Jonathan Verschuuren⁽¹⁾

Many Constitutions acknowledge the fundamental right to live in a healthy environment, a right often formulated as an obligation for the state. This article can be seen as an investigation into the meaning of this constitutional basis for environmental law. As it is my intention to lay a foundation for modern environmental law, I start with a wide perspective. Although this goal may seem rather high-flown, it is necessary to have a look at the foundations of environmental law, as these have been neglected over the years. In many states, certainly in the Netherlands, environmental policy and law were developed without any underlying theory. Indeed, only in 1983 the protection of the environment found its way into the Dutch Constitution, but without much discussion about the meaning of this enrichment.

An important aspect of the search for the meaning of the varieties of fundamental rights concerning the protection of the environment, as laid down in national Constitutions and international treaties, is the determination of the implications which such constitutional norms have for legislative, administrative and judicial bodies and for citizens, both as individuals and

as members of environmental organizations.

In this article I will try to outline the foundations of environmental law, starting with a comparative study to the meaning of the constitutional right to environmental protection.

To get a clear picture of the meaning of constitutional rights to environmental protection, it is useful to compare the constitutions of some states in which environmental care is adopted as a human right or as a leading principle. For this article I have selected Germany, Austria, Switzerland and the Netherlands. In all of these countries a right to environmental protection has, in various ways, been laid down in the constitution. First, however, I will have a brief look at some international treaties and at the law of the European Union.

1. International fundamental environmental rights

Many international treaties acknowledge the right to live in a healthy environment, but unfortunately these treaties cannot easily be invoked in a national court because they often are only important in relationships between states.⁽²⁾

Procedural rights (public information and participation) seem to be of great importance in international law. A good example can be found in principle no. 10 of the Declaration of Rio: `(...) At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities (...), and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.'

Besides this the duty for the State to carry out environmental impact assessments before taking an important decision has been widely accepted as an important duty for the State in international law (cf. principle no. 17 of the Declaration of Rio).

2. The European Union

Although the right to live in a clean environment has not directly been laid down in the European Treaty, environmental protection has become an important task for the institutions of the European Community now the Maastricht Treaty for the European Union has been ratified by all Member States.⁽³⁾ The EC is already very active in the field of environmental policy with important directives like those on environmental impact assessment and on the access to environmental information for citizens in the Member States.⁽⁴⁾

3. Germany

In Germany the inclusion of an article in the German constitution, the Grundgesetz, has been discussed for some time, and on 28 October 1993 the commission that prepares the new constitution (a joint commission from Bundestag and Bundesrat) reached an agreement on inclusion of a Staatszielbestimmung, a constitutional duty for the organs of the state to implement environmental policy and law, in the Grundgesetz.

Much has been written on the practical legal consequences of a Staatszielbestimmung regarding environmental protection. There seems to be a consensus that according to such a constitutional norm, the legislative authorities have to enact legislation to protect the environment. But only when legislation is evidently contrary to necessary environmental interests can the Federal Constitutional Court quash it.⁽⁵⁾ Thus a restrictive approach is expected to be followed. For executive bodies and the judiciary, the new article will mainly be a guideline for interpretation. Unclear rules, or rules that leave discretionary powers to the executive, have to be read in the light of the new constitutional provision. Existing fundamental rights can also be influenced by the Staatszielbestimmung. However, much depends on the way the Federal Constitutional Court implements the new provision in its decisions.

Apart from this proposed article on environmental protection, the German Constitution guarantees legal support to environmental care to some extent already. Case law of the Federal Constitutional Court shows that especially the fundamental right to physical integrity (article 2, section 2) offers individuals a certain level of protection against environmentally dangerous actions of the government.⁽⁶⁾ Indivuals cannot invoke this fundamental right against others than governmental bodies, but governmental bodies have to enable individuals to participate in decisions concerning objects which can be dangerous to the health of people living nearby (such as nuclear energy sites). The government (including the legislator) has also to keep an eye on changed circumstances and, if necessary for a sufficient protection of the physical integrity of the citizens involved, has to adapt statutes and decisions to these new circumstances. So the fundamental right to physical integrity offers a minimum of ecological protection.

