THE BOTTOM LINE
- Limits on Regulatory Power: A Dutch court has ruled that regulators cannot automatically apply the strictest environmental rules to substances merely suspected of being harmful without conducting a proper risk assessment first.
- Increased Business Certainty: Permit conditions must be based on established scientific classifications (like the official EU list of SVHCs), not on vague “potential” or “equivalent” categories, providing companies with a clearer compliance framework.
- Stronger Legal Grounds: This ruling provides a strong precedent for businesses to challenge overly broad permit conditions where regulators invoke the precautionary principle without sufficient scientific justification.
THE DETAILS
The dispute arose when the Provincial Executive of Zuid-Holland granted environmental permits to chemical terminal operator Liquin B.V. The permits contained stringent conditions for managing Substances of Very High Concern (SVHCs), a formal classification under the EU’s REACH regulation. However, the authority unilaterally expanded this definition to also include “potential” SVHCs (pSVHCs) and “substances of equivalent concern”—chemicals not yet officially classified but under suspicion. The authority justified this expansion by invoking the precautionary principle, aiming to regulate substances before definitive proof of harm is established.
The District Court of The Hague rejected the regulator’s broad application of the precautionary principle. While acknowledging that the principle allows authorities to act in the face of scientific uncertainty, the court clarified that it is not a blank check. To justify imposing strict SVHC-level controls on substances that are only potentially harmful, the regulator must first conduct a thorough risk evaluation. This includes a scientific assessment of the potential adverse effects and an analysis of the existing scientific uncertainty, as outlined in EU Commission guidelines. Simply stating that the release of such substances into the environment is “undesirable” does not meet this standard.
The court ultimately sided with the company, annulling the permit conditions that extended SVHC rules to unclassified substances. This decision narrows the scope of the permit’s most demanding requirements back to only officially designated SVHCs under Article 57 of REACH. For CEOs and legal teams, this is a critical clarification: regulatory action based on precaution must still be grounded in a rigorous, evidence-based process. It reinforces that while regulators have a duty to protect the environment, their measures must be proportionate and based on a concrete evaluation of risk, not just on anticipatory concerns.
SOURCE
Rechtbank Den Haag
