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.