8.2 Summary

Documentgegevens:

Mr. J.H.G. van den Broek, datum 01-12-2012

Datum: 01-12-2012
Auteur: Mr. J.H.G. van den Broek
JCDI: JCDI:ADS359701:1
Vakgebied(en): Ruimtelijk bestuursrecht (V)
Milieurecht (V)
Omgevingsrecht (V)

Chapter 1 contains the central question of this study: are the proposals to restructure the system of environmental law through clustering (merely) a political choice or does it also meet requirements that may be set scienti-fically for restructuring environmental law?

Inordertoanswerthiscentralquestion, answers were sought to the following three subquestions:

1.: Is there, or is it possible to scientifically develop, an assessment frame-work which can predict in what case or cases clustering of environmental law is justified?
2.: How does the clustering by rearrangement which, in 2010, led to the Environmental Permitting (General Provisions) Act (Wet algemene bepalingen omgevingsrecht), the clustering which, in 2008, led to the integration of the Chemical Substances Act (Wet milieugevaarlijke stoffen) into the Environmental Management Act (Wet milieubeheer), the clustering by rearrangement, proposed by the government in 2010, that is to result in a Nature Protection Act, and the proposed clustering by rearrangement that is to lead to the Environmental Planning Act (Omgevingswet) relate to this assessment framework?
3.: As regards the clustering projects mentioned under subquestion 2, can proposals be made to the effect that the restructuring of environmental law links up better with the criteria (to be developed) for clustering environmental law?

In answering these questions, I have confined myself to possible legal criteria for a decision to proceed with clustering. The assessment framework was developed after studying 'classical' legal sources, including legal litera-ture and the legislative history of those parts of environmental law in which law systems were clustered. In addition, the research method of interviewing a number of legislative drafters and scholars was used. In this way, I tried to take a better look behind the legislative scenes to test the results of the literature review against the reality of the legislative activities at the Ministries.

In Chapter 2, the conceptual framework used in this study is explored. Central to this study are the concepts of 'law system' and 'law system deficiency'.

I define a law system as: a consistent system of rules ordered on the basis of certain criteria. A distinction can be made between the procedural and substantive aspects of a law system. In a procedural approach to a law system, the focus is on the 'visible' aspects of the restructuring. In a substantive approach to a law system, the focus is on the content aspects of the restructuring criteria and the inner consistency. To answer the question of when clustering of environmental law is scientifically justified, it is important that the consistency within a law system links up with the reality as experienced by the users of the law system, so my research is focused on the substantive aspects of law systems.

A law system deficiency occurs if certain rules are consistent but never-theless do not form part of the same law system. To create consistency between law systems, the legislator can use the following instruments:

-: coordination: consistency between two or more law systems is created by means of a new legal arrangement whereby the two or more law systems continue to exist side by side;
-: harmonisation: consistency between two or more law systems is created by allowing them to continue to exist as such while adapting them to each other;
-: integration: consistency between two or more law systems is created by entirely integrating one law system into another and abrogating the system that has been integrated;
-: rearrangement: consistency between two or more law systems is created by integrating those law systems into one new law system and subse-quently abrogating (parts of) the constituting law systems;
-: consolidation: consistency between a law system and all subsequent amendments in the form of (parts of) law systems by incorporating the original law system and its amendments unchanged into one single law system.

This study is confined to the clustering of environmental law: combining law systems resulting in a new law system. This is the case only with integration and rearrangement.

Clustering can take place at different legislative levels (i.e., statutes, orders in council, and ministerial regulations). Horizontal clustering is the clustering that is limited to law systems of the same level. If two or more levels are involved, I speak of vertical clustering.

Clustering can be modifying or codifying. The purpose of modifying clustering is to change the existing law. Codifying clustering is not aimed to change the law. Codifying clustering therefore may entail that the rules to be combined are not exactly the same but are incorporated into the new, clustered law system with a few purely editorial changes.

