17 September 2020

No ticking time-bomb under Dutch wind farms

+ 2 other experts
A recent judgment of the European Court of Justice in a Belgian case has prompted suggestions that all Dutch windfarms are illegal due to violations of EU law. Time for an overview of the truths and untruths about the impact of this case law for the Netherlands: is there truly a "time bomb" ticking under the Dutch wind farms? We're not convinced.

Background: the obligation to carry out an environmental impact assessment

Environmental assessments ensure that environmental implications of decisions are taken into account during the decision making process. They also make sure that the information is available during the preparatory phase: a critical moment in time when decisions can still be mitigated to deal with potential environmental impact. The obligation to carry out an environmental impact assessment ("EIA", in Dutch: "milieu-effectrapportage") is rooted in EU law. Identifying the decisions that are subject to such an assessment is crucial. European Union law stipulates that plans or programmes must undergo an EIA if they
  • are likely to have significant environmental effects
  • are prepared and adopted by an authority at the national, regional or local level
  • are required by legislative, regulatory or administrative provisions
  • are prepared for a specific sector (such as energy)
  • set a framework for future development consent of projects
This obligation led to several cases before the ECJ. Referring national courts wanted to know if a certain decision or a set of decisions needed to be considered "plans or programmes" falling within the scope of the EIA-obligation. The ECJ's recent judgment concerned two Flemish decisions and is, for now, the last in this line of cases.

The issue

Flanders regulates wind farms on the basis of two key decisions: 1. The Vlarem II Order This Flemish government order contains general and sectoral environmental conditions concerning: (a) the nuisances and risks to which certain installations and activities can give rise, and (b) the compensation for any damage to the environment by their exploitation. One of the framework's sections applies to "Installations for the generation of electricity by means of wind turbines’ and includes 'provisions regarding the shadow cast by blades (limitation of the stroboscopic effects caused by that shade), the safety of wind turbines (presence of certain detection systems and an automatic stop) and noise (execution of noise measurements)." 2. The 2006 Circular This Flemish Circular lists several elements that should/must be taken into consideration when deciding to install a wind turbine, including grouping, land use, habitat, agriculture, industrial land, port, sport, and leisure zones, countryside, noise impact, shadow flicker, safety, nature, environmental impact assessment, and aviation. Both of these decisions have not been subject to an EIA, as the Flemish authorities did not think they met the criteria of "plans and programmes". The case before the ECJ boils down to the question of whether this view is correct and, if not, what the consequences should be.

The court's decision

The court decided that both decisions fall within the scope of "plans and programmes". It did not follow the Flemish line of reasoning, namely that the decisions should not be regarded as plans because these acts 'do not provide a sufficiently complete framework to be regarded as a coherent regime for the installation of wind turbines projects.' In fact, the court confirmed its earlier d'Oultremont judgment on the Wallonian framework for wind farms. The ECJ's ruling begs the question: how does this finding impact current procedures and permits that have already been granted? The court held that a national court may maintain the effects of the Vlarem II Order and the 2006 Circular (and consent) "only if the national law permits it to do so in the proceedings before it and if the annulment of that consent would be likely to have significant implications for the electricity supply of the whole of the Member State concerned, and only for the period of time strictly necessary to remedy that illegality. It is for the referring court, if necessary, to carry out that assessment in the case in the main proceedings." In this respect the court also confirmed the d'Oultremont- judgment: in principle the competent authorities should take all appropriate measures to remedy the violation, including, if necessary, annulling plans and revoking permits.

