As a small and densely populated country and a member of the European Union, the Netherlands has a comprehensive and well-established regulatory framework governing environmental protection.

The principal source of the Dutch environmental regulatory framework is the Environmental Management Act (Wet milieubeheer – EMA), which includes generally applicable regulations and minimum standards for a large variety of environmental aspects, such as air pollution, noise hindrance, emission rights and waste management, as well as a more procedural framework in respect of the issuing of permits and/or other public law consents. In addition, the EMA serves as a statutory basis for many lower environmental decrees and regulations, including the Activities (Environmental Management) Decree (Activiteitenbesluit).

In the Activities Decree, general rules are stipulated with regard to the operation of facilities in the Netherlands that cover virtually all relevant environmental aspects (eg, noise limits, air emission standards and odour limits). Under the Activities Decree, specified categories of less environmentally sensitive activities are governed by general regulations and/or require a notification to be filed with the competent authorities. Further to this notification, customised provisions (maatwerkvoorschriften) can be imposed in addition to the general regulations if such is deemed necessary by the authorities to ensure adequate protection of the environment, in light of the specific circumstances of the relevant facility.

Facilities that, in general, have a more substantial environmental impact – referred to as "Type-C facilities" – require an environmental permit for their activities. The environmental permit, if granted, will include a set of facility-specific regulations that will apply in addition to the general rules applicable under the Activities Decree. Generally speaking, facilities requiring a permit for their operations should comply with the best available techniques stipulated in the European Best Available Techniques reference documents (BREFS).

Various other laws also provide for environmental protection regulations, such as the Water Act (Waterwet), which stipulates a comprehensive framework for all activities that may negatively impact the quality of surface waters. This Act includes permit requirements and conditions for waste water management and water extraction activities, whereas the framework for the protection of soil and groundwater quality is laid down in the Soil Protection Act, which includes a general duty of care pursuant to which a party causing spills or leakages is, in principle, obliged to remediate any resulting soil/groundwater pollution.

On 29 May 2019, the Dutch permit-granting process was shaken to the core when the Administrative Jurisdiction Division of the Council of State put an end to the Programme to Combat Nitrogen (Programmatische Aanpak Stikstof – PAS).

As a result of the PAS ruling, initiators are again required to determine that each project's nitrogen deposition would "definitely" not have significant effects for Natura 2000 areas. Where it is determined and ecologically substantiated, no ecological permit (or application for one) would be required. However, this is not possible in all cases because of the large nitrogen burden with which Natura 2000 areas have to contend in the Netherlands. As a result, ecological consent is nowadays more often required (and can be difficult to obtain), certainly in the case of extensive projects in the vicinity of a Natura 2000 area.

Since the PAS ruling, a number of regulatory changes have been implemented to ease its effects, including the Nitrogen Mitigation Emergency Act (Spoedwet aanpak stikstofproblematiek – SAS) and more recently the Nitrogen Reduction and Nature Enhancement Act (Wet Stikstofreductie en Natuurverbetering), which came into effect on 1 July 2021. Amongst other things, this Act provides for exemptions for construction, demolition and one-off installations – in short, the building exemption. As such, the permit process for the nitrogen aspect as described above only plays a role during the operational stage of development projects. By way of supporting arguments for this measure, the legislation introduces measures to affect the source of the nitrogen emissions, which need to lead to an "irreversible and unconditional" reduction of nitrogen.

In October 2022, the Dutch cabinet embraced further (legislative) action aimed at curbing nitrogen deposition to be announced in the first half of 2023. In spite of these regulatory changes, it is anticipated that the issue of nitrogen and construction will also continue to stir up strong feelings in the years ahead.

From a procedural point of view, the General Environmental Permitting Act (Wet algemene bepalingen omgevingsrecht – GEPA) needs mentioning here as the overarching framework for the issuing of permits in the environmental domain. With the enactment of the GEPA in 2010, around 25 formerly separate permits were replaced with a single "all-in-one permit for physical aspects". The Act makes it possible to integrate several aspects of one project or facility into a single permit, thereby giving applicants considerable freedom in arranging the process of requesting a permit.

Lastly, when discussing Dutch environmental law, another development that should be noted is the current legislative project aimed at fully integrating all acts, decrees and regulations that apply to the physical environment (fysieke leefomgeving) – such as the Spatial Planning Act (Wet ruimtelijke ordening), the GEPA, the Crisis and Recovery Act (Crisis- en herstelwet), the Noise Abatement Act (Wet geluidhinder), the Soil Protection Act (Wet bodembescherming – SPA), the new Nature Conservation Act (Wet natuurbescherming) and the Water Act – into one all-encompassing Environmental and Planning Act (Omgevingswet).

The expectation is that this new Environmental and Planning Act will take effect in July 2023. However, the law-making process has proved to be much more complicated than initially expected – being one of the single largest legislative projects in recent Dutch history – and a number of difficulties in the implementation of the Act (relating to the IT infrastructure required, amongst other factors) are still expected. Looking at the latest developments, it remains to be seen whether this deadline will be met, as well as how much will change compared to the current situation and how quickly such changes would take shape. In any event, the legislative developments in this respect are expected to remain a topic of debate in the coming years.