In Chapter 3, a scientific framework is developed that shows in what cases clustering of environmental law can be scientifically justified. A law system does not qualify as a law system unless it meets the consistency criteria. These criteria have three important effects: they determine the law system, the law system deficiencies, and the solutions to the problem that the legislator aims to remedy with a law system. Unless an iLawsystem is involved, the legislator must make a choice from among an almost unlimited number of restructuring criteria to achieve consistency of the rules in environmental law. Practical restructuring criteria and typically legal re-structuring criteria may be involved.

I define an iLawsystem as a law system designed in such a way that the user, by means of a computer program, can generate his own law system as it were, on the basis of a consistency criterion that is relevant to him at that particular moment. For example, if a person wants to build a house and needs to know what environmental planning rules apply, it would be possible for him, at the press of a keyboard button, to access all the rules applicable to building and construction work as one law system. This is not merely about making environmental planning law available through digital technologies, but about making environmental planning law accessible in a way that enables the user to easily generate law systems on the basis of different criteria.

The choice for one or more consistency criteria is not purely politically determined, but may be scientifically underpinned. The first thing to be taken into account is the most important function of a law system: making the information contained in the written law accessible. Apart from the content of the constituting rules, a law system is important for the knowability of environmental law. Moreover, a law system must be problem-oriented;this means that a person who consults environmental law to find an answer concerning his rights and obligations is directed to the place in the law system itself where the answer can be found. To aid knowability and problem-orientedness, the legislator should opt for consistency criteria that link up with the consistency experienced by the users of environmental law in the real world and that can be understood without any specific legal knowledge. This means that the legislator must opt for such reality-based, practical consistency criteria as subjects, objects, activities, and the physical living environment. This is a crucial requirement for scientifically justified clustering.

However, the choice for a particular consistency criterion entails by defini-tion that clustering elsewhere in environmental law allows law system deficiencies to continue to exist; it may even create new deficiencies. The following categories of problems can be distinguished in this context:

-: clustering on the basis of reality-based, practical consistency criteria can entail that certain law system deficiencies are only partly remedied;
-: clustering on the basis of reality-based, practical consistency criteria can entail that certain law system deficiencies are partly or completely remedied, but that it creates deficiencies in other law systems;
-: clustering on the basis of typically legal consistency criteria can entail that law system deficiencies are preserved or created in a certain law system that was clustered on the basis of reality-based, practical consistency criteria. This may involve internal and external law system deficiencies.

An internal deficiency may arise if typically legal consistency criteria are used within the above-mentioned law system. An external deficiency may arise if the application of typically legal consistency criteria implies that certain rules are not part of that law system.

Clustering is not justified if the creation or continued existence of these law system deficiencies cannot be justified.

Codifying clustering ought to be the point of departure since clustering should be aimed first and foremost at the elimination or reduction of law system deficiencies rather than at the content of the rules to be clustered. However, clustering is also scientifically justified if small but also major modifications are made. In the latter case, the legislator must make sure that the effect may be that possible benefits of clustering are restricted as a result of the modification. Furthermore, the legislator runs the risk that the social acceptance of clustering is reduced or completely evaporates because of resistance to one or more modifications.

Finally, the legislator must make sure that a clustered law system is future-proof. By this I mean that no - unjustifiable - law system deficiencies arise because the legislator is largely forced to use a chronological approach. The legislator can make legislation more future-proof by striving for a law system that does not pretend to codify environmental law once and for all, and by aiming for a law system that is change-oriented and, if possible, iLawsystem-oriented. Rules can furthermore be made more future-proof by using future-proof, reality-based, practical or typically legal system restruc-turing criteria which may be expected to be valid also in the future. The legislator must take care that new environmental rules that are aimed to remedy a certain problem link up with the law system restructuring criteria chosen. The use of legislation in tranches (aanbouwwetgeving) that meets the requirements set in this Chapter for the choice of restructuring criteria may also contribute to a future-proof result.

Given the above, I have developed the following assessment framework. By answering the following five questions, the legislator can check whether the clustering of particular pieces of environmental law is justified.

