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  • Public law
  • 11-01-2018

Although the District Court of The Hague has conceded that the government does not at present meet the European limit values throughout the Netherlands and will not meet those values in 2020 either, therefore being in violation of the air quality rules, the court nevertheless held in its judgment of 27 December 2017 that the government is not at fault for this situation. That ruling was a major blow to Friends of the Earth Netherlands and other claimants, who deemed that the government violated human health rights ensuing from articles 2, 3 and 8 of the European Convention on Human Rights (ECHR) and/or article 6 of the International Covenant on Civil and Political Rights (ICCPR) and/or article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Background: the preceding preliminary relief proceedings
In its judgment dated 7 September 2017 rendered in the preliminary relief proceedings, the District Court of The Hague instructed the government to speed up the process of improving air quality in the Netherlands. Friends of the Earth Netherlands had instituted those preliminary relief proceedings as the proceedings on the merits were progressing too slowly and it sought measures to combat situations where air quality standards are exceeded and can have a negative impact on public health.

The parties agreed that the NO2 (nitrogen dioxide) and PM10 (particulate matter) limit values were being exceeded in some places in the Netherlands, whereas pursuant to Directive 2008/50/EC on ambient air quality and cleaner air for Europe, implemented in Title 5.2 of the Dutch Environmental Management Act (Wet milieubeheer), the limit values of those substances (after having obtained derogation) should have been met on 1 January 2015 and 11 June 2011, respectively. Pursuant to article 23 of that Directive, the government is obliged to adopt an air quality plan that sets out appropriate measures to ensure that the exceedance period is kept as short as possible. The preliminary relief court held that an enumeration of general and national measures in the National Air Quality Cooperation Programme (NSL) was insufficient for that purpose and that it did not follow from the programme that the exceedances would be eliminated in the shortest period possible.

The judgment rendered in the preliminary relief proceedings instructed the government to identify all places in the Netherlands where limit values were being exceeded or were expected to be exceeded and to subsequently adopt an air quality plan in accordance with the requirements imposed by the Directive. In addition, the preliminary relief court forbade the government to take measures or to make arrangements for measures to be taken which in the opinion of the National Institute of Public Health and Environmental Protection (RIVM) are statistically expected to result in the continued or new exceedance of the limit values. The latter point, i.e. the potentially far-reaching prohibition to take measures was reason for the government to appeal that judgment, while the proceedings on the merits were also still underway. The District Court of The Hague rendered its judgment in the proceedings on the merits on Wednesday, 27 December 2017.

Proceedings on the merits: complex issue and inadequate proof
The scope of the claims of Friends or the Earth Netherlands and the other claimants was more extensive in the proceedings on the merits. The claimants were of the opinion that the obligations arising from the Directive as implemented in Title 5.2 of the Environmental Management Act were insufficient; achieving the target values for PM10 as well as PM2,5 (both particulate matter) set by the World Health Organization (WHO), which are more stringent than the European limit values, was necessary to effectively protect public health. They were furthermore of the opinion that a security margin (an additional margin under the limit values which are the standard norm) had to be observed in terms of implementation.

The court hearing the case on the merits ruled otherwise, stating that the government was already taking measures to improve air quality, was working towards achieving the WHO’s target values and was on the right path to effectively improving air quality, as a result of which the number of exceedances had been cut back. The government did not have to meet the WHO's target values at present or in the near future. The court hearing the case on the merits furthermore ruled that the Directive did not prescribe the obligation to observe a stricter safety margin. Therefore, the government did not act unlawfully by not adding such a precautionary margin to the standard calculation methods used to determine the values present. In addition, the court ruled that Friends of the Earth Netherlands and the co-claimants should have provided more concrete and substantiated proof that the measures were below par, that they did not satisfy the requirements prescribed by the Directive and that the government had failed to fulfil its obligation to keep the exceedance period as short as possible. The court hearing the case on the merits held that even if the exceedance period lasted long and all requirements were not yet met by 2020, it could still be the case that the government kept the exceedance period as short as possible since, in the court's opinion, tackling the persistent problem areas in improving air quality is a very complex task. Not only is it an established fact that it involves a vast variety of different and opposing interests of a diverse nature, substance and weight, but the improvement plans can also yield what are commonly known as 'perverse effects'. This means, for example, that moving the emissions by re-routing traffic could, on balance, result in a deterioration of the urban air quality. The court furthermore held that the envisaged improvements did not occur overnight, but that the matter concerned a long-term process.

The District Court of The Hague dismissed all claims and ruled in favour of the government, whose arguments included that "the bottlenecks in city centres are generally necessary for the accessibility of city centres".

Climate case Urgenda
In the past, climate case Urgenda proved that it can be effective for environmental organisations to apply to the civil court to get the government to take measures. The 2015 judgment imposed the obligation on the government to take more action to achieve the internationally agreed climate targets. To a large extent, that case was based on conventions that were insufficiently specific, meaning that citizens could not easily derive rights from them. As is evident from the judgment, they were able to do so after all.

Conversely, the air quality case brought by Friends of the Earth Netherlands was in part based on firm, set standards. Nevertheless, the court did not rule in favour of Friends of the Earth Netherlands. Given the climate case Urgenda and the European standards that had been violated, that is surprising.

Next step
Friends of the Earth Netherlands and other claimants can appeal this judgment. While they are likely to make use of this opportunity, this has not yet been officially announced. The fact that the judgment of the District Court of The Hague follows a line of reasoning that differs from the reasoning of other European courts in similar cases means that the final outcome is uncertain, since courts in the UK, Belgium and recently in the Czech Republic opined the exact opposite, namely that national governments must be called to order in the event of these types of violations. The situation in Germany, where in the summer of 2017 the court prohibited diesel cars in Stuttgart's city centre starting in 2018 on account that "people's health prevails over the right to own property and the freedom of car owners” also seemed to be support for Friends of the Earth Netherlands' position. However, it is highly doubtful (as is evident from the interim judgment) whether that series of judgments is a good indicator for forecasting how the matter of air quality will be dealt with here in the Netherlands.

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