In the Netherlands, environmental policy and enforcement are applied on both a local and national level. Local governments such as municipalities, provinces and water authorities grant permits and enforce them for environmental topics such as odour, noise, environment (municipalities), nature, large facilities and soil (provinces) and water management and quality (water authorities). Municipalities and provinces may instruct regional environmental agencies (omgevingsdiensten) to carry out supervisory and enforcement-related tasks on their behalf.

Furthermore, competent authorities are appointed on a national level with respect to certain topics. The key regulatory authorities in that respect are as follows.

• The Living Environment and Transportation Inspectorate (Inspectie Leefomgeving en Transport – ILT) has a supervisory role in the field of transport, waste and chemicals. In that context, the ILT is competent to decide on permits for high-risk water discharges, and to receive notifications of the transport of waste on the basis of the European Waste Shipment Regulation.
• The Dutch Emissions Authority (Nederlandse Emissie Autoriteit – NEA) has a supervisory role in the context of the climate and the reduction of CO₂. In that context, the NEA is competent to grant emission permits and to supervise the EU emissions trading scheme and renewable fuel regulations.
• Other national supervisory authorities are also active on specific topics, such as occupational safety (the Netherlands Labour Authority/Nederlandse Arbeidsinspectie – NLA), mining (State Supervision of Mines/Staatstoezicht op de Mijnen – SodM), and pesticides and biocides (Food and Consumer Product Safety Authority/Nederlandse Voedsel- en Warenautoriteit – NVWA).

All national supervisory authorities operate under the name and instruction of the competent ministry.

The power of regulatory authorities is generally governed by the General Administrative Law Act, and in specific legislation where additional powers are granted. Supervisory authorities in the Netherlands have quite extensive investigative and access powers to carry out their tasks. In general, supervisory authorities have the following investigative powers:

• to access business locations (whether accompanied by the police or not);
• to obtain business-related data and documents (unless legally privileged);
• to obtain information, verbally or in writing; and
• to investigate objects and take samples.

Investigations may take place unannounced. Following an inspection, an inspection report or an official report is usually drafted and sent to the site operator.

The most important administrative sanctions are as follows:

• administrative fine;
• administrative enforcement order; and
• order subject to a fine.

Administrative sanctions can be divided into punitive sanctions (administrative fine) and remedial sanctions (administrative enforcement order and order subject to a fine). Where a punitive sanction is intended to add suffering to the offender, a remedial sanction serves to end a violation and restore a lawful situation.

Most violations of environmental requirements also qualify as criminal offences under the Economic Offences Act. Therefore, the Public Prosecution Service (Openbaar Ministerie) is the main competent authority to carry out enforcement tasks from a criminal law perspective.

In general, there are objections to the cumulation of sanctions of a punitive nature. For example, it is not permitted to impose an administrative fine if criminal action is already being pursued for the same conduct. However, restorative and punitive sanctions may, in principle, cumulate and apply to the same conduct, although the severity of the administrative measure must be taken into account when determining the extent of the punitive sanction.

There is a legal obligation for the operator of a facility to co-operate with the investigation of a supervisory authority. Non-co-operation may result in enforcement measures, such as a fine or even criminal enforcement. The supervisory authority needs to safeguard against self-incrimination based on will-dependent material (such as explanations) if it intends to impose a punitive sanction (such as a criminal sanction or administrative fine). This only applies to the suspected violator, and not to witnesses.

Supervisory authorities may only use their investigative powers insofar as is necessary to carry out their investigation. The supervision should be proportional to the scope of the investigation.

The investigative actions of supervisory authorities are not subject to administrative objections or appeal. If a subject is of the opinion that supervisory powers are used incorrectly, this would have to be brought forward in a procedure against an actual enforcement measure.

In general, the environmental regulatory framework – as primarily stipulated in the EMA and Activities Decree – will apply to all economical or comparable human activities of any substance that are operated within certain geographical boundaries and that fall within categories as specified in Annex I to the General Environmental Permitting Decree (Besluit omgevingsrecht). Activities with a potentially more than remote environmental impact should be expected to fall within those categories. For reference: an office building will usually be subject to the environmental regulatory framework, while a retail unit will usually not be, unless, for instance, powerful technical installations would be present.

Within the categories of activities that are governed by the environmental regulatory framework, only those activities with a more substantial environmental impact are required to operate under an environmental permit. Other less environmentally sensitive activities can be operated solely under the applicable general rules under the Activities Decrees (Type-A facilities) or on the basis of an additional notification to be filed with the competent authorities that may lead to customised provisions being imposed in addition to the general rules (Type-B facilities). The activities that require an environmental permit are qualified as Type-C facilities and include IPPC facilities, as referred to in the Integrated Pollution Prevention and Control Regime laid down in EU Directive 2010/75/EU, as well as other high-impact facilities specifically designated as such in Annex I of the General Environmental Permitting Decree.

The environmental permit can pertain to the opening of a new facility or to relevant subsequent changes to the activities. If the opening or change of a facility is indissoluble from certain other activities that would require a permit or government consent (eg, a building permit and/or planning permission), the environmental permit application must be combined with the application for the other permit/consent, and will be issued as an integrated permit for the activities involved.

