The Dutch Crisis and Recovery Act

In the Netherlands, the 2010 Crisis and Recovery Act aims at speeding up decision-making on a wide variety of activities, hoping that after the financial and economic crisis has passed, development projects can immediately be carried out without any delay caused by legal procedures in court or elsewhere.  The Act meets great criticism for many reasons:  it allegedly curtails citizen's procedural rights because it focuses almost exclusively on environmental standards as "obstructing" standards that need to be removed, and it infringes international and European Union law.  In this note, the legal critique on the Act is analysed.  The conclusion is that the sense of urgency surrounding the design of legal measures to address the economic crisis enables the legislature to implement innovations and long-time pending amendments to existing legislation.  Most issues have however not been fully or properly considered.  Many legal questions will arise when implementing the Act, which will retard rather than expedite projects.  It is difficult to predict whether the positive effects of the Crisis and Recovery Act would outweigh the negative aspects.  Much depends on the manner in which the authorities will actually apply the Act.  Should they implement the Act to its full potential, the effect of the Act in sum will be negative.  In that case, the Act may help the economy to recover, but it will bring about a crisis in the legal system.  It will, in all probability, also not contribute to sustainable development.


Introduction
Throughout the world, governments are responding to the financial and economic crisis. Such responses vary from supporting the banking system to adopting economic stimulus packages. The latter vary greatly. Some countries focus on specific sectors, often the green energy sector or, in a broader sense, the sustainable technology sector. Others have an even broader scope. Some countries use only financial instruments, such as subsidies or tax incentives, to stimulate (certain sectors of) the economy. Others apply a whole range of legal instruments. Combinations of measures such as these are seen as well. The article focuses on the Netherlands. This country opted for the enactment of a special act containing literally hundreds of articles, all of which are meant to speed up decisionmaking on a wide variety of activities, in the hope that after the crisis is over, all these projects can immediately be carried out, without any delay caused by legal procedures in court or elsewhere. The Crisis and Recovery Act 1 is seen as an example of ad hoc legislation. Drafted in a great hurry, it is meant to be in effect for only five years and contains several experimental instruments. The CRA has met with great criticism because it allegedly curtails citizens' procedural rights, since it focuses almost exclusively on environmental standards as obstructions that need to be removed and because it infringes international and EU law. The article describes the main characteristics of the new law and analyses the legal critique of the CRA, with the aim of assessing this new law's ability to help the economy to recover without bringing about a crisis in the legal system.

Aim and content of the Crisis and Recovery Act
The CRA has four main elements: 2 (a) special provisions for specific projects; (b) experimental rules on "development areas"; (c) special provisions for residential construction projects; and (d) provisions simplifying and streamlining twenty existing acts. These are discussed hereafter.

Special provisions for specific projects
Politically, in the media and in legal scholarship, most attention has been directed to the first chapter of the CRA. This chapter applies to seventy projects of national importance listed in Annex II and to categories of projects described more generally in Annex I. The provisions that apply to these projects aim to simplify the decisionmaking process significantly so that the projects can be carried out as soon as possible, thus stimulating the recovery process of the economy. All the listed projects are large developmental projects, such as the extension of large industrial sites, large-scale wind parks, large urban development plans and projects concerning central infrastructure (highways, railways, airport extensions and the renovation of bridges). General categories of projects also include infrastructural projects, including water management and sustainable energy projects. These provisions expire on 1 January 2014.
Changes made to existing administrative law in order to speed up decision-making on these projects include (this list is not exhaustive): (a) Decentralised government bodies cannot appeal against decisions by the central government that are not directed to them. This is contrary to existing administrative law. Unlike some other countries, it is common practice for government bodies to appeal the decisions of other government bodies; 3 2 Other elements are not discussed here because they are considered to have much less impact on the legal system, and are thus of less relevance for the main research objective of the article. An example of these is a provision permitting homeowners to let their homes temporarily whilst they are for sale (A 2.8 (c) The length of processes has been curtailed. Courts have to apply the fasttracking procedure already in existence, originally designed for the preliminary suspension of cases. 6 (d) Courts must decide within six months of the date on which the decision was made (that is, the start of the appeal term). 7 This replaces the existing provision that courts have to reach a decision within a "reasonable" term.
(e) Appellants can lodge only motivated appeals 8 and are no longer permitted to add additional grounds for appeal later. 9 This ends the common practice of lodging a "pro forma" appeal and adding motivations later during the trial.
(f) The "relativity" principle has been introduced, meaning that claimants can invoke only rules that are specifically intended to protect their interests. 10 (g) In instances in which an environmental impact assessment 11 is required, it is necessary neither to assess alternatives nor to require a recommendation by the EIA committee. 12 (h) The "lex silencio positivo" principle has been introduced on a wider scale.
According to this principle, a permit is legally deemed to be issued in cases in which the competent authority does not make a timely decision on an application for a permit. 13 Although already present in the GALA, this provision is now applied to more decisions (certain spatial planning decisions). 4 Algemene Wet Bestuursrecht of 4 June 1992hereafter GALA. 5 A 1.5 CRA. 6 A 1.6(1) CRA. 7 A 1.6(4) CRA. 8 A 1.6(2) CRA. 9 A 1.6a CRA. 10 A 1.9 CRA. Under common Dutch administrative law, once one is accepted as an interested person, one may have the entire decision reviewed by court. 11 Hereafter EIA. 12 A 1.11 CRA. Under Dutch environmental law, an EIA has to include an assessment of alternatives, such as other routes for a road or other locations for a harbour extension. The EIA committee is an independent scientific committee that advises on the scientific quality of the draft EIA. 13 A 1.12 CRA. 8/189