The reasoning of the court

"Plans and programmes" First, the court sets out that a broad interpretation of plans and programmes is necessary in order to satisfy the objective of European legislation. The general nature of the measures (legislative, regulatory or administrative or even policy) does not prevent it from being a "plan or programme". Second, decisions amending this type of measures may also fall within the scope of "plans and programmes". In this case the Circular – being soft law – created the possibility of being exempted from the regulatory framework (Vlarem II), which brings the measure within the scope of European legislation. Third, as the court has declared in earlier case law, the "to some extent abstract"' character of a national measure when it "pursues an objective of transforming an existing geographical zone" does not 'prevent it' from being a plan or programme. Plans and programmes whose adoption is regulated by national legislative or regulatory provisions, which determine the authorities competent to adopt them and the procedure for preparing them, must be regarded as plans within the meaning of the Directive. The court concludes that both the Order and the Circular may be considered as "plan or programme". The key question remains: how does one determine if one of the aforementioned plans "have significant effects" on the environment and, consequently, should they be subject to an EIA? The court reiterates that this applies to plans that (a) are prepared for certain sectors, and (b) set the framework for future development consent of projects (which are listed in Annexes I and II to Directive 2011/92). In fact, the court has had to clarify the question: what does "set the framework" mean? The court looks to earlier case law:
  1. "framework" should be interpreted as an autonomous concept: it is not reserved only for legislative acts but also comprises binding policy documents (provisions of purely indicative value do not fall within the scope);
  2. "framework" should not be interpreted in a quantitative way (meaning a complete or exhaustive set) but in a qualitative way. This relates "to any measure which establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects that are likely to have significant effects on the environment."
If not, member states could easily circumvent the obligations of EIA and reduce the effect of the directive. The court concludes that the Order and the Circular "constitute a framework, which is admittedly non-exhaustive, but which is sufficiently significant for the determination of the conditions for consent to be granted for the installation in the proposed geographic zone of wind farms whose environmental impact is undeniable." It is worth recalling in that regard that, in paragraph 50 of the judgment of 27 October 2016, D’Oultremont and Others (C-290/15, EU:C:2016:816), the court "held that a measure that set out standards, comparable to those laid down in the Order and the Circular of 2006, as regards the installation and operation of wind turbines, had a sufficiently significant importance and scope in the determination of the conditions applicable to the sector concerned and the choices, in particular those related to the environment, laid down through those standards, are designed to determine the conditions under which actual projects for the installation and operation of wind turbine sites might be authorised in the future." The court concludes that both decisions regarding the installation and operation of wind turbines, including measures on shadow flicker, safety, and noise level standards, fall within the concept of "plans and programmes" and are subject to an EIA. Consequences In practice, the key question is how the ECJ's findings impact decisions based on the Order and Circular, in light of the legal certainty required for permits and procedures. The referring court in this case therefore asked under which conditions it would be possible to maintain, for some time, the effects of the Order and Circular and of consent already given. Provisions regulating the consequences of infringing the procedural provisions are absent in EU law regulating EIA. It is therefore for member states to take all general and particular measures necessary, within the sphere of their competence. The court repeats that, under the principle of sincere cooperation provided for in Article 4(3), TEU national authorities are required "to eliminate the unlawful consequences of breaches of EU law by taking all necessary measures", within the sphere of their competence, to remedy the failure to carry out an EIA. According to the court, this may entail measures for suspension or annulment of the plan or programme. The same holds true for annulling disputed consent or revoking or suspending already granted consents or permits which have been granted on the basis of the plan or programme in order to carry out an EIA. However, under certain circumstances a national court may maintain the effects of unlawful decisions (only as long as is deemed necessary and under the condition the court has such a competence under its national law):
  1. If annulment of the plan or programme creates a legal vacuum that is incompatible with member states' obligation to implement another act of EU law concerning the protection of the environment, such as Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources. The court does not think this is the case however. It is also unlikely that Belgium's obligations under the renewable energy agreements can justify such an action to uphold the effect of the disputed decisions.
  2. If annulment leads to a genuine and serious threat of disruption to the electricity supply of the Member State concerned which could not be remedied by any other means or alternatives, particularly in the context of the internal market. The court argues that this also seems unlikely.
Since EU law has supremacy over the national laws of member states, only the court of Justice as a judge might 'allow temporary suspension of the ousting effect of EU law with respect to national law that is contrary thereto'. The court might do so, in exceptional cases. In this case however, where the wind farm project has not been completed and construction has not yet begun, the court does not see any reason to resort to this competence.