An environmental permit to open a new (Type-C) facility is applied for with the competent authorities. With the exception of a restricted number of categories in which a limited review applies (omgevingsvergunning beperkte milieutoets), the authorities will subsequently draw up a draft decision that can constitute the intention to either issue or deny the permit that is applied for. The draft decision is published and, along with the underlying documents (eg, technical surveys and draft permit provisions), made available for public inspection for a six-week period. Within this six-week period, third parties and/or the applicant can submit a statement of view (zienswijze) with regard to the draft decision, after which the authorities will issue their final decision. A statutory decision period of six months applies, but there are no direct legal consequences attached if this period is not complied with by the authorities.

The authorities' decision to grant or deny the permit can be appealed within six weeks at the Administrative Jurisdiction Division of the Dutch Council of State (Afdeling bestuursrechtspraak van de Raad van State) by parties with a specific vested interest. The right to appeal is, in principle, reserved to parties that had previously filed a statement of view regarding the draft decision, although pursuant to recent case law it is possible for parties with a vested interest that did not submit views to appeal a decision. In practice, appeal proceedings should be expected to take between eight and 12 months.

In the event of modifications to the operation of a facility that already holds an environmental permit, the procedure to obtain the required permit will depend on the nature of the changes. If the modification falls outside the scope of the existing permit but is environmentally neutral, a permit for the change should, in principle, be issued within eight weeks of the permit application. The authorities can extend the decision period once, for a maximum of six weeks; if the decision period is not complied with, the permit will be issued by operation of law. Objections against the decision to grant the permit can be filed by interested parties, within six weeks, with the regulatory authorities that have issued the permit. The decision on the objections can be followed by appeal proceedings with the Administrative District Court and the Council of State.

In the event of modifications that are not environmentally neutral, the procedure for the opening of a new (Type-C) facility will apply. Depending on the extent of the changes to the facility, the operator can choose to apply for a partial modification or for a complete revision of the existing permit. In certain situations, the competent authorities can stipulate that the operator is required to apply for a complete revision of the permit situation.

Under Dutch law, environmental issues are primarily administrative matters. However, administrative liability is not the only risk following an environmental breach: potential criminal and civil liabilities must also be taken into account.

Administrative liability can lead to sanctions and measures being imposed by a Dutch regulatory authority, as a result of a violation of environmental laws or regulations. In the event of such a breach, Dutch law provides for three types of potential administrative enforcement measures:

• an administrative fine (administratieve boete);
• an order subject to a penalty (last onder dwangsom); and
• direct enforcement by the authorities (bestuursdwang).

In the event of a breach of environmental laws, in most cases the authority will impose an order subject to penalty. That way, the offender is given the opportunity to end the breach itself within a certain period of time in order to avoid a fine. However, this remedial sanction can be combined with a fine should the authority deem this appropriate regarding the severity of the breach.

Secondly, there is the risk of criminal liability for the company as well as the de facto manager (feitelijk leidinggever). Most environmental violations are qualified as "economic offences", which in turn qualify as criminal infringements (overtredingen) when the offence is not committed deliberately or as a crime (misdrijf) in the event of a deliberate violation. This qualification affects the sanction that may be imposed. In short, the offender could face a fine, community punishment (taakstraf) or even imprisonment. Additional punishments may also be imposed, such as an obligation to temporarily cease business operations.

Please note that the administrative and criminal enforcement can coincide in certain circumstances. As a result, offenders could be subject to administrative remedial sanctions and a criminal prosecution simultaneously.

Thirdly, civil liability plays a role when an environmental breach causes an unlawful act towards a third party – eg, in the case of harmful pollution or hindrance. Civil liability could lead to the obligation to pay damages to the aggrieved party. In order for a successful civil claim on the basis of an unlawful act, the unlawful act must have caused damages, and there must be a causal relation between the unlawful act and this damage. In addition, the violated provision must be designed to protect against this damage.

Civil Liability

On the basis of Article 3:310 of the Dutch Civil Code, in conjunction with Article 6:175, the expiry date for a legal claim for compensation of damages or a contractual fine as a result of pollution of the air, water or soil is five years. This period commences the day following the day on which the aggrieved party became aware of (i) the damage or the enforceability of the claim and (ii) the identity of the party liable for the damage. Regardless of these conditions being fulfilled, the claim expires 30 years after the incident in any case.

Criminal Enforcement

The expiration of the period during which criminal enforcement is possible depends on the maximum sentence of that violation. For environmental offences/crimes, this means that the expiry period varies, but will expire 12 years after the violation at the latest.

Administrative Enforcement

The power to enforce an illegal situation does not "expire" after a specific period of time. In principle, administrative bodies will maintain their power to impose enforcement measures on an offender.

Third Parties/Legal Successors

If an order subject to penalty is imposed by an authority, that authority can decide that this measure will automatically apply to a possible legal successor if a legal basis for this approach is present (which is the case in the GEPA, for example). As a result, the legal successor faces the risk of having to pay a penalty.