Experimental rules on "development areas"
The second important element of the CRA is the introduction of an experimental set of rules on "development areas". 14 Under Article 2.2, the central government can designate either urban or industrial development areas. The "bubble" concept is applied in these areas, that is, environmental standards apply only to the entire area and no longer to individual polluters. The local authority has to achieve a "good environmental quality" without having to apply the same environmental standard to each source of pollution. This offers the possibility of balancing polluting activities with clean activities in the area, thus creating additional "pollution rights" within the overarching environmental quality standard. Local authorities can also redistribute environmental rights within the development area to enable development without impairment to the overall environmental quality. The basis for such a redistribution of pollution rights is the newly created instrument of the "development area plan".

Special provisions for residential construction projects
The third main element of the CRA is the introduction of the "one-stop-shop" principle for the development of new residential areas comprising anything between twelve and 2000 new houses. Although only applicable to the construction of new residential areas, the provisions of this element are quite far-reaching. Practically, none of the legal provisions that require decisions to be made by any government authority is applicable to these projects. 17 These can include provisions in a wide variety of laws and regulations in fields such as the environment, nature conservation, spatial planning, water management and infrastructure. The only exceptions are provisions in nature conservation law and law protecting archaeological sites, both of which are sets of rules with an international and EU background. Rather than applying all these regular pieces of legislation, there is only one "project decision" to be made by the local city council. In making the project decision, the local council has to take into account the norms in the laws and regulations that were declared inapplicable. The "one-stop-shop" principle has thus been introduced into Dutch legislation. The initiator of a building project has now only to go to one authority, which reaches a decision on its own and provides the applicant with one integrated permit. There are ample possibilities for public participation, albeit just once (since there is only one decision). Appeal is possible in one instance only and the administrative rules on the decision-making process described above under Section 2.1 apply to the project decision as well. 18 Again, these provisions expire on 1 January 2014.

Provisions simplifying and streamlining twenty existing acts
The last element of the CRA that the article highlights comprises by far the largest part of the Act. The remaining forty pages of the CRA contain a seemingly endless  Many authors argue that the CRA will ultimately not lead to a speedier process, but most likely to even further delays. 28 The reasons for this are threefold. Firstly, it is clear that the Bill was drafted in a hurry and many issues have not been properly thought through. As a consequence, new legal issues will arise from these rapid but fundamental changes that are brought about by the CRA. Secondly, the CRA itself often creates new legal complexities. Consider, for example, the many alterations of existing nature conservation law. Whereas the original Nature Conservation Act in 1998 began with a simple Article 19, there is now not just an Article 19a,19b,19c,etc,but even an Article 19ka,19kb,19kc,etc. Article 19kh, for example, has five sections of which Section 1 has six subsections, of which a subsection has two subsub-sections. Rules frequently have exemptions, which in turn are exempted (which is an exemption to an exemption to a rule). Thirdly, given the knowledge we now have of decision-making in complex situations, it is very likely that some of the amendments will be counterproductive. Decision-making on large projects requires time. The feasibility of the project has to be studied, alternatives have to be looked into (see further below), environmental and other impacts have to be studied, including possible side-effects, and, as already indicated, the involvement of stakeholders requires careful attention so as to achieve political and social acceptance.

