The Role of the Judiciary in Environmental Governance in the Netherlands

THE ROLE OF THE JUDICIARY IN ENVIRONMENTAL GOVERNANCE: COMPARATIVE PERSPECTIVES, Louis Kotze, Alexander Paterson, eds., Kluwer Law International, 2008

19 Pages Posted: 28 Oct 2008

Date Written: December 28, 2007

Abstract

Until 2005, there existed a so-called actio popularis in Dutch environmental law procedures. These liberal standing rules were abolished following a fierce political debate in which the prevailing argument was that NGOs and local citizens had become to powerful and were obstructing government decisions that were needed in order to stimulate the economy. Now, all persons that are able to show an interest can address an administrative court in proceedings against almost all environmental decisions, so for instance all permits on the basis of environmental law, nature protection law, and construction law, environmental ordinances, and decisions on administrative enforcement. Legislative acts (Acts by Parliament and Orders in Council), however, cannot be tested in court in the Netherlands. Courts do not have the power to interfere with the legislature as a consequence of the doctrine of the separation of powers as laid down in the Dutch Constitution. From an environmental governance point of view, this can be criticised. Environmental NGOs are considered to have an interest in most environmental decisions, which is in line with the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters and with EU law implementing this international convention. Dutch Courts are quite liberal when deciding whether the applicant of the case has an interest in the matter or not.

More in general, the Dutch court system can be characterised as efficient, granting sufficient opportunities to business corporations, NGOs, and individual citizens to bring environmental cases before a court of justice. When comparing absolute number of environmental court cases in the EU member states, Dutch courts judge much more environmental cases than in all other countries in the EU.

Courts in the Netherlands are often criticised for their decisions in environmental cases. Business organisations and local authorities often feel that courts go too far in testing government decisions, whereas NGOs and local residents think courts test decisions too marginally, leaving too much room for the authorities. The political discussions leading to the abolishment of the actio popularis show that a liberal system of access to justice no longer is a Dutch trademark. Hence, courts are trying to balance between these opposite positions. They do test government decisions rather marginally, and will probably continue to do so. This is in line with Dutch legal and administrative culture and is to be regarded as a positive characteristic. Negotiations and talks between the various actors involved (often labelled as 'cooperative governance') are firmly embedded in daily legal and administrative practices. Courts respect these practices.

However, courts do test the legality of the decisions reached by the authorities quite strictly. Since there exists EU law, setting legal boundaries for national environmental decisions, on practically every environmental topic, such a test often results in testing decisions against EU law. Hence, courts - indirectly - promote the implementation of EU environmental law in legal practice. They thus help develop a level playing field for businesses and a high level of protection of the environment in the EU.

Keywords: Aarhus convention, actio popularis, NGOs, legal standing

Suggested Citation

Verschuuren, Jonathan, The Role of the Judiciary in Environmental Governance in the Netherlands (December 28, 2007). THE ROLE OF THE JUDICIARY IN ENVIRONMENTAL GOVERNANCE: COMPARATIVE PERSPECTIVES, Louis Kotze, Alexander Paterson, eds., Kluwer Law International, 2008, Available at SSRN: https://ssrn.com/abstract=1291263

Jonathan Verschuuren (Contact Author)

Tilburg Law School ( email )

Tilburg, 5000 LE
Netherlands

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