In the event of soil pollution, a party could be ordered by an authority to investigate or remediate the pollution. Generally speaking, this party will also carry the costs of the remediation. In most cases, this party is the owner of a polluted property or land, but it could also be the leaseholder. This, however, does not have to be the party that caused the pollution. Recourse against the party that did cause the pollution may be possible on the basis of civil law or in the purchase agreement.

As the new owner of real estate or land could face such enforcement measures, it is very important to perform thorough due diligence on environmental topics during the acquisition process.

Please see 5.1 Liability for Historical Environmental Incidents or Damage regarding the different types of liability under Dutch law. If an offender faces one of these liabilities, the key defences, limits and conditions to such liability are as follows:

• expiration periods in civil and criminal law (verjaring);
• in the case of criminal liability, an argument that the offender did not deliberately commit the offence (in light of the distinction between infringements and crimes);
• in the case of civil liability, an argument that there is no causal relation between the unlawful act and this damage; and
• in the case of administrative liability:
1. a challenge of the lawfulness of the manner in which the authority exercised its powers;
2. a challenge of the evidence of the offence or incident; or
3. an argument that the enforcement is disproportionate to the interests that it serves.

A general civil liability is assumed for any person causing damages through a breach of environment law. This general liability is supplemented in specific legislation related to specific topics, such as asbestos, soil contamination or hazardous substances.

No specific rules apply for corporate entities. With respect to administrative or criminal fines, the type and size of the violator can be relevant, as the proportionality of the punishment can be connected to the size/entity of a company (eg, big corporations are subject to higher fines than a shopkeeper acting on their own).

Shareholders or a parent company cannot generally be liable for environmental damage or breaches of environmental law of the violating company in which they have a share and/or their subsidiaries as such, unless the shareholder/parent company qualifies as the "factual manager" of the violating company or in the case of unification with the violating company. This may be the case for a single or majority shareholder who is also the executive/statutory director of the violating company.

A factual manager (ie, a natural person who does not have to be a statutory director or executive) can be held liable (next to the violating company itself) if it was responsible for a breach, where it had the means and opportunity to prevent the breach from occurring but the breach occurred nonetheless. It is a relatively high standard and is not often successfully demonstrated in court by a public prosecutor.

Statutory directors can be held liable for the proper performance of their duties and for the general course of affairs. A director who is culpable of a serious imputable act in relation to the performance of their duties as a director can be held liable next to the company itself. It is, however, a high threshold more commonly invoked in matters relating to corporate law and statutory governance or bankruptcy.

As stated in 6.2 Shareholder or Parent Company Liability, a factual manager (a natural person who does not have to be a statutory director or executive) can be held liable (next to the company itself) if it was, in short, responsible for preventing the breach occurring and it occurred nonetheless, where it had the means and opportunity to prevent the breach from occurring. It is a relatively high standard and is not often successfully demonstrated in court by a public prosecutor.

The fines are not different for a specific violation, but as the "factual manager" is always a natural person, natural persons might be sanctioned differently (ie, with lower fines) than the company as violator.

The company (or its directors and/or officers) can take out a directors and officers (D&O) insurance policy providing coverage for liabilities based on acts and omissions committed or omitted by the directors and officers. However, depending on the insurer and the policy, D&O insurance may exclude claims resulting from or based on, inter alia, the actual, alleged or threatened disposal, emission or escape of environmental contamination substances.

Furthermore, exclusions may apply with respect to penalties for the breach of environmental law.

Generally, lenders will not be liable for the borrower’s environmental actions or property, unless factual management is present or such is explicitly agreed upon. If the lender becomes the owner of the borrower’s properties (eg, land, company), relevant liability connected to that property may be transferred, such as liability relating to soil contamination or permit compliance (for aspects of the environment, water, safety, etc).

The lender should refrain from exercising control or influence in the day-to-day management decisions of environmental aspects.

Apart from contract liability, civil claims for compensation in environmental-related cases are generally brought on the basis of an unlawful act. Typically, compensation can be awarded in the event of unlawful nuisance and violation of a permit, as well as based on a certain duty of care arising from specific environmental legislation (eg, relating to soil protection) or even an "unwritten" duty of care. For instance, in Dutch case law, it was accepted that the Dutch state has a duty of care to take adequate measures to protect its citizens from the consequences of climate change. The Dutch Civil Code further provides a basis for the civil liability of professional users and custodians of hazardous substances and dumpsite and mine work operators.

The concepts of exemplary or punitive damages are unknown under Dutch law, so cannot be awarded by courts.

The Netherlands has always been at the forefront of collective redress in Europe. Since the early 1990s, a claim organisation that represents a certain group of interests has been able start a class action to obtain declaratory relief. However, Dutch law did not facilitate a class action for monetary damages until 1 January 2020, when the Act on Collective Damages in Class Actions (WAMCA) entered into effect. Class actions filed after the WAMCA taking effect can relate to monetary damages (allegedly) caused by events on or after 15 November 2016.

A class action can be litigated through the competent Dutch civil court. The same rules apply for all class actions, regardless of whether monetary relief is sought and the legal grounds for damages. As a starting point, the judgment in a class action is binding on all Dutch residents that fall within the scope of the claim organisation, with the exception of those residents that opted out.