1.: Is there a law system deficiency within Dutch environmental law because some rules do not form part of the same law system even though they are consistent according to a reality-based, practical consistency criterion?
2.: If so, can this law system deficiency be remedied or reduced by clustering law systems through rearrangement or integration?
3.: Do law system deficiencies arise or continue to exist after the application of the typically legal restructuring criteria? If so, can these deficiencies be justified?
4.: Does clustering create law system deficiencies in other law systems or does it allow the deficiencies to continue to exist? If so, can these deficiencies be justified?
5.: Does the clustering lead to a future-proof law system?

If the answer to questions 1, 2, and 5 is positive and to questions 3 and 4 negative, I consider clustering justified. If the answer to questions 3 and 4 is positive, but the answer as to the justifiability of the observed law system deficiencies is positive, then clustering is likewise justified.

It will be necessary to look at the results of application on a case-by-case basis. Moreover, I am aware of the fact that the criteria cannot be clearly defined in all cases. Opinions on their application may diverge considerably as a result. However, we now have a compass, so that we may avoid losing our way. This answers the first subquestion of this study.

The subject of Chapter 4 is how the rearrangement that led to the Environ-mental Permitting (General Provisions) Act (hence: Environmental Permit-ting Act) of 1 October 2010 relates to the criteria developed in Chapter 3. In this context, the five questions of the assessment framework mentioned above were answered as follows.

1.: Before the Environmental Permitting Act came into operation, there was a law system deficiency within Dutch environmental law because not all rules formed part of the same law system even though they were consistent according to a reality-based, practical consistency criterion (viz., an area-specific project that consists ofone or more activities that affect the physical living environment). The answer to the first assess-ment question is therefore positive.
2.: The Environmental Permitting Act has reduced this law system defi-ciency, but failed to completely remedy it. This reduction was realised by incorporating a large number of authorization decisions for a project into the law system of the Environmental Permitting Act. There are still law system deficiencies because the Environmental Permitting Act does not contain all rules as regards a project or as regards all activities within a project that require an integrated environmental permit. Moreover, the Environmental Permitting Act does not require an integrated environ-mental permit for a number of activities within a project. Some of these deficiencies can be remedied relatively easily. The answer to the second assessment question is therefore mainly negative.
3.: In the Environmental Permitting Act, the application of typically legal restructuring criteria like providing general as well as specific rules, setting standards in multiple phases, and referring to the European IPPC Directive1maintains law system deficiencies, which are in most cases justifiable but may be easily reduced by the legislator. The answer to the third assessment question is mainly positive.
4.: Law system deficiencies in the Environmental Management Act (Wet milieubeheer) have arisen as a side effect of the Environmental Permitting Act, since important provisions on establishments in the Environmental Management Act have ceased to apply. In my opinion, this deficiency is not justifiable and can only partly be remedied by incorporating the relevant provisions from the Environmental Management Act into the Environmental Permitting Act. A real solution, in my view, would require a new law system, on the basis of the 'physical living environment' consis-tency criterion, in which the provisions of the Environmental Permitting Act and the Environmental Management Act are rearranged. The answer to the fourth assessment question is therefore positive.
5.: The Environmental Permitting Act is geared towards permanent change and its future-proofness is enhanced by the use of future-proof, practical and typically legal system restructuring criteria, provided that the legislator also follows these criteria when changes are made in the future. The answer to the fifth assessment question is positive.

It is true that the Environmental Permitting Act represents an important contribution to reducing the number of law system deficiencies in environ-mental law that had existed until 1 October 2010, but the above answers mean that the rearrangement in its present form only partly meets the criteria I developed for justified clustering. If - for example, in the framework of a new Environmental Planning Act (Omgevingswet) - the legislator succeeds in remedying the law system deficiencies resulting from the clustering in the law system of the Environmental Permitting Act and in other law systems such as the Environmental Management Act, the clustering could be fully justified after all. In Chapter 4, a number of suggestions for improvement were made.

In Chapter 5, the integration of the Chemical Substances Act (Wet milieugevaarlijke stoffen) into the Environmental Management Act on 1 June 2008 is discussed on the basis of the five assessment questions and tested against the criteria developed in Chapter 3.

