Integrated air quality and land use planning in The Netherlands

• Author: Evelien van Rij
• Position: Rekenkamer Rotterdam, Rotterdam, The Netherlands

Introduction

There are principal differences between environmental regulation based on stringent top-down environmental norms on the one hand, and governance by localised spatial planning on the other, with these two ways of thinking occasionally clashing. These clashes relate to the scale of governance. Environmental standards are usually not established in a local context, but are based on centralised professional and scientific knowledge which is the basis of strict environmental standards. On these grounds, a project will not be approved if standards concerning one aspect are expected to be exceeded, even if it is anticipated that these will result in an overall environmental improvement. Spatial planning is seen to involve the coordination of different policy fields ( Gallent et al., 2008 ), entailing that all relevant interests should be taken into account and properly balanced within a certain, often local, territorial setting. At present, such collaborative planning is often considered an appropriate approach which allows new groups and networks to become involved and societies and social groups to interactively manage their collective affairs ( Healey, 1997, 2003 ). However, a balanced decision based on such an inclusive process may result in a situation where environmental norms are still compromised. Conflicts between planning and environmental norms thus also concern questions of scale, which lead to rescaling issues arising between different authorities, who emphasise their own responsibilities and powers. A territorial and integrated approach to planning must deal with a variety of norms produced by a scattered field of higher authorities, each guided by sectoral specialists ( Vigar and Healey, 1999 ).

The development of European environmental policies has brought a new dimension to the tension between planning and environmental regulation as it enlarges the distance between local planning practice and the norm-setting bodies. Moreover, the middle layer of transposition of European norms into national legislation may result in additional complexities.

The present paper reflects on these complexities by presenting a case study of the transposition of European environmental regulations on clean air in the Dutch context and its effects on the planning system. At first this transposition occurred in such a way that many plans were effectively brought to a standstill. Many players unhappy with a certain development, such as companies willing to hinder the establishment of a competitive enterprise, sought to rescale local plans by claiming they would fall foul of European environmental norms. As a consequence, the directive influenced local planning decisions by means of measures that prohibited certain practices. Consequently, air pollution did not increase. However, air quality did not improve substantively either. In addition, planning decisions were no longer made in an integrative manner; for example, transport issues and positive environmental effects on a higher scale could no longer be addressed in a balanced way.

Consequently, in a second stage, a new system of air quality and land use planning was constituted that was designed to bridge adherence to strict European norms on air quality and integrated decision-making on all projects in the country that could have a considerable impact on air quality. This system was called the National Cooperation Programme on Air Quality (Nationaal samenwerkingsprogramma luchtkwaliteit, NSL) ( MVROM, 2009 ). This paper addresses both of these moments of transposition: the first revealing how conflict can emerge, and the second showing how this can be resolved by a system that, although it also has its shortcomings, deals better with local planning practices.

The case study examines European and Dutch national and local policy and legislation. The working of the system was examined by a study of policy analysis reports by the Courts of Auditors of the four largest cities in The Netherlands ( Rekenkamer Amsterdam, 2011 ; Rekenkamer The Hague, 2011 ; Rekenkamer Rotterdam, 2011 ; Rekenkamer Utrecht, 2011 ). With respect to findings on the effects on air quality, this paper relies on reports of assessment agencies, such as the National Institute for Public Health and the Environment ( Mooibroek et al., 2012 ; Van Zanten et al., 2012 ).

This paper will first discuss the rescaling of local planning practices by European policies in general. Based on experience with European economic integration, the importance of combining measures that prohibit certain practices with measures that constitute new desirable policies will also be discussed. Second, the first transposition of the European Air Quality Framework Directive ( CEU, 1996 ) will be analysed. Third, the subsequent attempt at a transposition of this directive based on the NSL system will be analysed. The conclusion will discuss the steps that the transposition of the European Air Quality Framework Directive had to go through before it could develop into an approach that both respected strict environmental norms and facilitated integrated decision-making. Finally, the paper will elaborate on the effect of such a system on inclusive planning.

The rescaling of spatial planning by European policy on environmental protection

The development of the European Union can be understood as a process of rescaling in which the nation-state has lost its dominance over other levels of governance ( Brenner, 1999 ; Jessop, 2004 ; Gualini, 2006 ). In relation to environmental governance, both upscaling, for example, to the EU level, and downscaling, for example, to local and regional authorities, has taken place ( Görg, 2007 ; Thiel, 2010 ). This has resulted in changing relationships between governance levels, entailing that the “success of governance processes at one of the levels […] is […] dependent upon its relationship to other levels” ( Görg, 2007, p. 957 ). This dependency affects environmental governance capacity. On the one hand, national level is not always the appropriate level at which to address issues such as air pollution, resulting in a situation where rescaling may produce a better fit between socially constructed scales of environmental governance and the “natural scales” ( Görg, 2007, p. 958 ) of natural-spatial conditions. On the other hand, this dependency may result in stalemates, for example, it may have a negative impact on governance capacity, resulting in “mismatched rescaling” ( Miller, 2007, p. 235 ) and an uneven distribution of powers across scales ( Mahon and Macdonald, 2010 ; Taşan-Kok and Korthals Altes, 2012 ).

The rescaling of environmental policies and spatial planning have moved in different directions. While environmental policies are increasingly created at a European level ( Johnson, 1995 ; Vedder, 2010 ), in the field of spatial planning, integrated local or regional solutions are promoted ( Vigar, 2009 ). There is, however, a dependency between European environmental policies and integrated spatial planning, which may have an impact on governance capacity, that is, the “capacity to get things done” ( Stoker, 1998, p. 24 ) at both levels.

Transposition

In order to understand how European policy influences local practices, this sub-section explains the way Member States should transpose directives. Member States must transpose European directives into their national institutional systems through national legislation and policy measures. The idea that European directives must be transposed into national legal systems fundamentally reflects the position of the EU in relation to the Member States, that is, it upholds the principle of institutional autonomy, which involves the notion that national peculiarities may play a role in the transposition of European directives ( Dimitrakopoulos, 2001 ). The EU is not a federation or confederation and, thus, while the Member States are obliged to transpose European directives into their own legal systems, they do not have to sweep aside their own systems and replace them with that of Europe.

Such a transposition into existing systems may, however, be problematic. Many public officials are uncertain about what European environmental regulations require ( Van Kempen, 2012 ), and their interpretations may not fit with the correct interpretation reached later by a court. There is only a thin line between over-implementation and under-implementation, and there is no simple, instant and objective test to establish where the border between these modes lies ( Dimitrakopoulos, 2001 ), especially since a lack of clarity concerning what is required by the European directives is an issue in practice ( Van Kempen, 2012 ). On this basis, Member States sometimes prefer to duplicate or “copy out” the European directive, that is, to formulate a national law using the same wording as the directive ( Jans and Squintani, 2009 ). When asked to interpret European legislation, courts find such law-making highly convenient as they can make direct use of the interpretations of the European Court of Justice (ECJ) in their own judgments. Differences between national laws and European directives are in this case relatively easy to find. This style of law-making, however, presumes that the national legal system is completely malleable with respect to the European directives, which is rarely the case, as new regulations become effective in a national legal institutional system which already has, for example, general regulations on law...