The Crisis and Recovery Act curtails citizens' rights in legal procedures
The right to appeal is limited in various ways, as described above, especially through applying the relativity principle and thus limiting the arguments that appellants may The period within which individual citizens and NGOs have to study documentation and write an appeal also appears to be problematic. There are only six weeks provided for this. Given that large and complex projects are involved, six weeks appears to be a short time, especially in combination with the measure to no longer allow pro forma appeals.
Interested and affected parties have to study documentation, consult with specialists if necessary, confer with others (for instance, with other inhabitants of the area who are affected by the decision, or with their lawyers), and document the legal complaints as correctly as possible because these cannot be changed or extended at a later stage.

Frequent potential infringements of international and European Union law
There are at least five elements in the CRA that conflict or may conflict, depending on the manner in which the provisions will be applied in practice, with international and EU law. Such a conflict is legally prohibited under the Constitution of the

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Public Participation in Decision-making and Access to Justice in Environmental Matters 32 and EU directives implementing this convention; (c) infringements of the EU EIA directive; (d) infringements of the EU biodiversity directives; and (e) infringements of the EU directives concerning environmental quality standards.

Making decisions against European Union law is legally impossible
Since it is legally impossible for any member state of the EU to make decisions that are contrary to EU law, two of the mechanisms to speed up decision-making in the CRA are illegal in cases to which they are applied in those instances in which EU law is applicable to the cases. Obviously, this is the case when illegalities are passed.
Passing illegalities, even insignificant ones, is not possible when EU law is involved.
Courts will therefore not be able to apply this provision when testing government decisions that relate to EU law. This will be so in most environmental cases because EU environmental regulation exists on practically all environmental topics. In addition, applying the lex silencio positivo principle will not be possible either, at least not in so far as it would lead to a decision that is contrary to EU law. The European Court of Justice has already judged, in a case against Belgium, that a system of tacit authorisation is contrary to a whole series of environmental laws. 33

Aarhus Convention and European Union directives implementing this convention
In testing the CRA against the literal wording of both the Aarhus Convention and the EU directives implementing this convention within the EU, 34  environmental decision-making. 35 As stated above, six weeks may, in complex cases, not be time enough to prepare thoroughly.
As far as access to justice is concerned, the Aarhus Convention allows national regulators to set criteria that have to be met in order for individual citizens and environmental NGOs to have standing. However, these criteria have to be consistent with the objective of giving the section of the "public concerned" wide access to justice. 36 The "public concerned" means the public affected or likely to be affected by, or having an interest in, the environmental decision-making.
Environmental NGOs are deemed to have an interest. 37 In taking these provisions literally, applying the "relativity" principle probably does not lead to an infringement.
This, however, depends on the manner in which the courts are to test the principle.
A very strict and narrow interpretation of the principle may lead to the situation in which people can invoke only those rules that are meant to protect personal interests, such as health and property. Since, according to its preamble, the Aarhus Convention is meant to preserve and improve the state of the environment and to ensure sustainable and environmentally sound development, such an application of the relativity principle would, in my view, be contrary to the Aarhus Convention. One can even wonder whether it is legitimate to reduce access to justice in environmental matters, since the entire convention concerns improving procedural rights in order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being. 38

European Union directive on environmental impact assessment
The EU EIA directive 39 does not explicitly require a scientific committee to be instituted. Again, however, the question arises whether abolishing such a committee once it exists is permissible, since the directive aims at having a reliable EIA system. Another point of discussion is whether the directive makes refraining from researching alternatives for the planned project a possibility. Assessing the consequences of the projects, looking into the consequences of potential alternatives, and comparing the environmental impact of all of these appear to be a basic feature of an EIA. 40 Still, the directive states only that an EIA has to include "[w]here appropriate, an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects". 41 In following this text literally, one could argue that once the developer refrains from searching for an alternative, the EIA can do without the assessment of alternatives as well. Although there is no relevant case law by the European Court of Justice on this issue yet, I assume that simply abolishing the need to assess the effects of alternatives is in conflict with the directive. 42 In the case of projects such as the ones listed in the CRA, it seems highly unlikely that one would not investigate possible alternatives, even should this only be for economic reasons (for example, the most economically viable route for a new road). If that is the case, then in my view, the EIA also has to include an assessment of the environmental impact of these alternatives. In addition, failing to investigate alternatives would probably rebound unpleasantly on those implementing the project because people would be able to argue in court that there was a far better alternative that should have been studied and that by not studying it the developers had not fulfilled their responsibilities. Since there is a general principle in administrative law that decisions have to be carefully prepared, this is a line of reasoning that may very well be successful in court. 43 40 Jesse Een Hernieuwd Perspectief analyses the literature on this issue. Examples are Yost "Administrative implementation of and judicial review under the National Environmental Policy Act" 14 (this is the "heart of the environmental statement") and Wood Environmental Impact Assessment. 41 Annex III para 2. 42 Similarly, Jesse Een Hernieuwd Perspectief 268-271. The opposite opinion is defended by Gundelach and Soppe 2010 TBR 23-34. 43 This principle is considered to be one of the most important administrative law principles and is codified in A 3:2 of the GALA.

