinely problematic and which are not? And what is needed in order to address the problematic aspects? These questions are the subject of this advisory report.
Explanation
The Rli notes that the law plays a prominent role as regards the living environment, but it does not regard that as a problem. After all, different interests regularly clash within the living environment, and to deal with such conflicts properly in our democratic state subject to the rule of law, we have legislation and regulations in place that can be invoked by members of the public, businesses, advocacy groups, and also public authorities. Nevertheless, it does see a number of problematic aspects where applying the law is concerned. The fact is that safeguarding the law and following it through have become too one-sidedly the purview of the courts. But safeguarding the rule of law and respecting the legal rules are just as much a task for the legislature (the Government and Parliament) and the executive (the Government). The Rli advocates rebalancing the way the roles are divided between the legislative, executive, and judicial powers.
Greater attention must be paid to the quality of legislation and regulations 'at the front end' of the legislative process. An Adviser General should therefore be added to the Advisory Division of the Council of State. He or she would have the task of indicating whether a parliamentary bill is in line with the Dutch Constitution, with EU law, and with the European Convention on Human Rights (ECHR). Establishing the post of Advisor General can be accomplished in the short term without any constitutional amendment being required, unlike setting up a Constitutional Court as envisaged in the new Cabinet’s Framework Coalition Agreement 2024–2028. The quality of the judicial advice provided by the ministerial departments that draft legislation also needs to be enhanced.
Politicians – i.e. our representatives in Parliament, provincial and municipal councils, and the boards of the water authorities – also have a major responsibility to consider the legal consequences 'at the front end' of legislation and regulations. Particularly when rules are involved that arise from EU environmental law or international conventions, politicians appear time and again to disregard the risk of judicial disputes. The Rli recommends that national implementation of EU and international legislation, rules, and conventions should not be limited to merely complying with the minimum required. This will reduce the likelihood that members of the public or special-interest groups will take the matter to court to demand – often successfully – that the authorities comply better with the EU and/or international rules.
What can government do to address the problematic aspects of juridification regarding the living environment? Briefly, our recommendations to the Dutch government are as follows:
- Enhance the judicial function within the ministerial departments that draft legislation.
- Ensure better review of national policy on the living environment against the Constitution, EU directives, and international conventions. For this purpose, an Adviser General should be appointed to the Advisory Division of the Council of State.
- When transposing EU directives into national legislation and regulations, adopt a robust interpretation that is not limited to merely complying with the minimum required.
- Give greater priority to timely updating of permits and to enforcing them.
- Determine which disputes regarding living environment issues can be adjudicated by a single court, without the option of appeal.
Information
For more information about the advisory report, please contact Folmer de Haan (project leader): f.w.dehaan@rli.nl or +31 (0)6 4615 2496.