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  • Public law
  • 21-08-2017

From now on, the legal terms "environmental emissions" and "information on environmental emissions" must be interpreted more broadly than in the past. On 16 August 2017 the Administrative Jurisdiction Division of the Council of State ruled in favour of Greenpeace in its protracted dispute with the province of Groningen. The dispute concerns Greenpeace's efforts to obtain certain documents under the Government Information (Public Access) Act (Wet openbaarheid van bestuur). The Administrative Jurisdiction Division had postponed its decision in this case until the EU Court of Justice (ECJ) handed down its judgments in Bayer CropScience / Stichting De Bijenstichting and Commission / ACC. Based on those judgments, the Administrative Jurisdiction Division has now held that the term "information on environmental emissions" is not limited to information on actual emissions but can also include information on the effects of emissions on the environment and "information that will enable the public to check whether the assessment of actual or foreseeable emissions […] is correct". This interpretation substantially expands the scope of these terms.

Information on emissions

Information on environmental emissions has a special position in EU legislation and must, if possible, be accessible to the public. This requirement derives from the Aarhus Convention (i.e. the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters). Invoking the Government Information (Public Access) Act, Greenpeace has since 2011 been seeking access to more than 1,700 documents relating to the permit granted in that year for the construction of two coal-fired power stations in Eemshaven. Greenpeace aims to prove that the provincial authorities were not neutral when assessing the permit applications but favoured the energy companies. 

Based on the ECJ's judgments in the cases referred to above, the Administrative Jurisdiction Division concluded  that the provincial authorities had interpreted the concept of "information on emissions" too narrowly, even though their interpretation was in line with the Division's earlier case law. In that sense, the Administrative Jurisdiction Division has changed course, following the ECJ's lead. This means that eight or so of the documents withheld by the the province of Groningen indeed contain information on emissions.

Battle not yet over

Nevertheless, the Administrative Jurisdiction Division's judgment does not automatically mean that the eight documents must be turned over. Another ground for denying access - the interest in maintaining the secrecy of "personal viewpoints with regard to policy" - can weigh more heavily than the public interest in accessibility in this specific case. Because the provincial authorities have not yet balanced these two interests (as there was no need for this), they must now do so for the eight documents. Greenpeace can, if necessary, then lodge an appeal against the Administrative Jurisdiction Division's decision. We will follow future developments in this matter with interest.

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