A landmark case that is expected to set an important precedent within other countries is the Urgenda case – also known as the "Climate Case" – in which a class action was initiated by the Urgenda Foundation (on behalf of 886 Dutch citizens) against the Dutch state. Both the District Court and the Court of Appeal of The Hague held the Dutch state liable for not taking adequate measures to protect its citizens from the consequences of climate change, and ordered the Dutch state to take additional measures to further reduce the emission of greenhouse gases (GHGs) in the Netherlands by at least 25%, compared to 1990, before the end of 2020. On 20 December 2019, the Dutch Supreme Court confirmed that not reducing emissions accordingly will lead to a breach of the Dutch state’s duty of care towards citizens (constituting a wrongful act). As a result, the earlier order of the Court of Appeal in The Hague has now become final.

Another landmark case in the private sector is the Shell case. On 26 May 2021, the Hague District Court ordered Shell (previously: Royal Dutch Shell), both directly and via its group companies, to limit its CO₂ emissions by at least net 45% by the end of 2030, relative to 2019 levels. This class action was brought in 2019 by Friends of the Earth Netherlands (Milieudefensie), amongst others. The Court has come to the conclusion that Shell is obliged to ensure through the Shell group's corporate policy that the CO₂ emissions of the Shell group, its suppliers and its customers are reduced. This follows from the unwritten standard of care applicable to Shell, which the Court has interpreted based on the facts, widespread consensus and internationally accepted standards. Shell has an "obligation of result" with respect to the Shell group's CO₂ emissions. In regard to its suppliers and customers, Shell has a material "best-efforts obligation", which means that Shell must use its influence through the corporate policy for the Shell group – for instance, by setting requirements on suppliers in its purchasing policy. Shell appealed the judgment of the Hague District Court, and a judgment of the Court of Appeal is not expected until 2024.

Generally, under Dutch law, civil liability for damages and breaches of law can be limited by means of indemnities and other contractual arrangements between parties, such as buyers and sellers. However, invoking a limitation of one’s liability or any other contractual arrangement causing the transfer or apportionment of liability can be rejected if it is considered unacceptable according to the standards of reasonableness and fairness, or if it is in violation of law, public order or morals. Indemnities and other contractual arrangements between parties do not affect the parties’ liability to regulators.

Environmental liability insurance is offered for corporate liability issues. Such insurance is additional to the general corporate liability insurance that frequently excludes or limits these types of risks.

In the Netherlands, it is also possible to take out environmental damage insurance covering the financial risks of environmental damage, such as surface water or soil contamination. Generally, such insurance provides coverage for the environmental damage on your own plot and any adjacent plot, provided that the contamination originated from your plot. Liability is not required for this coverage.

Dutch soil protection is governed by both soil protection legislation (SPA) and environmental legislation (EMA). Under soil protection legislation, the contaminator can be held responsible for the remediation of a contamination. In cases where the contamination was caused prior to 1987 (when the current legislation entered into force), remediation is only required when the contamination is considered severe and the remediation is considered urgent.

Remediation has to be notified to the competent authority. In a substantial remediation, the competent authority has to approve the remediation plan, the evaluation report and, if applicable, the aftercare plan. The competent authority has the possibility to impose remediation orders (depending on the type, size and urgency of the remediation). Also, co-ordinated approaches are possible when a contamination covers a wider area (with multiple owners).

When the soil of an industrial area/parcel is contaminated (up to a point where remediation is required), the owner as such can also be held responsible for the remediation. Although competent authorities generally aim to have the contaminator remediate the soil, if that is no longer possible or feasible, the owner can alternatively be held responsible (at the discretion of the competent authority).

Key Policies

The Netherlands is a member of multiple international treaties regarding climate change, including the Climate Agreement as presented at the Climate Conference of Paris in 2015. The key policies in the Netherlands regarding climate change mainly derive from the objectives as set out in the Climate Agreement of Paris, including the goal to keep anthropogenic global warming below 2˚C. With respect thereto, the key national policy aims to reduce the use of energy sources in general (for instance, by making certain energy-saving measures mandatory) and to promote the use of energy derived from renewable energy resources instead of the use of energy derived from fossil resources.

Key Principles

The key principles regarding climate change have been laid down in the Climate Agreement as published by the Dutch government on 28 June 2019 and the Climate Act of 2 July 2019 (which mainly entered into force on 1 September 2019). The latter Act stipulates that, by 2030, the emission of GHGs must be reduced by at least 49% in comparison with the emission thereof in 1990, and that these gases must be reduced by at least 95% by 2050. However, if other countries participate, the Netherlands wants to raise the EU target to 55% less GHG emissions by 2030.