1.: Before the integration of the Chemical Substances Act into the Environ-mental Management Act, there was a law system deficiency within Dutch environmental law because not all rules formed part of the same law system even though they were consistent according to a reality-based, practical consistency criterion (viz., substances). Substances are defined as 'chemical elements and their compounds in the natural state or obtained by any manufacturing process with an impact on the environment or human health'. The answer to the first assessment question is therefore positive.
2.: The integration of the Chemical Substances Act into the Environmental Management Act has remedied this law system deficiency. This was realised by incorporating all provisions from the Chemical Substances Act that did not need to be discontinued into the Environmental Management Act. Other law system deficiencies may have remained unchanged by the integration process. The answer to the second assessment question is therefore also positive. However, it must be noted here that the law system deficiency that existed on 31 May 2008 had been created a year earlier by the legislator itself because it had not implemented REACH2 into the Chemical Substances Act, but into Chapter 9 of the Environmental Management Act. Although it would require further research, it is very likely that implementation of REACH into the Chemical Substances Act would not have led to the law system deficiency that was remedied by means of the clustering by integration.
3.: When the Chemical Substances Act was integrated into the Environ-mental Management Act, typically legal restructuring criteria were used, for example, typically legal concepts, providing general as well as specific rules, and setting standards in multiple phases. As a result, law system deficiencies were created or continued to exist. In most cases, the deficiencies identified can be justified, even though the legislator could easily have remedied or reduced a number of the deficiencies. Therefore, the answer to the third assessment question is mainly positive.
4.: No new law system deficiencies have arisen outside the Environmental Management Act as a result of the integration. The answer to the fourth assessment question is therefore negative.
5.: The integration of the Chemical Substances Act into the Environmental Management Act does not pretend to lay down the environmental law on substances once and for all but, on the contrary, is aimed at permanent change. The future-proofness is increased by the use of future-proof, practical and typically legal system restructuring criteria, that is, if the legislator continues to apply these criteria for future changes. Assess-ment question five is thus answered positively.

These answers imply that the integration of the Chemical Substances Act into the Environmental Management Act contributed to reducing the law system deficiencies that existed in environmental law until 1 June 2008. They also show that the integration of the Chemical Substances Act into the Environmental Management Act in its present form only partly meets the criteria I developed for justified clustering. This means that clustering cannot be completely justified. There is room for improvement; a number of suggestions were explored in Chapter 5.

In Chapter 6, the Nature Protection Bill (ontwerp Wet natuurbescherming), published on 6 October 2011, which is aimed to rearrange the legislation set out in the Nature Conservation Act 1998 (Natuurbeschermingswet 1998), the Flora and Fauna Act (Flora- en faunawet), and the Forestry Act (Boswet), is discussed on the basis of the five assessment questions and tested against the criteria developed in Chapter 3.

1.: At the moment, there is a law system deficiency within Dutch environ-mental law because not all rules form part of the same law system even though they were consistent according to a reality-based, practical consistency criterion (viz., nature). The answer to the first assessment question is therefore positive.
2.: The rearrangement of the Nature Conservation Act 1998, the Flora and Fauna Act, and the Forestry Act forming the Nature Protection Bill remedies this law system deficiency. This is achieved by incorporating all provisions of these three Acts that did not need to be discontinued into the Bill and abrogating these Acts. The answer to the second assessment question is therefore mainly positive.
3.: In drafting the Nature Protection Bill, typically legal restructuring criteria were used, like structure, setting standards in multiple phases, and referring to European Directives and Regulations. As a result, law system deficiencies will be created or will continue to exist. A number of the deficiencies identified cannot be justified and require further research. The legislator will probably be able to remedy some of the deficiencies quite easily. The answer to the third assessment question is mainly negative.
4.: Incorporating the provisions of the Nature Conservation Act 1998, the Flora and Fauna Act, and the Forestry Act into the Bill and abrogating those three Acts will not lead to law system deficiencies as a result of clustering through rearrangement. The fourth assessment question can thus be answered negatively.
5.: The Nature Protection Bill is not meant to lay down the environmental law on nature once and for all but, on the contrary, is aimed at permanent change, already taking into account the anticipated Environ-mental Planning Act. Its future-proofness is increased by the use of future-proof, practical and typically legal system restructuring criteria, that is, if the legislator continues to apply these criteria for future changes. Assessment question five can be answered positively.