The consequences for the Netherlands

In light of the media attention surrounding the case, especially from certain wind farm opponents of, we clarify a few matters in relation to Dutch wind farms below. 1. How likely is it that the Dutch Activities Decree and Regulation violate EU law, because these have not been subject to an EIA? We believe it's not very likely. In the Netherlands wind farms are regulated by several legal frameworks. In most cases local, regional or national spatial plans need to be adopted to erect and operate wind farms and permits need to be granted. Rules regarding noise (low frequency noise) are set out in the Activities Decree on Environmental Management (in Dutch: "Activiteitenbesluit milieubeheer"). Rules regarding the shadow cast by blades (limitation of the stroboscopic effects caused by that shade) are included in the Activities Regulation on Environmental Management (in Dutch: "Activiteitenregeling milieubeheer")). In several administrative proceedings it has been claimed that the Activities Decree and Regulation should be considered as "plans and programmes". However, Dutch courts have, so far, consistently rejected these claims arguing that such plans or programmes must entail at least the realisation of a project to a certain extent. The Activities Decree and Regulation do not relate to the realization of a wind farm, either in a planning or in a programming phase. The Decree and Regulation only provide preconditions that every installation must meet after completion. The recent ECJ judgment may oblige the Dutch administrative courts to specify the motivation behind this reasoning. We believe, however, the outcome of the reasoning would be the same: the Activities Decree and Regulation do not fall within the scope of "plans and programmes". A decisive factor for the court seems to be that it concerns "a significant body of criteria and detailed rules for the grant and implementation of one or more projects." About the Flemish decisions the court concluded that they were "sufficiently significant for the determination of the conditions for consent to be granted for the installation in the proposed geographic zone of wind farms whose environmental impact is undeniable". In the Netherlands the Decree and Regulation regulate some aspects of wind farms but in their capacity as general rules (preconditions) and not as set conditions for consent. The provisions of the Decree and Regulation are not implemented in permits but have effect next to permits or even regardless of permits. Conditions for consent are laid down in the structural visions (structuurvisie), spatial plans and permits. As such, these are plans setting the framework for future decisions. An EIA of the Activities Decree and the Activities Regulation would in our view have no added value and would not fall within the criteria set by the court: they cannot be considered as forming a sufficiently significant framework for the grant of projects and, also, they do not relate to a geographic zone as such (contrary to the Flemish decisions). Moreover, looking at the directive's objective, we believe that EU law has not been violated. Most wind farms are subject to EIA anyway: wind farms larger than 15 MW or with at least ten turbines must have an EIA carried out. As to wind farms up to 15 MW, but with at least three wind turbines, the "verification obligation", also known as a form-free assessment, applies. This determines whether there is, based on the criteria of the EIA-directive, cause for an EIA to be drawn up. If any risk exists, it would most likely only be for the very small wind farm projects (1 or 2 wind turbines). 2. If the Dutch Activities Decree and Regulation violate EU law, will permits be revoked? We believe it's unlikely. First, the ECJ asserts that the principle of legal certainty objects to revocation. Second, even in the "PAS-uitspraak" (PAS is the Dutch regulatory framework for nitrogen emissions), the highest administrative court explicitly stated that the effect of its ruling had no consequences for irrevocable permits granted on the basis of the PAS. Provinces in the Netherlands are, however, confronted with requests to revoke irrevocable permits on the basis of Article 6 par. 2 of the Habitat Directive. Currently, the Council of State has to decide a case on appeal in which an irrevocable permit was revoked. In this case, the permit had not been used up and until the request for a preliminary ruling – this is a factor that should be taken into account according to the court. It is important to note that: (i) this is so far a rare example of actual withdrawal, (ii) withdrawal is based on a specific legal basis in nature conservation legislation based on an obligation in the Habitat Directive, (iii) it has not been tested before the highest administrative court, and (iv) it concerns a permit that had not been used yet. In addition, it is likely that an EIA will have been performed (except potentially for very small wind farms of no more than a few wind turbines), which means that the EIA-obligations have been met. Third, as mentioned before, we believe the Activities Decree and Regulation do not affect already granted permits or even permits in procedure, since the contested permits are not based on or rooted in these decisions. Obviously the judgment of the court, although not really "new" or ground-breaking, could also be relevant for the Netherlands and the impact on the Activities Decree and Regulation needs to be assessed carefully. But claims in the media, in particular from wind farm opponents, that this judgment would "place a ticking time-bomb" under Dutch wind farms, are unfounded and, at a minimum, premature and without merit. If you have further questions, please contact the Energy Industry Group of De Brauw.