Coöperatie Mobilisation for the Environment U.A and others v. Executive Board of Province of North Holland (Vattenfall Power Generations Netherlands BV intervening)

Summary:

On September 9, 2019 and April 10, 2020, energy company Vattenfall attained permits to construct and use a new biomass facility at an existing energy generation facility in Diemen, currently encompassing two gas facilities and a residual warmth facility. Several non-governmental organisations, including Cooperatie Mobilisation for the Environment UA (MOB) and Natuurmonumenten, and local residents, objected the permit due to concerns for negative effects on nature and their (living) environments due to harmful emissions, particularly nitrogen oxide (NOx), fine particulate matter (PM2.5) and CO2. Applicants argued that CO2 was not accounted for at all, but that the burning of wood pellets in this new biomass facility would lead to more CO2 emissions per unit of generated energy than a coal-fired plant. This increases the atmospheric concentration of CO2, accelerating global warming. They also argued that this violates the Paris Agreement, EU law and the national Climate Law.

On June 7, 2021, the District Court of North Holland ruled that the arguments of applicants related to CO2 emissions are not relevant to the permit procedure, since no evidence was presented on the direct and specific effects of CO2 emissions or global warming on the municipality of Diemen and it inhabitants. The evidence mostly referred to worldwide effects of CO2 emissions on the climate, rather than specific effects of the operation of the new biomass facility on the (direct) environment of the facility. Moreover, the court stated that, as affirmed in the Urgenda-case, the Paris Agreement lacks direct effects in the Dutch legal order. Third parties cannot directly derive rights or legal obligations from it. Even so, it is up to the Dutch government to decide which measures it takes to meet its climate targets, and the government has motivated its decision to pursue biomass on the basis because it views this fuel as necessary for the energy transition, and biomass is viewed as a CO2-neutral ‘renewable energy source’ under the Paris Agreement. The court explicitly states that the ‘political-governance’ choice to use biomass as a transitional fuel, and whether this is indeed a suitable fuel that would allow States to meet their climate targets is not an aspect that can be considered during a permit procedure, or assessed by a court in a related procedure. Since biomass is considered a CO2-neutral energy source under the Paris Agreement, the court decides not to consider the applicants’ arguments and calculations related to CO2 emissions, definitions of biomass under REDD I and REDD II, carbon debt, regeneration periods for wood stocks, and carbon capture and storage. The case was dismissed on all counts.

At Issue: Whether a permit for the construction and use of a biomass facility is lawful, considering the negative effects of higher emissions of nitrogen and CO2 on nature and the environment.