These answers imply that the proposed rearrangement of the Nature Conservation Act 1998, the Flora and Fauna Act, and the Forestry Act to form the new Nature Protection Bill will indeed contribute considerably to reducing the currently existing law system deficiencies in environmental law, but that the rearrangement in its present form only partly meets the criteria I developed for justified clustering. There is still room for improve-ment; suggestions to this effect were made in Chapter 6. If the legislator were to succeed in implementing such law system improvements in the Bill that the answer to the second and third assessment questions were positive, the overall judgment would possibly be in favour of the Bill.

The subject of Chapter 7 is to what extent the five assessment questions can be helpful in developing the rearrangement aimed to culminate in the Environmental Planning Act (Omgevingswet) outlined in the Cabinet letter dated 9 March 2012.3 The Environmental Planning Act will be the product of the full integration of fifteen existing statutes, the full abrogation of two statutes, and the incorporation of the environmental planning elements from approximately 25 other statutes. This exploration has led to the following results.

1.: The main purpose of the Environmental Planning Act is to achieve a safe and healthy living environment and to maintain, manage, use, and develop it in an effective and sustainable way. If the consistency criterion physical living environment is taken as a point of departure, it seems to me that the effect will be a law system deficiency because not all rules form part of the same law system even though they are consistent according to a reality-based, practical consistency criterion (viz., physi-cal living environment).
2.: In my opinion, the proposed Environmental Planning Act will in any case reduce the law system deficiency described above by clustering the fifteen law systems, abrogating two law systems, and partially integrating ap-proximately 25 law systems in the area of environmental law. Whether the deficiency will be remedied depends on the law systems that will ulti-mately be involved in the clustering operation. However, it may be expected that the deficiency will not be entirely remedied, and perhaps not even to a considerable extent, following the abrogation of fifteen law systems that also do justice to the consistency criterion physical living environment and the clustering of only parts of 25 named law systems.
3.: So far, it seems that typically legal restructuring criteria will be used in the Environmental Planning Act. The effect will be that law systems deficiencies will be created or will continue to exist. Given the absence of the actual text of the law, it is not yet possible to say whether such deficiencies can be defended.
4.: The law system of the proposed Environmental Planning Act may possibly generate law system deficiencies in other law systems or allow such deficiencies to continue to exist. The reason is that, according to the Cabinet letter, only the environmental planning elements of approxi-mately 25 statutes will be incorporated into the Environmental Planning Act. Given the absence of the actual text of the law, it is not yet possible to say whether such deficiencies can be defended. 5. The question of whether the law system of the Environmental Planning Act is future-proof is also hard to answer because the actual text of the statute is not available yet. The Cabinet letter provides too little information to be able to assess whether the Environmental Planning Act is aimed to codify environmental law once and for all. However, some future-proof consistency criteria have been applied. It is not a case of legislation in tranches: the legislator has not followed the route of first creating the full law system required by environmental law and then chronologically drafting the various parts of the law, putting them immediately in their correct place in the law system. It rather seems that the Cabinet does not wish to divulge - or, and this would be more of a problem: does not have a clearly defined idea - what the contents of the Environmental Planning Act will ultimately be.

In the absence of the actual text of the Environmental Planning Act, only an indication can be given as regards the answers to the five assessment questions. However, I venture the tentative conclusion that, on the basis of the consistency criterion physical living environment, an Environmental Planning Act could make an important contribution to partly reducing the currently existing law systems deficiencies in environmental law. The question to what extent the legislator will succeed in doing so in practical terms can only be answered on the basis of the actual text of the Bill.

My strong advice to the legislator in such an extensive clustering operation would be to explicitly comment on the consistency criteria in the explana-tory memorandum to the Bill and to better safeguard the law's future-proofness by employing the technique of legislating in tranches.

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Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control, OJ L 24, 29 January 2008, pp. 8-29.

Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (RE-ACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396, 30 December 2006, pp. 1-849).

Ministry of Infrastructure and the Environment, Kabinetsbrief stelselherziening omgevingsrecht, 9 maart 2012, Kamerstukken II 2011/12, 33 118, no. 3.