The principle of legal certainty requires that conditions attached to exemptions from environmental (and other) legislation be sufficiently concrete and objective. On 16 August 2017 the Administrative Jurisdiction Division of the Council of State gave the State Secretary of Economic Affairs a slap on the wrist for violating this principle in conditions he attached to an exemption under the Flora and Fauna Act (Flora- en faunawet). On 1 January 2017 the Flora and Fauna Act was incorporated in the Nature Conservation Act (Wet natuurbescherming). Some of the permitting, supervision and enforcement powers that used to belong to the central government have been transferred to the provinces. Therefore, it is now up to the competent provincial authorities to ensure compliance with the legal certainty principle and it is up to those applying for permits or exemptions to be on the lookout for violations.
Conditional exemption from Flora and Fauna Act
Two wind energy companies sought to replace 17 of their wind turbines by 14 new and larger ones. To this end, they applied to the State Secretary of Economic Affairs for an exemption from, among other things, certain provisions of the Flora and Fauna Act protecting migratory birds. The State Secretary granted the exemption subject to several conditions. One such condition was an obligation to monitor, in short, the effect of the wind turbines on two bird sorts during the breeding and migration periods: if based on the monitoring results there was reason to take protective measures, the companies were required to draw up a mitigation plan. Another condition was that the wind turbines be equipped with a shut-down mechanism ensuring that the blades come to a virtual stop during periods of intensive migration in weather conditions of poor visibility and/or headwinds.
The Administrative Jurisdiction Division decided on 16 August 2017 that conditions attached to an exemption must be concrete and objective enough to make it clear to the exemption holder what action is required. The State Secretary should not only have clarified the circumstances under which monitoring results require mitigating measures but should also have been more specific about such measures. According to the judgment, criteria such as "weather conditions of poor visibility and/or headwinds" and "periods of intense migration" are insufficiently clear. The State Secretary could have made the criteria more concrete by, for example, requiring the issuance of a poor visibility warning by a weather station, stating a wind direction or specifying the meaning of "intensive migration".
The Administrative Jurisdiction Division has held on more than one occasion that a condition attached to a permit or exemption was insufficiently concrete or objective. Applicants and competent provincial authorities would be well advised to keep this in mind, especially since the replacement of old wind turbines will be a regular occurrence if the Netherlands is to meet its wind-energy targets.