European Court of Justice: permits for Dutch coal-fired power stations not at risk

In answer to questions from the Dutch Council of State regarding permits for the construction and operation of three new coal-fired power stations located in the Eemsmond (operated by RWE) and Rotterdam (operated by Electrabel and E.ON), the European Court of Justice announced today (26th of May 2011) that the arguments brought forward by environmental groups do not stand in the way of granting these permits. Dutch environmental groups had argued that the Netherlands was obliged to take into account emission ceilings for atmospheric pollutants in deciding on an application for an environmental permit. Those emission ceilings, for the protection of human health, fall under the National Emissions Ceiling (NEC) Directive that lays down for the Netherlands and for the other EU member states binding maximum emission levels for certain atmospheric pollutants. Because some of these ceilings at the end of 2010 would have been exceeded by the Netherlands, no new permits leading to even more pollution should be allowed, the environmental groups argued.

In her Opinion to the European Court issued on the 16 December 2010, Advocate General (AG) Kokott advised the Court to side with the environmental groups (see EEL News Service 2011/1). According to the AG, the emission ceilings should be taken into account when granting such a permit, pursuant to the general principle of interpretation in conformity with the Directive. This would mean that the permit would have to be denied if it would lead to (a threat of) exceeding the NEC emission ceilings. In the Dutch press, after this opinion, it was mentioned that the permits could not be granted since the Opinions of advocate generals are usually followed by the Court. This is indeed often the case, but not always. In the case of Ms. Kokott, it happens regularly that the Court chooses a different route. This was foreseeable in this instance as well. In my annotation to the Opinion[1], I already doubted whether the Court would agree with Ms. Kokott that emission ceilings can stand in the way of granting permits.

The emission ceilings do not stand in the way of granting individual permits, according to the European Court. The Court can however demand that a Member Statemust comply with the obligation arising from the NEC Directive to adopt, within the framework of national programmes, appropriate and coherent policies and measures capable of reducing, as a whole, emissions of those pollutants to amounts not exceeding the ceilings. The programmes drawn up for those purposes must be made available to the public by means of clear, comprehensible and easily accessible information. Whether the Netherlands meets these obligations is questionable. New court cases can thus be expected.

Court of Justice EU 26 May 2011, Joined cases C-165/09 tot en met C-167/09, Stichting Natuur en Milieu a.o.

[1]  Jurisprudentie milieurecht nr. 4 of 22 April 2011, case nr. 2011/38.

Environmental NGOs to be allowed access to courts

This case concerns a permit for the construction and operation of a coal-fired power station in Lünen, Germany, eight kilometres away from several protected Habitats areas. A preliminary decision (stating that there were no legal objections to the project) and a partial permit were granted by the German local authorities. These measures were challenged by the Nordrhein-Westfalen branch of Friends of the Earth (FoE), an environmental NGO recognized under German national law. FoE claimed that the measures violated Article 6(3) Habitats Directive because the environmental impact assessment of the project at issue did not show that it was unlikely that the power station would have a significant effect on the protected nature areas.

The NGO did not have legal standing at the German administrative court on the basis of domestic law. German law allows only for a right of action if the administrative measure affects the claimant´s rights, that is to say his individual public law rights. The German norms that FoE relies upon do not confer such rights on individuals. The German court decided to ask for a preliminary ruling by the European Court of Justice (ECJ) on the matter.

The ECJ explained that, even where domestic law prohibits this, such an NGO must nevertheless be able to challenge projects likely to have a significant effect on the environment. The German procedural laws run counter to the objective of ‘wide access to justice’ as laid down in the 1998 Aarhus Convention, and the Environmental Impact Assessment (EIA) Directive (85/337/EEC) as amended in 2003 to implement the Aarhus Convention. Special rights are afforded in the EIA Directive to NGOs promoting environmental protection. They are deemed to automatically have sufficient interest and rights capable of being impaired (Art. 10a). The relevant rights that they are deemed to have must necessarily include EU environmental law incorporated into national legislation as well as EU environmental law having direct effect. In this case the Habitats Directive and national laws implementing it were alleged to have been infringed which should provide sufficient grounds for standing before national courts.

The ECJ ruling means a major step forward for environmental NGOs where the ´access to justice´ pillar of the Aarhus Convention is concerned. Member States cannot deprive such organizations of the opportunity of playing the role granted to them in the EIA Directive 85/337 and by the Aarhus Convention.

* Case C-115/09 Trianel Kohlekraftwerk Lünen 12/05/2011