The Pigs in Distress ruling by the European Court of Justice (CJEU Jan. 14, 2021, ECLI:EU:C:2021:7) has opened the door to wider participation in proceedings where the environment and the surrounding area are at stake. This new line is rapidly leading to new rulings that further expand access to justice. For example, those who have not submitted an opinion under the extended preparation procedure are still admissible to appeal to the court (ABRvS April 14, 2021, ECLI:NL:RVS:2021:786). Those who did submit an opinion may appeal to the court, even if they are not an interested party, and may moreover challenge more and different parts of the decision in the appeal phase than they had done in the opinion (ABRvS 4 May 2021, ECLI:NL:RVS:2021:953). Specifically for nature permits, public participation is now mandatory (ABRvS July 14, 2021, ECLI:NL:RVS:2021:1507).
This new line fits well with the participation spirit of the Environment Act. Because the gate is more open than before to anyone who feels involved in a development, it is important to take stock early on of who you need to involve in the planning process in order to avoid surprises afterwards. The Environment Act, it is always said, requires thinking differently and a culture change. It would be nice if governments in administrative law proceedings really thought along the lines of the Environment Act and no longer resorted to the ‘old’ reflex of focusing on admissibility issues first and foremost. This leads to litigation about litigation, as Professor L.J.A. Damen is fond of calling it. The Pigs in Distress ruling appears to be an important milestone in putting an end to this.
This article was written by mr. Rudolf van Binsbergen, affiliated with the Government and Real Estate practice groups.
.