Following a court decision in a civil procedure initiated by the climate foundation Urgenda against the Dutch State, the emission of GHGs must be reduced by at least 25% by the end of 2020 in comparison to the emission thereof in 1990. As Urgenda believes that the Dutch State is not doing the absolute minimum it should do in order to reduce GHGs, it announced that it will again go to court and demand adherence to the judgment – on pain of a penalty. Furthermore, an alliance of interest groups and more than 17,000 individual claimants, led by Milieudefensie, won a court case they had brought against Royal Dutch Shell Plc, in which the court ordered Shell to reduce its carbon emissions; see 9.4 Landmark Cases. As a result of this ruling, Milieudefensie has indicated that it wants to get to the negotiating table with the major GHG emitters in the Netherlands as soon as possible, to make firm agreements on reducing greenhouse gas emissions and, in the event of insufficient co-operation, to start further legal proceedings.

The Climate Act further stipulates that the Dutch government is obligated to make a "climate plan" that describes how the objectives as determined in the Climate Act can be met in the first ten years following the publication of the plan. This climate plan includes a description of the expected use of energy derived from renewable resources and the measures that should be taken in order to promote the use of energy derived from renewable resources.

The key policy regarding climate change in the Netherlands has also been laid down in an agreement between the Dutch government and multiple organisations – the "Energy Agreement", as published by the Social and Economic Council in September 2013. According to this Energy Agreement, at least 16% of all energy that is produced within the Netherlands must derive from renewable resources by 2023. This agreement further contains multiple arrangements regarding energy-saving measures.

In 2022, the Coal Prohibition Act amendment took effect and applies until the end of 2024. Dutch coal-fired power plants will be allowed to run at no more than 35% of their maximum capacity in the coming years. In the short term, this will ensure a substantial reduction in GHG emissions at coal-fired power plants of around 6-7 Mt.

In 2022, the Dutch government presented the new climate policy programme, which targets 60% GHG reduction by 2030 and describes the main lines of policy for the coming years aimed at the transitions needed for climate neutrality by 2050. In view of the climate goals and the court ruling in the Urgenda case, the government wants to sharply reduce GHG emissions and drive the necessary transitions towards climate neutrality. The policy focuses on making five sectors more sustainable:

• electricity;
• mobility;
• industry;
• built environment; and
• agriculture and land use.

For all sectors, the government sets a residual emission target, which clarifies the maximum amount of emissions that sector can still emit in 2030.

This transition allows companies to buy and sell their allowances. Trading in emissions allowances ("emissions trading") refers to trade in emission capacity: the right to emit certain volumes of GHGs. EU emissions trading is the backbone of the plan to reduce GHG emissions, forcing power plants and industry to buy permits when they emit GHGs, effectively putting a price on pollution. Companies can buy and sell these GHG permits on the EU Emissions Trading Scheme (ETS) as implemented in the EMA.

Key Laws

A key national law related to climate change is the Climate Act (Bulletin of Acts and Decrees 2019/253), as discussed above. Furthermore, the Prohibition of Coal in Electricity Production Act (Wet verbod op kolen bij elektriciteitsproductie) was passed at the end of 2019, which prohibits the use of coal as a fuel within electricity-generating facilities. Reference is further made to the Activities (Environmental Management) Decree (Bulletin of Acts and Decrees 2007, 415), pursuant to which the operator of a facility must implement all energy-saving measures with a return on investment of up to five years. Reference is also made to the Royal Decree of 2 November 2018 (Bulletin of Acts and Decrees 2018, 380), pursuant to which every office within the Netherlands that has a ground floor area larger than 100 m² must have at least the energy label "C" by 1 January 2023.

As indicated in 12.1 Key Policies, Principles and Laws, Dutch policy and legislation have set out the following targets to reduce greenhouse gas emissions within the Netherlands:

• by 2023, at least 16% of all energy that is produced within the Netherlands must derive from renewable resources;
• by 2030, the emission of GHGs within the Netherlands must be reduced by at least 49% in comparison with the emission of GHGs within the Netherlands in 1990;
• by 2030, CO₂ emissions in the Netherlands must be reduced by at least 55%, as a prelude to a climate-neutral Netherlands by 2050; and
• by 2050, the emission of GHGs within the Netherlands must be reduced by at least 95% in comparison with the emission of GHGs within the Netherlands in 1990.

The use of asbestos-containing materials (ACMs) for construction activities has been banned in the Netherlands since 1993. Due to the fact that ACMs were frequently used prior to that date, asbestos is still commonly present in buildings in the Netherlands, especially buildings that were constructed in the 1960s and 1970s. In relation to this ban, the regulatory framework is very much geared towards advancing human health aspects and protecting the general public from the risks associated with ACMs.

However, under Dutch law, there is no obligation to actively remove ACMs that are present in a building, provided that the presence of such ACMs does not entail health and safety risks for the users of the relevant building or for the public in general.

The removal of ACMs will be required in the event of the demolition or (partial) refurbishment of a building containing ACMs. In addition, the removal of asbestos might be required pursuant to the SPA, as noted in 11.1 Key Laws Governing Contaminated Land. In such an event, the Asbestos Removal Decree 2005 stipulates strict rules and conditions for such remediation works, including an obligation to carry out an asbestos investigation prior to the envisaged demolition works. Depending on the amount and type of ACMs found (friable/non-friable), removal might only be allowed by engaging a certified asbestos abatement firm. A register is in place that lists all certified asbestos abatement firms.

