One establishment is not the other

In a February 22, 2017 ruling by the Administrative Law Division of the Council of State (the Division), the question was whether an environmental permit for a nuisance pig farm could be revoked. This ruling shows that that question is not easy to answer. After all, in the Netherlands, one establishment is not like another.

Revocation of environmental permit can due to unacceptable odor nuisance?

This ruling concerned a request by a local resident to revoke the permit of an adjacent pig farm. The reason was that the farm was causing unacceptable odor nuisance. The Division carefully went through how such a request should be evaluated.

1. First, the Division looked at what kind of permit the pig farm had. This turns out to be a so-called limited environmental permit (OBM) as referred to in Section 2.1, first paragraph, subsection i, of the Environmental Law (General Provisions) Act (Wabo).
2. The Division then looks at what possibilities there are in the Wabo to revoke a permit. That possibility exists, among other things, if "the establishment causes unacceptable adverse effects on the environment" and - in short - tightening of permit regulations does not provide a solution.
3. That brings the Division to the final question of whether the pig farm is an "establishment" within the meaning of the Wabo. Therein lies the interesting point of this ruling.

Indeed, in the Netherlands, the term "establishment" appears in several laws, such as the Environmental Management Act and the Wabo. But that definition varies quite a bit.

Under the Environmental Management Act, a facility is''any activity undertaken by man on a business or a scale as if it were a business, which tends to be carried out within a certain boundary''. The pig farm is definitely an establishment within the meaning of that definition.

But under the Wabo, companies for which there is (only) an environmental permit limited in scope (OBM) do not fall under the term 'establishment'. And so the pig farm is not an 'establishment' as referred to in the Wabo. And it is precisely in that law that the grounds for revocation are listed exhaustively. According to the Division, this can only lead to one conclusion.

Conclusion: one establishment is not the other

That conclusion is that there is no possibility in this case - even if there were indeed unacceptable odor nuisance - to revoke the pig farm's permit under the Wabo.

The Division provides another lesson in this regard. Insofar as this is an omission, it is not up to the administrative law judge, but to the legislature, to add a revocation ground to the limitative enumeration.

Until that happens, it means that a company requiring an OBM permit is an establishment within the meaning of the Environmental Management Act, but not an establishment within the meaning of the Wabo.