Environmental law

The garden of Eden

1. For decades there has been a growing interest in all areas and levels of the protection of the physical environment. This part of the law is constantly changing and therefore requires permanent monitoring. Environmental law therefore encompasses various aspects. This includes waste, soil pollution, earth moving, forest, energy, manure, water, environmental permit, taxation (environmental taxes), environmental criminal law, ...

2. For the storage, processing, etc. of goods or performing actions listed in the appendix to Vlarem I an environmental permit (currently included in the environmental permit) must be applied for in advance. Such a permit is required for both the operation and modification of the establishment concerned. Failure to do so leads to administrative follow-up and sanctions. Compensation is also possible, such as for water pollution, even if the government has to fulfill these tasks.[1]

These facts also give rise to criminal prosecution. There is not yet an unambiguous policy available here. In some "light" cases the public prosecutor can quickly appear. In heavier cases not always. Legally, administrative prosecution should only take place in small cases and in serious cases criminal prosecution as well. However, this regulation is not sufficiently enforceable before the Court. Fines for the Correctional Court can be as much as € 100,000 and the exploitation can be closed in extreme cases. Facts that give rise to serious environmental damage (e.g. pollution of groundwater) are therefore also crimes that can be prosecuted.

3. European legislation has made a significant contribution to protecting the environment. For example, the Aarhus Convention, adopted by the EU, has contributed to active and passive public access for every citizen (ie has the right to obtain any information regarding actions that may have an impact on the environment). In the climate cases (such as the Urgenda case with regard to the Dutch government)[2], it has become apparent that artt. 2 (the right to life) and 8 (the right to private and family life), the Dutch government was condemned to comply with the Kyoto standards).

4. Article 23 of our Constitution guarantees the right to a dignified existence. Through a combination of the guarantee of the principle of equality, this forms the basis of a kind of standstill principle regarding the environment.[3] In concrete terms, this means that no action may adversely affect the current level of protection with regard to the environment. This standstill principle is explicitly stated at Flemish level.[4] Any new legislation that could have a negative impact on this could therefore be challenged. Please note, the Constitutional Court and the Court of Cassation give it a broader interpretation (interpreted standstill in such a way that the competent legislator significantly reduces the level of protection, without there being any reasons related to the public interest), while the Council of State indicates that the extent goes much further.[5]

5. Every citizen has the right to act (on behalf of his municipality) when the municipal government itself fails to act. If a certain activity is harmful in the municipality and the municipal mayor appear to display too great a policy of tolerance, the resident can, after giving notice of default to the Board of Mayor and Aldermen, act on behalf of the municipality in court (and e.g. claim closure of the company) It is best to do this with several like-minded people, because a financial guarantee can be requested.

Any environmental association (and this includes, for example, a non-profit organization that, among other things, provides for this protection as a social objective - it is best to make the social objective as broad as possible) can even apply to the judge in summary proceedings to demand a strike of any harmful environmental activity.

This is interpreted very broadly, and thus also allows action to be taken against construction violations with an environmental impact.

6. In the first instance, good advice is therefore a must, so that problems, reports, etc. can be avoided.

In view of the highly technical nature of this matter, further assistance is necessary if, for example, an environmental permit is not granted, it is not complied with, ...

Our office provides assistance for these matters.

[1] Cass. 2018 specifies that (with reference to art. 6.5 ° decr. 18.7.2003) the Flemish Environmental Agency can reclaim the costs of the remedial measures from the polluter

[2] H. Schoukens, A. Soete, Climate change in court, NJW no 417, page 142

[3] see explanation following the insertion concerning economic and social rights (Parl.St. Senate BZ 1991-92, no. 100-2 / 3 ("(..) T he downside of this progress, however, is the way in which the environment was sacrificed to economic developments It is the duty of the government to protect the environment Everyone has the right to a humane, healthy and ecologically balanced environment This right is linked to the duty to contribute to the preservation of the environment.”

[4] Article 1.2.1, §2 DABM (Decree General Provisions Environmental Policy): "B ased on an assessment of the various social activities, the environmental policy strives for a high level of protection. It is based on the precautionary principle and the principle of preventive action, the principle whereas priority should be given to combating environmental damage at source, the standstill principle and the polluter pays principle ."

[5]RvSt (VIIeK.), 2.5.2019, no 244.351, with note, in EIA (environment- and energylaw, 2020, no 1, page 27)