Environmental Law Network International
12/2004
Restructuring Environmental Legislation in the Netherlands
Jonathan Verschuuren
1 Introduction
In 2002, the newly elected Cabinet in the Netherlands decided to act upon a growing number of
complaints from businesses that government legislation is the cause of heavy administrative burdens
for companies. According to businesses, this has a
negative impact on the economy. The Cabinet
promised to reduce the administrative burdens by
25%. Environmental legislation was at the centrepiece of the complaints. In December 2003, the
Minister and Secretary of State of Housing, Spatial
Planning, and the Environment presented her detailed plans on reducing environmental legislation.
Some 75% of all environmental acts, orders in
Council and ministerial decrees will be either withdrawn, integrated or changed. This short article
gives an overview of these ambitious plans.
2 Reducing rules: why?
As in the early 1990’s, the Netherlands experience a
strong plea for deregulation, especially from businesses. The latter claim that government rules concerning working conditions, fire resistance, food
safety, environmental protection, taxes etc., are too
numerous, too complicated, and sometimes even
contradictory. In 2002, the newly elected Cabinet
announced the reduction of the number of rules, and
thus decreasing administrative burdens for businesses, as one of its main goals. The Minister of
Housing, Spatial Planning, and the Environment
was the first to start a project to restructure the
entire legislation in these policy fields (i.e., housing,
planning, environment). She formulated six, largely
overlapping, goals that are to be achieved:1
 limit unnecessary rules and bureaucracy;
 formulate rules that can be understood by citizens and that relate to problems the way citizens experience them;
 allow economic development through a consistent and well-ordered set of rules with less
procedures and more room for business initiatives;
 stop impeding decentralized authorities through
national legislation;
* Prof.dr. Jonathan Verschuuren is a professor of European and Interna-
tional Environmental Law at Tilburg University, the Netherlands. For more
information, see http://rechten.uvt.nl/verschuuren.
1 Parliamentary Documents II, 2002-2003, 28 600 XI, No. 10, p. 1-2.

less rules that are better enforced than today’s
rules;
 simplify EU legislation.2
All of this is supposed not to reduce the level of
environmental protection,3 although the Minister
admits that it might sometimes be necessary to
allow to diverge from environmental quality standards in order to achieve the best possible overall
environmental quality.4
3 How has the plan been reached?
In a relatively short period of only four months
(January-April 2003) a large group of civil servants
of the Ministry inventoried and scrutinized all of the
approximately 400 acts, orders in Council and ministerial decrees on the three policy fields of the
Ministry. An enormous amount of work was carried
out. For each piece of regulation, the following
aspects were described: the target of the legislation,
the relationship to EU law (if any), the nature of the
rules, the administrative duties that follow from
these rules, and the bottlenecks that had been reported. Then, a small project group decided, on the
basis of all the information gathered, for each piece
of legislation whether it should be abolished, integrated into an other piece of legislation, changed, or
whether it should remain intact. Of the total of 400
acts, orders in Council and ministerial decrees, 100
should be abolished, 100 should be integrated, and
another 100 should be amended. In sum, 75% of all
legislation will have to be altered in one way or
another. This clearly is the largest legislative operation in the environmental policy field we have ever
seen in the Netherlands so far.
In December 2003, the Minister sent a legislative
programme to Parliament, outlining the approach.
The proposals were divided into three groups. The
first group of proposals are those that have the largest effect as far as reducing administrative burdens
is concerned, as well as those that can be carried out
relatively easily. These proposals have been marked
‘priority 1’, and will be initiated immediately, and
completed between 2004 and 2008. The two other
groups of proposals will be initiated at a later stage.
‘Priority 2’ plans are to be initiated while the current Cabinet is still in office (to be completed be2 The Dutch Presidency has selected this target as a priority target, see the
Precidency’s website http://www.eu2004.nl.
3 Parliamentary Documents II, 2003-2004, 29 200 XI, No. 7, p. 3.
4 Parliamentary Documents II, 2003-2004, 29 200 XI, No. 7, p. 8.
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tween 2005 and 2009), and ‘priority 3’ plans are to
be initiated by the next Cabinet (to be completed in
2008 and 2009).
4 Content of the plan to reduce the number
of rules
In this short contribution, it is not possible to discuss all the plans that were developed. Instead,
three major plans encompassing a large share of
Dutch environmental legislation will be discussed:
a) integration of legislation, b) abolishment of nonEU-required rules in implementing legislation, and
c) integrated license.
a) Integration of legislation
The entire operation clearly shows that as far as
systematizing and integration is concerned, much
remains to be improved. To give a simple example:
there are no less than twenty orders in Council and
ministerial decrees dealing with asbestos, all from a
different angle. It is obvious that integrating these
pieces of legislation is necessary. At the level of
acts, similar improvements can be carried out. Since
the enactment of the Environmental Management
Act (EMA) in 2003, several sectoral acts have
gradually been integrated into the EMA. However,
for some reason this process slowed down and
eventually almost came to a full stop, with several
sectoral acts still (at least partly) remaining in place.
