Unlocking New Legal Avenues: Dutch Court paves the way for preliminary relief in climate enforcement litigation

In the spring of 2024, Greenpeace initiated preliminary relief proceedings against the Dutch State regarding the Dutch State’s nitrogen deposition policies. These proceedings were initiated in addition to the main proceedings already pending between the Dutch State and Greenpeace. In these main proceedings, Greenpeace seeks, among other things, a declaratory decision that the Dutch State acts unlawfully against Greenpeace with its current nitrogen deposition policies.

On 6 June 2024, the preliminary relief judge of the District Court of The Hague rendered its judgment (“Judgment”) in the preliminary relief proceedings, rejecting Greenpeace's request to compel the Dutch State to develop and implement a nitrogen deposition reduction plan.

The Judgment highlights the complex balance that must be struck in environmental litigation. Courts must consider not only the potential environmental damages due to inaction but also the discretion afforded to states in managing these issues.

Although several hurdles were identified by the preliminary relief judge, the Judgment confirms that climate litigators are free to initiate preliminary relief proceedings to enforce specific climate actions, even alongside ongoing main proceedings.

Greenpeace vs the Dutch State: policy on deposition of nitrogen

On 23 July 2023, Greenpeace initiated legal proceedings against the Dutch State before the District Court of The Hague. Greenpeace argues that the current measures to combat nitrogen emissions are insufficient, leading to a progressive environmental degradation. According to Greenpeace, ecological research has shown that by 2025, nitrogen deposition values for 18 habitat types and 3 habitats, and by 2030 for 20 habitat types and 4 habitats, should be below the critical deposition values that those ecosystems can tolerate without significant damage (“CLV”).

In these main proceedings, Greenpeace seeks a declaratory decision that the Dutch State acts unlawfully towards Greenpeace by violating its obligations under the Habitats Directive (Directive 92/43/EEG), which Greenpeace contends includes an obligation to timely reduce the deposition of nitrogen in certain habitats. Furthermore, Greenpeace requests a court order requiring the Dutch State to reduce nitrogen deposition in these habitats below the CLVs.

Greenpeace seeks preliminary relief to order reduction of nitrogen deposition

On 15 March 2024, Greenpeace also initiated preliminary relief proceedings against the Dutch State, seeking an immediate provisional ruling on its nitrogen policy. Greenpeace argued that urgent action is necessary to protect the most vulnerable habitats in the Netherlands, listed on the so-called 'Red List', which could suffer irreversible damage by the time a judgment in the main proceedings is rendered.

In these preliminary relief proceedings, Greenpeace requested that the Dutch State be ordered to develop and implement a nitrogen deposition reduction plan within three months of the preliminary relief judgment being served upon it.

In the Judgment, the preliminary relief judge first assessed whether Article 256 of the Dutch Code of Civil Procedure was met. This provision mandates the rejection of relief if the dispute is unsuitable for resolution in preliminary relief proceedings. The Dutch State contended that this dispute was unsuitable for resolution in these proceedings due to the complexity of the case and the profound implications a favourable decision would have on third parties not involved in the proceedings. However, the preliminary relief judge disagreed, and considered that despite the fact that the dispute at hand is both extensive and complex, it can still be subject to resolution in preliminary relief proceedings. The preliminary relief judge emphasised that it is the duty of the preliminary relief judge to evaluate the legal relationship and consider all relevant interests and circumstances – including the factual and legal complexity of a case – to determine whether providing preliminary relief is appropriate.

Subsequently, the preliminary relief judge addressed the substantive dispute. The preliminary relief judge started by recognising both parties' acknowledgement of the need to reduce nitrogen deposition to prevent further damage to sensitive Dutch habitats. However, the preliminary relief judge also noted the extensive measures required for significant nitrogen deposition reductions, which would also inevitably affect the interests of third parties. Moreover, the preliminary relief judge considered that the Dutch State is afforded a significant degree of discretion in formulating its nitrogen policy, and that judicial intervention is limited to clear cases of unlawful action. This includes scenarios where the Dutch State contravenes legislation that is of a higher status than its own national laws.

Ultimately, the preliminary relief judge rejected Greenpeace's request for preliminary relief, noting the absence of any legislation higher than Dutch national laws that mandates nitrogen reduction. In fact, EU law allows Member States the autonomy to determine the best methods to prevent habitat deterioration. Despite Greenpeace's arguments, the preliminary relief judge concluded that there was insufficient basis under EU law to compel the Dutch State to reduce nitrogen deposition on habitats listed under the 'Red List' by the end of 2025.

Conclusion

The Judgment underscores both the potential and limitations of using preliminary relief proceedings to enforce specific climate actions within the Netherlands. Despite the inherent legal and factual complexities of environmental policies, the Judgment clarified that these complexities do not preclude a preliminary relief judge from issuing preliminary measures. This consideration may open the door for similar preliminary relief proceedings in future climate cases.

Furthermore, the Judgment illustrates the judiciary's cautious approach when mandating immediate and significant environmental actions, particularly where the defendant has discretionary power in fulfilling its obligations. In this case, the preliminary relief judge placed significant weight on the Dutch State's broad discretion in formulating policies to meet its legal commitments. This discretion significantly limits a preliminary relief judge's ability to impose specific reduction obligations.

Although these proceedings were initiated against the Dutch State, the implications of this Judgment could also be relevant to private companies. That said, it should be noted that these companies are subject to less authoritative sources of law.

The long-term impact of the Judgment on the Dutch climate litigation landscape remains to be seen. However, its immediate relevance in setting procedural precedents and shaping judicial approaches to environmental enforcement is indisputable.