Nature Conservation Act
Routing decision
Comment


A question mark hangs over completion of the construction of the Netherlands' largest coal-fired (and biomass) power plant following two August 24 2011 rulings of the Administrative Jurisdiction Division of the Council of State. The power plant is situated in Eemshaven, in the northernmost point of the Netherlands and close to the German border. It would provide 2 million households with electricity. Of the recent rulings of the Council of State, three administrative decisions are relevant: two separate permits based on the Nature Conservation Act 1998 and a routing decision based on the Routing Act.

Nature Conservation Act

In August 2008 the minister of economic Affairs, agriculture and innovation and the Provincial Executive of Friesland each granted German corporation RWE Power AG a permit under the Nature Conservation Act for the planned coal-fired power plant. The permits are required since the plant is situated near the Waddenzee and the Duinen Ameland, which are 'special protection areas' pursuant to the EU Directive on the Conservation of Wild Birds (79/406/EEC) and the EU Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora (92/43/EEC).

Greenpeace and two other non-governmental organisations (NGOs), as well as RWE itself, filed objections, and subsequently appeals, against the permits. A previous request by Greenpeace for a preliminary injunction against the permit was dismissed in July 2009.

On appeal, the Council of State ruled that the necessary construction of a cool-water intake and a loading and unloading area were inextricably linked to the construction of the power plant itself, for which the permits under the Nature Conservation Act 1998 had been issued, and should thus have been taken into consideration when issuing the permits. As both the minister and the provincial executive had failed to do so, the Council of State ruled that the permits had been issued without sufficient research into the conservation of wild birds and of natural habitats and of wild fauna and flora.

The Council of State further ruled that any new permits under the Nature Conservation Act 1998 must be better reasoned insofar as the expected impact from nitrogen emissions on the German Wadden Islands, from the power plant on certain species of sea mammal and from water discharges on certain species of fish are concerned. Also, as a result of RWE's appeal, permits must be better reasoned with respect to the requirement that no light from the power plant may be visible on the border of the nearby Waddenzee conservation area.

The Council of State dismissed multiple other grounds of appeal by Greenpeace and the other appellants.

Routing decision

The Council of State also ruled on an appeal from 24 different appellants – mainly private individuals and NGOs in Germany – of a routing decision from the (current) minister of infrastructure and the environment to widen the Eemshaven-Noordzee seaway. The widening of the seaway is necessary to create sufficient depth for ships that will call at the new RWE power plant and other businesses at Eemshaven. A request by Greenpeace for a preliminary injunction against this routing decision was also dismissed in July 2009.

The Council of State ruled that the routing decision was insufficiently reasoned with regard to one specific safety aspect: whether it was necessary to construct a distress berth for the largest (bulk) ships. All other grounds of appeal were dismissed.

Comment

RWE had planned that the Eemshaven power plant would be operational by 2013. Pending several legal proceedings, it decided to start construction, which is now at an advanced stage. To be allowed to start up the plant, however, RWE will have to file for new Nature Conservation Act permits, a process which will certainly take some months. New permits must then be issued, which will have to be well reasoned - especially with regard to the points that have now been reversed by the Council of State. This will most likely also take some months. Further, the minister of infrastructure and the environment will have to issue a new routing decision. It may be expected that the new permits will then lead to further objections and appeal procedures.

According to RWE, barring a legally imposed building freeze, construction of the power plant will continue pending the new applications and possible legal proceedings. An appeal against the construction permit for the power plant was dismissed in November 2010. The relevant authorities have also stated that they will cooperate with RWE to issue all required permits. Therefore, completion of the power plant seems realistic in the near future; with some luck and perseverance, RWE may be able to start operations in 2013 as planned.

However, much will probably also depend on another pending decision from the Council of State. On September 5 2011 the Council of State heard a suit brought by Greenpeace and others regarding the environmental permit for the RWE power plant. This hearing took place after the European Court of Justice had issued a preliminary ruling in May 2011 on questions from the Council of State regarding the EU Directive on National Emission Ceilings (Cases C-165/09 to C-167/09). A verdict from the Council of State on the environmental permit is expected on October 17 2011.

For further information on this topic please contact Norbert de Munnik or Jolize Lautenbach at NautaDutilh by telephone (+31 10 224 0000), fax (+31 10 414 8444) or email (Norbert.deMunnik@nautadutilh.com or Jolize.Lautenbach@nautadutilh.com).