Therefore, the Minister announced the plan to complete the integration of environmental acts into the
EMA. The Dangerous Substances Act, the Noise
Act, the Air Pollution Act and the Soil Protection
Act will all be fully integrated in the EMA.
Unfortunately, several environmental acts that fall
under the competence of other Ministers, such as
the Minister of Traffic, Public Works, and Water
Management and the Minister of Agriculture, Nature, and Food Quality (for instance, the Pollution
of Surface Waters Act, several acts regulating the
environmental impact of agriculture, and the Nature
Protection Act) will not be integrated. It was decided not to submit any proposals that change existing
competencies. The Minister of Housing, Spatial
Planning, and the Environment clearly fears resistance of the other Ministers and does not want to
jeopardize the entire restructuring programme on
competence issues. However, from the point of
view of citizens and business corporations this
approach is contrary to the ultimate goal of the
entire operation, which, of course, is to reduce administrative burdens. From a European perspective,
the division of powers and policies regarding environment, nature, and water between three ministries
is becoming increasingly difficult as well. Horizon-
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Environmental Law Network International
tal directives, such as the IPPC Directive,5 the Strategic Environmental Assessment Directive 6 and the
Environmental Liability Directive 7 are difficult to
implement when three separate sets of legislation
have to be adapted.
One integration project, in my view, is a bridge too
far. Under Dutch environmental law, only 25% of
all installations that fall within the scope of the
EMA have to apply for a permit. All other installations that originally needed an environmental permit have been brought under national regulations. 8
These installations have to comply with environmental rules laid down in an order in Council. They
no longer have to apply for a permit to local or
regional authorities. The orders in Council have
been designed for an entire branch of business, e.g.,
one for service stations for cars, one for textile
cleaning companies, one for recreation complexes,
etc. The Minister now has announced to integrate
all of these orders in Council into one. Obviously,
this will lead to a reduction of the number of orders
in Council. However, in my view, such integration
will probably only increase administrative burdens
for companies. They no longer have their own set of
rules that has specifically been designed for their
branch of business. Instead, they have to find their
way in an order in Council that will probably consist of rather vague and broad rules, rules that apply
to a range of diverse activities. Thus, it will be more
difficult for them to figure out what it is that the
government wants them to do.
b) Repeal of rules not required by EU law in implementing legislation
A second group of changes to existing environmental legislation that has been proposed concerns
legislation that is intended to implement EC Directives. The Cabinet has decided to no longer ‘do
more’ in future than EC law requires it to do. The
rationale is that simply following the EC Directive
is enough, no more ‘extras’ will be added. As a
consequence, part of the restructuring plans propose
to abolish ‘extras’ that have been put in place in the
past as well. A much discussed example is the scoping phase of the environmental impact assessment
procedure. Directive 85/337/EEC on the assessment
of the effects of certain public and private projects
5 Directive 96/61/EC concerning integrated pollution prevention and control,
OJ L 257/26.
6 Directive 2001/42/EC on the assessment of the effects of certain plans
and programmes on the environment, OJ L 197/30.
7 Proposal for a Directive on environmental liability with regard to the
prevention and remedying of environmental damage, joint text approved
by
Conciliation
Committee,
10
March
2004,
cf.
http://europa.eu.int/comm/environment/liability/index.htm
8 As a consequence of an earlier deregulation operation dating back to the
1990’s.
Environmental Law Network International
on the environment, as amended by Directive
97/11/EC, only has a limited provision on the scoping phase, ie the phase during which it is decided
what will be the scope of EIA (What will be the
main focus of the EIA? What alternatives will be
studied? etc.). Art. 5(2) only opens the possibility
for the developer to request the competent authority
to give an opinion on the information to be supplied
by the developer in the EIA. However, in the Netherlands the scoping phase has been further regulated. There is an independent expert committee that,
in a procedure involving all relevant actors as well
as interested parties, such as NGOs and local residents, formulates directives for the EIA. In this
way, it is ensured that (1) no unnecessary information will be gathered, and (2) there will be no
discussion on the scope of the EIA afterward, ie
during the phase in which the final decision must be
reached. The fact that the EIA has been carried out
along the directives of an independent expert committee enhances the legitimacy of the EIA.
The Minister now has proposed to skip this procedure, again in an effort to reduce administrative
burden. And again, it is not certain that such a reduction will be actually achieved. The risk of each
and every EIA being questioned in court because
wrong alternatives have been studied, or the wrong
information has been gathered, is not hypothetical.
c) Integrated license
Of the entire restructuring programme, the plan to
integrate several existing licenses into one has
gained most attention. Again, this plan is only limited to licenses that fall under the competence of the
Ministry of Housing, Spatial Planning, and Environment, i.e., the environmental permit regulated in
the EMA, the building permit regulated in the
Housing Act, and some decisions on the basis of
planning law, regulated in the Spatial Planning Act.
