News - February 28, 2011

Badgering the government into conservation: will the tactic work?

Marion de Boo

In the 1990s, Jaap Dirkmaat of the Dutch nature conservation association Das&Boom (Badger and Tree) regularly brought building construction to a halt because of the presence on the terrain of the European hamster or another rare species. The litigation tactic could also work well against the nature policies of the current Dutch government, says Dirkmaat. So he plans to revive Das&Boom. Good idea?

Bernd van der Meulen, professor of Law and Governance:
'The law is worth defending, even if you have to fight it out in court. Threatened species cannot defend themselves, so if someone is willing to do that for them - yes please! The Dutch government certainly does not always stick to the European regulations it has agreed to. This cabinet goes to the limits on various policy matters and has very little interest in agreements made on what it sees as 'left-wing hobbies'. Anyone who is out to do the bare minimum always runs a big risk of ending up doing less than that. According to Natura 2000, the extensive programme of European directives for nature conservation, the Netherlands should be able to offer adequate protection to its nature. And that is exactly what the Ecological Main Structure should provide.
The Netherlands likes to see itself as a role model and a frontrunner, but it does not always live up to these ambitions. Our country has repeatedly been rapped over the knuckles for contravening the European Habitats and Birds Directives.
No one sees Das&Boom as an organization that just lashes out without good reason. I think they would certainly be capable of setting up a careful procedure for testing Dutch nature policy against European guidelines. On average, the chances of success for an appeal against government decisions are one in four.
One promising tactic is to fight decisions that go beyond simply delaying implementation. Decisions that really mean destroying the Ecological Main Structure. Things like issuing felling and construction licences for land within the structure. Then you can object on the grounds that the decision conflicts with European rules by, for example, harming the badgers you are standing up for. Then the decision has to be reconsidered. If necessary you can then take it to a court of appeal, perhaps the  Council of State - which is obliged to apply European law. Das&Boom won a significant victory like that before now.'