Environmental impact assessment (see also: Environmental impact assessment, European Union, Judicial review)

In May 1993 provincial authorities in Northern Holland approved the 'Ruigoord 1992' land use plan for a port and industrial development extending west from the port zone of Amsterdam. A number of people brought an action challenging the decision to approve the plan on the grounds that the plan had been authorised without an environmental assessment having been carried out as required by Council Directive 85/337/EEC. Article 1(1) of Directive 85/337/EEC relates to the assessment of the environmental effects of both public and private projects which are likely to have significant effect on the environment. Article 2(1) of the Directive provides that member states shall adopt all measures necessary to ensure that, before consent is given to projects likely to have significant effects on the environment by virtue of their nature, size or location, such projects are to be made subject to an environmental impact assessment. Directive 85/337/EEC was transposed into Dutch law in May 1987 by the Order on Environmental Impact Assessment. This Order lists the projects (or "activities") for which an environmental assessment is required and the construction of a port for civil use (for inland waterway or maritime navigation) is a relevant "activity" where the port permits the passage of vessels of 1,350 tonnes or more. Therefore the adoption of a plan which provides for the possible construction of such a port is to be preceded by an environmental assessment. However, the Order on Environmental Impact Assessment also provides that an environmental impact assessment report is not obligatory where an activity/project has already been incorporated in a current structural, zoning or regional plan. The projects featured in the 'Ruigoord 1992' plan were contained in earlier regional and zoning plans, although the implementation of these never progressed. Accordingly, the Nederlandse Raad van State (the national Court) was of the opinion that there was no obligation under the Order on Environmental Impact Assessment to carry out an environmental impact assessment before authorising the Ruigoord 1992 plan because the plan had already been included in earlier development plans. However, since the national Court had some doubt over the compatibility of the rules laid down in the Order on Environmental Impact Assessment with Directive 85/337/EEC it stayed the proceedings and referred the issue to the European Court of Justice. The issue before the Court was essentially whether Directive 85/337/EEC is to be interpreted as allowing Member States to waive their obligations concerning environmental impact assessments where projects have already been the subject of a consent granted before the date that the Directive was transposed into national law and a fresh consent procedure was formally initiated after that date. The European Court of Justice has held (in case C-431/92 Commission v Germany [1995] ECR I-2189) that the Directive does not apply where the application for consent was formally lodged before the implementation of the Directive. The reason behind this is that the Directive is primarily designed to cover large scale projects which often require a long time to complete. It would not be appropriate for consent procedures, which are already very complex at a national level and which had already been initiated prior to the implementation of the Directive, to be made even more cumbersome and time consuming by the need to take account of the specific requirements of the Directive. However, the circumstances of the instant case did not concern a consent procedure for a project which was formally initiated before the Directive was implemented. On the contrary, it concerned an application made after the Directive was transposed into Dutch national law, seeking fresh consent for a project incorporating developments for which consent had been obtained some years previously. The Court held that where a consent procedure is formally initiated after the Directive has been transposed into national law, the procedure is subject to the obligations regarding environmental impact assessments imposed by the Directive. The Court noted that any other solution would detract from the principle objective of Directive 85/337/EEC that an environmental impact assessment must be made in relation to certain major projects.