Ideally, a person or a company planning an activity,
should only have to apply for one decision, that is
reached in one decision-making procedure, with one
review procedure in court. To achieve this ideal
situation, the Minister has announced to make a
start by integrating the decisions just mentioned,
although she admits that several other permits will
have to be integrated as well (most notably the
permit to discharge waste into surface waters under
the Pollution of Surface Waters Act, which, as already mentioned, falls under the competence of
another Minister). Many authors have already
pointed out that this ideal situation will probably
not be reached, because there are too many negative
consequences.9 For instance, the decision-making
9 P.J.J. van Buuren, De brede VROM-vergunning: een onbereikbaar ideaal,
Bouwrecht 2004/2, p. 101; P.C. Gilhuis, Naar minder of naar betere re-
12/2004
process for an environmental permit is quite long
(up to six months), as a consequence of the difficult
technical questions involved. A building permit, on
the other hand, is a relatively easy decision that can
be reached within a few weeks. Integrating both
permits would mean that the applicant will have to
wait for six months before he receives the integrated permit. Maybe the applicant (for instance, a
project developer) wants to build a building first,
and later decide what kind of business he will lease
his building to. These and other complications lead
most authors to the conclusion that it is better to
provide for a co-ordination procedure (for instance:
one court procedure against both decisions at the
same time), rather than to come to a full integration.10
5 Does this plan really reduce administrative
burdens?
In part: yes it does. Integration of legislation can to
a certain extent contribute to a more systematic and
orderly set of rules. Legislation that is more accessible, can be applied easier. However, it is an illusion to think that there is such a thing as simple
environmental legislation. In my view, environmental legislation will always remain complicated.
There are several reasons for that. First, regulating
environmental issues always involves opposing
interests (ecology versus economy). This leads to a
certain ambivalence in legal norms. Second, there
are rapid technological developments, and also our
knowledge of causal relationships between human
activities and environmental problems is constantly
evolving. Third, there is a strong influence of international and, especially, EU law on national environmental legislation. This results in a constant
process of reconciling national law with European
and international law.
My greatest concern with regard to this huge operation is that little research has been carried out into
what exactly the problem is that these plans have to
solve. It is clear that there is a broad sense of discontent among businesses concerning the government in general. It is not very clear whether this
sense of discontent is actually caused by environmental rules and regulations. As a matter of fact,
evaluation of environmental legislation over the
past few years, repeatedly shows that businesses
have problems with decentralized authorities that
have to apply and enforce environmental legislation. There is a serious lack of capacity and expertise here. In the view of the Evaluation Committee
gelgeving in het milieurecht? Over herijking van de VROM-regelgeving,
Tijdschrift voor Omgevingsrecht 2004/2, p. 44.
10 Ibidem.
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for the Environmental Management Act,11 that
carried out twenty evaluation projects over the past
four years, the execution, monitoring and enforcement of environmental legislation should be professionalized, rather than to further change environmental legislation. Unfortunately, all of these evaluations were ignored while preparing the restructuring plans.
The magnitude of the proposals makes one fear the
worst for the level of local governments. Changing
75% of all environmental legislation means that
environmental legal practice will change thoroughly: all civil servants involved will have to familiarise themselves with the new legislation. This will, at
least during the next 5-8 years and at least on the
side of governmental authorities, increase administrative burdens enormously.
6 How does this plan affect the environment?
This question is difficult to answer at this moment.
We will have to wait and see how the actual texts of
new and integrated acts and orders in Council will
be formulated. According to the Minister and the
Secretary of State, the plans do not reduce the level
of protection. However, taking away procedural or
11 All the reports of this Committee can be downloaded from its website (in
Dutch) at http://www.ecwm.nl.
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Environmental Law Network International
substantive safeguards (see the example of the regulated scoping phase of the EIA procedure) might
lead to decision-making in which there is less room
for a cautious and precise consideration of the environmental interests involved.
7 Conclusion
In the Netherlands there are almost 400 acts, orders
in Council and ministerial decrees on the policy
field of housing, planning and the environment.
This is quite a large number. It was a wise decision
to verify whether all of these are still necessary, and
whether or not an integration of legislation is possible. The Ministry of Housing, Spatial Planning, and
the Environment has done an impressive job by
scrutinizing all 400 in only four months. However,
the proposals that now have been sent to Parliament
are too far reaching to be simply based on this scrutiny. Moreover, there is no clear insight into the
nature of the problem. The Ministry has come up
with a solution without knowing what the exact
problem is. What exactly is an administrative burden? How much of this burden is actually related to
a legal rule in a specific piece of legislation? Do
businesses want less rules, or do they want less
government interference? Without these questions
answered, it is possible that in 2009, when all
changes must have been carried out, the problem
still exists.