The Environment Act is coming - more rule fetishism or still more flexible?

This coming year is the year that the Environment Act is likely to come into effect after all. Faster and more flexible decision-making is one of the goals of the Environment Act. The fact that the Environment Act makes decision-making more flexible for governments was explained in outline in a previous blog. The question is whether the Environment Act also provides more flexibility for companies in developing their plans and subsequent assessment. We think there will be more room for this under the Environment Act.

With the upcoming entry into force of the Environment Act, this year we are informing you about the consequences of its (probable) entry into force, as of July 1, 2022. For example, we informed you about fees under the Environment Act, flexibility and procedures under the Environment Act, the Building Works Decree, the technical construction activity, coordinating under the Environment Act, the changed system for an application for a test against the environment plan, steering options, the transitional law, we explained the difference between a zoning plan and an environment plan, and the consequences for planning damage are outlined. In this article, we discuss three different flexibility instruments.

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From establishment to environmentally harmful activity

First, it is important that the term 'establishment' disappears. For environmental regulations, the term 'environmentally harmful activity' becomes the relevant standard. That definition includes more than what was covered by the term 'establishment'. Moreover, organizational ties are no longer relevant. It is therefore possible that activities, which now qualify as one establishment, will apply as two environmentally burdensome activities under the Environment Act. With this, those two environmentally burdensome activities must be assessed side by side rather than together. For manufacturing companies, this will allow the Environment Act to make a significant difference. This could include, for example, safety distances, which will be assessed differently.

Flexibility for manufacturing companies

With the Environment Act, there will be more opportunities for customization. This can be an advantage, because more customization is thus possible. However, this may lead to different standards applying at different production sites, especially since municipalities will have the possibility to set customization rules.

Flexibility under the Environment Act may include:

1. General rules, in the form of an equivalent alternative,

2. Area-specific rules, in the form of custom rules, or a

3. Individualized, situation-specific measure, in the form of a custom rule.

These flexibility instruments are already more or less familiar in our current environmental law. Nevertheless, the government emphasizes the possibility of using these flexibility instruments more broadly than has been the case so far. Let's zoom in on the somewhat more "tangible" flexibility instruments.

1. Equivalency

The person performing an environmentally harmful activity (hereinafter: the operator) is entitled to an equivalence test under the Environment Act. This equivalence test means that an operator can submit a proposal to the competent authority to replace a certain measure, which according to decentralized rules or state rules must be taken, by another measure that is equivalent to (the result of) a prescribed measure. Thus, if you believe that an underlying goal of a law can be achieved with a measure that is cheaper for you, under the Environment Act you are entitled to a serious review of your proposed measures. The equivalence test can apply to many measures and be filled in in many different ways. It can be a combination of building-technical, organizational or utilization-technical solutions.

For example, in the food industry, to prevent or reduce fugitive emissions, the air must be extracted. An equivalent alternative might then perhaps be that such extraction is not necessary if, because of other interventions, for example specific equipment, fugitive emissions cannot occur.

To determine whether a measure is equivalent, it must be clear what interest the measure serves: the purpose of the legal provision is decisive. For example, if a measure is designed for energy efficiency, only that is considered when considering whether a measure is equivalent. Aspects outside of this purpose should not lead to a refusal of equivalence consent.

It is important to note, however, that the competent authority ultimately determines whether a measure is equivalent. So the competent authority does have a certain amount of discretion.

2. Customization rules: area-specific customization

A customized rule is a general rule of a municipality, water board or province that deviates from or supplements a general rule of the state or province. Customization rules can be set in the environmental plan. Customization rules are general rules that deal with the activity described in the customization rule and/or the location designated in the customization rule.

With the entry into force of the Environment Act, fewer activities will be subject to national standards. Municipalities will have the opportunity to include their own rules on these in the environmental plan, subject of course to instruction rules. Custom rules are intended primarily for unforeseen situations, special cases, special local circumstances or for achieving ambitions for the quality of the physical living environment.

The possibility for municipalities to set (their own) customized rules does depend on the possibilities offered at the national level. For tailor-made rules it can be indicated in a general sense that they are subject to minimal restrictions. Municipalities therefore have much freedom to provide site-specific customization, which can concretely lead to lower (but possibly also higher) requirements with which a development must comply. For example, municipalities can prescribe in a custom rule that a more stringent energy performance coefficient must be met. Through a custom rule, your company could be legally bound to take more far-reaching energy-saving measures.

Nevertheless, flexibility can also be created through customization rules. For example, by including flexible environmental values in an environmental plan. For example, it is conceivable that different values will apply to the center area of Utrecht than to the center of Mill en Sint Hubert or the outlying area of Sneek.

3. Customization requirements: individual customization

Custom rules have the advantage that they apply to an entire area or category of cases. With customized regulations, the competent authority can deviate (further) from general rules precisely for specific cases. This can be done on its own accord or upon request. The possibility of tailor-made regulations already exists now, but because of the new possibilities for tailor-made rules, tailor-made regulations under the Environment Act may focus more on incidental situations.

The legislator sees tailor-made regulations as a common means in cases including unforeseen situations, special cases, local (specific) circumstances or if the achievement of ambitions for the quality of the physical living environment requires it. Examples of situations in which a customized regulation might be reasonable:

• A company receives permission to temporarily cause more noise pollution than is allowed under the environmental plan. For example, because there has been an incident in the company, making it temporarily impossible to meet the normal values.
• A company receives permission to discharge cooling water via a different discharge route than is allowed under the Living Environment Activities Decree. For example, because there is no connection to the wastewater sewer.

In these kinds of situations it is not desirable, or at least it should not be, to hold an initiator to generally applicable national rules. Customization is then appropriate, which - as mentioned above - an initiator can request himself. Again, the standard of the "physical living environment" makes it possible to deploy customization more broadly, and it remains the case that the Municipal Executive, in determining whether or not to adopt a customization rule, has discretionary power.

More customization possible under the Environment Act?

Under the Environment Act there will (may) be more customization. For example, because an equivalent measure proposed by an initiator must, as a rule, be accepted. Or because fewer activities will be standardized at the national level and entrusted to decentralized customization. The spatial scope of environmental plans will also extend to the 'physical living environment', which means that customization can be used much more broadly.

For manufacturing companies, this will mean that more rules may apply. Not so much because that is the purpose of the Environment Act, but because more opportunities for (local) customization means that different rules will apply more often at different locations. It will therefore become less clear. At the same time, this offers the opportunity to also obtain specific standards for specific and special business situations. It is therefore important that the production company acts proactively towards the municipality, so that municipalities can, and perhaps even must, include those standards in the Environmental Plan.