European Union biodiversity directives
Just as in the above situations, the drafters of the CRA sought to eliminate legal provisions that are not strictly necessary from the point of view of EU law. Again, it must be concluded that they are walking on thin ice. Without going into too much detail, the CRA reduces everything to the minimum requirements of the EU Birds Only if and to the extent that the decision-making process on the management plan meets the requirements of Article 6(3) can an infringement of the Habitats Directive be avoided. Given that a management plan is adopted for a period of six years and that it covers a wide range of activities, it is quite unlikely that the authorities, when assess the impact of every future project individually. It is therefore likely that infringements will occur.
The CRA also contains direct infringements against the Habitats Directive, which are independent of the manner in which the authorities apply the Act. An example thereof is the exemption of the deposition of nitrogen (from farms and traffic) from the Nature Conservation Act permit as described above. The Habitats Directive, in Article 6(3) does not allow any exemption, except when Section 4 is applied. Article 6(4), however, applies only in cases in which overriding public interests are at stake.

Reducing the level of environmental protection
The above sections make it clear that the CRA reduces the level of environmental protection in the Netherlands, both in instances of procedural safeguards and with respect to the substance. The first chapter of the Dutch Constitution, which contains fundamental rights, includes the proclamation of a right to environmental protection.
Article 21 states that a duty to care for the environment rests with all authorities.
This provision, therefore, is regarded as a socio-economic right, not as a classical individual right. As a consequence, courts are reluctant to test government decisions against Article 21. Until now, the constitutional right to environmental protection has had a rather "soft" legal status. In the explanatory memorandum that accompanies the Dutch Constitution and in the literature, it is argued that one of the functions of Article 21 is to prevent the government from reducing the standard of environmental protection. 50 On the contrary, the provision rather aims at a constant improvement of the environment through the enactment of progressive laws and policies. In my view, the current CRA does not safeguard such an approach and is therefore unconstitutional. Unfortunately, there is no constitutional court in the Netherlands with the power to test legislation against the Dutch Constitution.

Conclusion
The Dutch legislature has enacted the CRA in an attempt to combat the financial and economic crisis. The CRA is an example of "occasional" (ad hoc or impulsive) legislation. There is a pervading sense of urgency, which has enabled the legislature to implement innovations and amendments to existing legislation that have been pending for a long time. However, most of the issues dealt with in this legislation have not been fully thought through. Legal scholars predict that the many legal questions that will arise in implementing the CRA will slow down the implementation of projects rather than speed them up. The CRA conflicts frequently with EU law. These conflicts will be discussed in court and not all such cases are likely to be decided in favour of the CRA.
The stakeholders in environmental matters are creative. They will find ways to defend their interests and pursue alternative legal pathways, thus obstructing decision-making that they regard as illegal. The CRA therefore arguably reduces citizens' rights solely to speed up decision-making. Nevertheless, the CRA does contain some interesting experiments, such as the designation of "development areas" and the introduction of "project decisions".
These new instruments may lead to more integrated decision-making, hopefully without blinkered vision on the part of the competent authority. A positive 52 proposal is also to prevent government bodies from suing each other. In accordance with the principle of cooperative government, authorities should work together to serve the common good rather than fight each other. 53 In addition, the set of rules enabling a swift conversion from fossil fuel energy production to green energy production is a positive element of the CRA.
Do the positive effects of the CRA outweigh the negative ones? It is difficult to say at this point, since much depends on the manner in which the authorities will actually apply the CRA. Should they enthusiastically apply the CRA's full potential, the effect 51 Tweede Kamer der Staten-Generaal 2009 http://bit.ly/azDLug. 52 Some authors argue the opposite because they feel that decentralised authorities should be able to defend the interests of the people they represent in all possible ways, see De Vries 2010 TBR 65-70. 53 Note that this principle, as laid down in S 41(1) of the Constitution of the Republic of South Africa, 1996, is not known in any legal text in the Netherlands.

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in sum will be negative from an environmental point of view. The CRA will help the economy to recover, but then again, the economy, if left to its own devices, would probably do so anyway, and the CRA will only induce a crisis in the legal system. In my view, the CRA will not contribute to sustainable development.