Nature today | The shaky political cycle: green politics in environmental law

To make these visions and programs more effective, consideration could be given to reintroducing old instruments such as central planning decisions and the province’s right to approve municipal zoning plans. The municipalities, in turn, must take higher policy into account.

The introduction of the Environmental Act ensures the growth of political programs

At national level and in provinces and municipalities, a lot of work is currently being done on political documents and political visions for the living environment. This is mainly due to the forthcoming Environmental and Planning Act, which requires elaboration in the form of a national environmental vision (NOVI), provincial environmental vision (POVI) and municipal environmental vision (GOVI).

Programs for the preparation of these policy plans, such as a nitrogen program, a nature program and a rural program, are then drawn up at national level. This only applies to green environmental policy, but there are also various programs in other areas. Such elaborations will also follow at the provincial and municipal level. This means that we can begin to prepare for strong growth in political programs.

Policies do not automatically affect legal rules

There is nothing wrong with drafting all the political documents. It also fits into the forthcoming Environmental and Planning Act because it is based on a so-called policy cycle. Environmental visions provide policy development and programs for further implementation of this policy. The point is that it should then lead to the implementation of that policy and also feedback from it, but that is exactly where the problem lies. In the new Environment and Planning Act, there is no obligation to actually register and implement all that policy in binding legal rules.

All political plans with attractive images and planning maps from these programs, visions and strategies are therefore not automatically translated into legislation. Anyone who goes to court or the Council of State because certain parts of the policy are not implemented will not get a foothold there because the policy is not laid down in legal rules. Nor is it the case with the Environmental Act that NOVI, POVI, GOVI and other programs automatically have an influence on legal rules and therefore allow approval. In fact, a province does not have to worry about a NOVI, and a municipality does not have to comply with a POVI or a provincial program as long as there is no legal effect of this policy.

Instruments for policy implementation

How do you ensure that both municipalities and citizens comply with the established policy? This can be done by law, such as the executive order (general administration executive order) or by provincial executive order. The new Environment and Planning Act also stipulates a number of instruments from the old Physical Act. But then there is still no question of automatic processing of the policy notes for the judiciary. This means, for example, that if a local authority such as a municipality does not comply with part of the province’s policy, that province must consider whether this should be addressed with a reactive designation or a provincial integration plan (PIP).

Groennorm does not continue automatically

An example. In the provincial forest strategy, the province of Flevoland adheres to a green standard of one hundred square meters of forest land for each new home. If a Flevoland municipality does not comply with this in whole or in part, the province will have a problem. This is a political rule and not a mandatory rule of law. If the province wants to take action against this, it must actively do something. This can be the inclusion of the green standard in the province’s environmental executive order, a provincial integration plan for the part of the municipality where the problem is, or the preparation of a reactive instruction. Answers must therefore be given in each specific case

The question is whether we are sufficiently aware that many policy programs and strategies lack elaboration in legal rules and that that policy must be defined in (municipal, provincial or central) legislation. Until 2008, the implementation of policy in legal rules was better ensured. For example, using a central planning decision (PKB). If parts of a policy document were given a PKB status, they automatically became binding on local authorities. Another legal instrument was the provincial preventive oversight of draft municipal zoning plans. Area plans had to be approved by the province first. In the example of the province of Flevoland, the province could have allowed the green policy to continue to work through the supervision of draft zoning plans.

However, both the PKB and the provincial preventive oversight of draft zoning plans fell through in 2008. They were removed from the then new Spatial Planning Act because the central government believed there should be more confidence in lower governments. Decentralization was the magic word. The National Environmental Vision (NOVI) is now arguing for more central government control. There, the old PKB would be able to take control again. In addition to compensation for PKB, one might also want to consider a provincial variant, for parts of provincial strategies or programs. This would have meant that Flevoland’s green standard would have passed on to its reluctant municipalities. Much higher policy can then be implemented automatically and structurally via PKB and approval, without the need for time-consuming and expensive procedures.

Environmental law as a solution?

The National Environmental Vision is now breaking with decentralism: Trust in co-governments is no longer the starting point, but more central government. Because the Environment and Planning Act was drafted at the time of decentralization, an adjustment may be necessary. However, the forthcoming Environmental and Planning Act has not yet been amended, and national interests therefore do not automatically apply. It stays with old legal instruments such as project decisions or instructions. In addition, the law contains many non-binding political instruments. From a legal point of view, it is only a matter of words that Miljøvisionen wants more state administration. Super-municipal planning is needed, especially now in connection with the major changes and crises that are taking place, and the national interests that must work through to lower governments.

More information

  • The shaky political cycle. Green politics and its impact on environmental law, written by FH Kistenkas and published in Landskab 2022-1, pp. 23-27
  • Right for the green space, written by FH Kistenkas, HC Borgers & MEA Kistenkas, renewed third edition published in 2017 by Wageningen Academic Publishers
  • More central government for the Netherlands of the future. Holland 2120 requests the reintroduction of PKBs, written by FH Kistenkas, LL de Rooij & T. van Hattum and published in RO-Magazine 2020-12
  • Council of State, 2020. Council of State 23 December 2020, Gst (De Gemeentestem) 2021/49 m.nt. Cash Greenhouse (The Frisian Lakes).
  • Parliamentary Questions Asked by Van Gerven (SP) in the House of Representatives, Parliamentary Questions 1336 (9 December 2020), Annex Negotiations 2020-2021
  • Parliamentary Questions Asked by Van Gerven (SP) in the House of Representatives, Parliamentary Questions 1993 (29 January 2021), Annex Negotiations 2020-2021

Text: Fred Kistenkas, Wageningen Environmental Research
Photo: Forest groups

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