With respect to asbestos roofs, a legal ban was recently proposed that would have obliged owners of buildings to remove such roofs by 2024. However, this legislative proposal was defeated in the Dutch Senate in June 2019. Subsequently, an alternative approach was announced on 14 October 2019 by the Minister of Infrastructure and Water Management. As part of the envisaged solution, a fund has been established by the Dutch state, provinces, municipalities and banks, aimed at allowing owners of buildings to finance asbestos remediation on favourable terms in order to stimulate the removal of asbestos roofs. So far, however, this fund is much more limited in size than initially expected, and it remains to be seen whether a more all-encompassing approach will be adopted in the near future.

Apart from the above, the production, import, possession or disposal of ACMs has been prohibited under the Asbestos (Product) Decree (Productenbesluit Asbest), which also provides labelling and packaging requirements for products that are allowed to contain asbestos. Furthermore, strict rules for worker protection have been laid down in the Working Conditions Decree (Arbeidsomstandighedenbesluit), which also applies to the prevention of asbestos-related incidents.

The supervision and enforcement of asbestos-related regulation falls within the authority of either the Human Environment and Transport Inspectorate or the NLA in the event of worker-related potential asbestos contaminations. Non-compliance with the above-mentioned rules and regulations is subject to administrative enforcement measures, as well as penalty fines. Criminal prosecution is also possible for wilful violations resulting in, for example, the death of an employee.

In civil law cases, the statute of limitations is extended to a period of 30 years after the moment when the claimant was exposed to ACMs.

Waste legislation is based upon the implementation of the European Waste Framework Directive (2008/98/EG), which is incorporated in the EMA and elaborated in the national waste management plan. This regulatory framework defines when a product is qualified as waste – ie, "any substance or object which the holder discards or intends or is required to discard".

The EMA contains several prohibitions and regulations, such as a ban on the unauthorised discarding of waste and regulations pertaining to handing over, receiving, transporting and collecting hazardous waste and industrial waste. In short, waste may only be transferred by a discharger/producer to a party that is qualified (registered or permitted) to accept and/or transport waste. The minister, municipalities and provinces can grant exemptions from some of these prohibitions and regulations, if permitted by law.

Finally, the General Environmental Permitting Decree contains a list of activities that are allowed without an environmental permit. If the activity is not included in this list, an environmental permit is required.

In general, the party that disposes of the waste is responsible for the transfer to a qualified person, and for filing (and storing) the required waste transfer forms. If this is not done correctly, enforcement actions can be taken for not disposing of waste in accordance with the law.

The operator of a site or facility that disposes of waste (the producer or importer) has to comply with administrative obligations. The operator of the site or facility needs to specify the following:

• from which type of business or person they accept waste, insofar as is relevant for the acceptance and control;
• which requirements they set for offering waste;
• how they inspect the waste before receipt (mostly visual); and
• how waste that deviates in an environmental hygienically relevant way that is usual for the category concerned is treated.

The operator of such site or facility is responsible for complying with these acceptance and control procedures. The form on which this is documented must be kept for five years.

Specific regulations apply to recycling schemes where a producer of products that will undoubtedly lead to waste (glass bottles, plastic bottles, electronics) will have to take further actions, such as imposing a fee on the consumer or attribution to a recycling system.

There is no general obligation to choose a specific type of waste processing (recycling, recovering or re-using) for a producer of waste. However, there are specific product-related regulations that prescribe to participation in a take-back system or recycle scheme – examples include batteries, some electronic appliances, some types of packaging and car tyres.

The EMA states that "unusual events" with "negative consequences" for the environment should be notified as soon as possible to the competent authority, and measurements must be taken to prevent and/or mitigate the negative consequences. A notification as soon as possible is interpreted rather strictly – effectively, it means right after any emergency services (such as the fire department) have been alerted. Most authorities have dedicated environmental incident "hotlines".

There is no standard threshold regarding how negative the consequences of an incident should be before the incident should be notified. However, as the requirement to notify unusual events with negative consequences for the environment is interpreted quite strictly by the supervising authorities, it is recommended to adopt a "better safe than sorry" strategy in this respect – that is, to err on the side of caution by notifying incidents with even minor negative effects on the environment.

Information on the causes of the incident, the measures that have been taken and the hazardous substances that have been released should be provided with the notification. The obligation to notify applies to the operator of the facility.

Besides unusual events with negative consequences for the environment, energy efficiency audits should be notified on the basis of the European Energy Efficiency Directive (as implemented in the Netherlands). These audits should generally be carried out once every four years. After such audit has been carried out, an energy audit report should be provided to the competent authority.

Also, in some cases, larger facilities are obliged to file annual environmental reports in accordance with the Pollutant Release and Transfer Register Directive, as implemented in the Netherlands.

In the Netherlands, as of 1 May 2022, the Open Government Act (Wet Open Overheid – Woo) regulates the right to access information from public bodies. The Woo applies to information held by public bodies that is by its nature related to the public duty.

In general, information held by public bodies will be provided if it is requested in a so-called Woo request, unless an exception as provided for in the Woo applies. These exceptions include that the disclosure of this information would:

• include confidential business and manufacturing data;
• infringe the private life of one or more individuals; and
• result in the disproportionate favouring of certain involved parties.

With respect to environmental information, the Woo applies a specific regime that ensures a wider disclosure regime compared to other information concerning administrative matters (following from the Aarhus Convention). The Woo contains restrictions for environmental information in terms of applying the statutory grounds for refusal:

• if the confidential business and manufacturing information (absolute ground for refusal) qualifies as environmental information, a balance of interests must still be made;
• disclosure of environmental information can only be refused because of the economic and financial interests of public bodies, when the information relates to acts of a confidential nature;
• disproportionate favouring of certain involved parties cannot be applied to environmental information; and
• the absolute and relative grounds for exception do not apply to emissions data – environmental information relating to emissions data must be disclosed to the public.

Article 2:391 of the Dutch Civil Code states that corporations should include an analysis of their non-financial performance in their annual report, such as their performance regarding the environment. This obligation is further regulated in the decree on the publication of non-financial information (Besluit bekendmaking niet-financiële informatie).

This decree states, amongst other things, that legal entities that meet certain conditions (such as having more than 500 employees) are required to publish a non-financial clarification, which includes information on the policy, the applied due care procedures and the results thereof concerning, for example, environmental matters.

If the corporation involved does not have any policies with respect to the environment, it should include in its annual report a reason for not having such policies.

In transactions where shares or assets in real estate and companies are transferred, vendor due diligence is usually performed.

For real estate transactions (depending on the deal), both zoning and permit review is usual, focusing on property-related aspects such as zoning compliance, building requirements and fire safety. Depending on the asset or share transfer of the property, a different review might be performed.

For M&A transactions (and, to a lesser extent, finance deals), environmental due diligence is performed on aspects of compliance and permits for health, safety and environment aspects. An increasingly applied mechanism in M&A transaction is a warranty and indemnity insurance that also covers most of the environmental aspects (although usually excluding soil aspects).

Depending on the target (and its environmental activities) and character of the deal (asset or share), several environmental aspects can be reviewed, such as:

• the presence of and compliance with permits and approvals;
• the enforcement actions completed, pending or announced;
• site-related aspects (zoning, soil, asbestos, occupational safety, etc); and
• production-related aspects (chemicals, product safety, reporting requirements, etc).

A seller is not generally required to disclose any environmental information to a purchaser, although there might be a duty to disclose information that is specifically requested by a potential purchaser. Once a purchaser explicitly indicates it is interested in particular information (eg, relating to the environment), the seller is obliged to provide that information (to a reasonable extent), to prevent the seller from being liable for misinforming the purchaser.

In the Netherlands, several types of taxes are in place in order to meet the objectives as set out in the Dutch climate policy and legislation. These taxes generally aim to discourage the use of (energy) resources.

Taxes on Energy

Users of natural (compressed) gas pay energy tax for every cubic metre of natural (compressed) gas used. Users of electricity pay energy tax for every kWh used. Energy taxes are charged by the energy suppliers, who in turn pay the energy taxes to the tax authorities. It is possible to claim back energy taxes under certain conditions, such as if the natural (compressed) gas or electricity is used to generate electricity.

A tax reduction applies to the natural (compressed) gas or electricity that is necessary to fulfil the basic needs of the user. Furthermore, legal entities and natural persons who generate electricity for their own use by means of solar panels are exempted from the obligation to pay energy tax.

Taxes on Air Pollution

A CO₂ tax or carbon tax was introduced in the Netherlands on 1 January 2021, whereby all sites that fall under the European Emissions Trading System (EU-ETS) are subject to a carbon tax. Waste incineration plants and industrial businesses emitting significant volumes of nitrous oxide are also affected by this tax. The carbon tax does not apply to certain applications, such as the capture and storage of CO₂. As part of the Tax Plan 2023, the part of the emissions that are currently exempt will be reduced, meaning that industrial businesses that emit too much CO₂ will pay more taxes than they currently do.

Taxes on Tap Water

In the Netherlands, taxes apply to the use of tap water. From 1 January 2015, taxes on tap water have only applied on the first 300 mᵌ used. These taxes are charged by the water suppliers, who in turn pay the taxes to the tax authority.

Taxes on Waste

Companies in the Netherlands with a waste incinerator must pay waste taxes for every 1,000 kg of incinerated waste, and must report the total amount of incinerated waste to the tax authorities in their yearly tax return declaration. Companies transporting their waste to foreign countries to have it dumped or incinerated also face taxes. In that way, an equal system applies to all waste that was produced in the Netherlands, regardless of where it will be processed. With these taxes, the government encourages businesses to recycle materials instead of incinerating them.

Flight Taxes

Since 1 January 2021 a national flight tax applies to all individual passengers departing from a Dutch airport. The flight tax currently amounts to EUR7.95 per flight, with the aim of encouraging individuals to make environment-conscious decisions, and to enhance sustainability in the aviation sector by reducing the CO₂ deposition. As part of the Tax Plan 2023, the government aims to increase the flight tax by EUR18.48; if approved by the Lower and Upper Houses of the Dutch Parliament, the increased tax rate of EUR 26.43 per passenger will apply as of 1 January 2023.