4. Austria

In 1984 environmental protection was laid down as duty for the state in the Austrian Constitution, in a similar form as the proposals in Germany. Here judges already have had some experience with the application of the constitutional right to environmental protection. One interesting case was the review of a statute on the granting of permits to shipping companies. According to the Austrian Constitutional Court this act `sufficiently guaranteed the consideration of environmental interests in the decision-making process.'⁽⁷⁾ This is exactly the restrictive approach the Germans expect judges to take when a Staatszielbestimmung enters the German Constitution.

A unique figure in Austrian environmental law and policy is the environmental Ombudsman.⁽⁸⁾ This institution was created to defend the interests of nature and the environment and to function as a mediator between the government and the general public in environmental matters. Since public participation and access to the judiciary in Austria are, like in Germany, reserved to those whose private interests are at stake, the interests of nature or the environment per se (or those of future generations) cannot be defended by individual citizens or environmental protection groups. The environmental Ombudsman has to fill in this gap.

5. Switzerland

In Switzerland the Constitution has already referred to environmental policy since 1971. Although originally intended to imply a distribution of powers between national and cantonal governments, the provision of article 24^septies is now considered to be a duty for the national government to take measures to protect the environment, so again a kind of Staatszielbestimmung. This constitutional duty for the state legislator resulted in an Environmental Protection Act in which, among other things, environmental impact assessment and public participation are provided for. Contrary to Germany and Austria, environmental protection groups can defend ecological interests in procedures before executive and judicial bodies. Specialized agencies have been created with tasks similar to the Austrian environmental Ombudsman.⁽⁹⁾

In the first chapter of the Dutch Constitution all fundamental rights have been put together, which indicates that all rights must be considered to be of equal importance. Nevertheless the right to environmental protection (article 21) has been formulated as a duty for the state, not as a fundamental right for each individual citizen. It is therefore often considered to have less practical legal meaning than other fundamental rights. Indeed judges are very restrictive in the application of rights that leave a large amount of discretionary power to the state. Besides, individuals can only invoke these rights in relation to the government, not to other citizens. Article 21 will be dealt with in section IV.

Like the German Grundgesetz, the Dutch Constitution acknowledges the right to physical integrity. Contrary to Germany, however, article 11, in which this right has been laid down, has never been thought of as a right which protects people against actions or decisions that pollute the environment. This is very unfortunate, as the German approach has had many positive effects. There are five possible legal implications of article 11: 1. article 11 imposes a duty to enact legislation to protect the environment as far as the physical integrity of persons is endangered, 2. decisions of governmental bodies can be reviewed in the light of article 11 (except for legislation jointly enacted by Parliament and the national government: article 120 of the Constitution declares statutes to be infrangible), 3. actions of the state that threaten human health can be forbidden in court, 4. in civil actions among citizens, article 11 may be of importance, especially for tort cases, 5. article 11 is a guideline for interpretation for all state organs: physical integrity has to be given the highest possible protection.

As this is a very anthropocentric approach, which will only have effect if environmental pollution clearly damages human health, article 11 is only of marginal importance. A short study of the evolution of the right to environmental protection in civil law shows that environmental protection groups in the Netherlands can very easily protect environmental interests, even when `only' the intrinsic value of the environment is at stake. Therefore I conclude that the Dutch Constitution would better comply with the demands set by the theory of the environmental constitutional democracy, if a new fundamental right to a healthy and sustainable environment was formulated, not as a duty for the state, but as a right for individuals.⁽¹⁰⁾

Now the time has come to have a closer look at article 21 of the Dutch Constitution, which reads as follows: It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment. Article 21 is considered to adress the legislator in the first place. It imposes a duty on the legislator to enact laws that (1) provide for a sufficient protection of the natural environment and that (2) enable citizens to take themselves responsibility for the environment.

Already in the debates about the Constitution in Parliamant little attention was paid to article 21; afterwards neither the legislator, nor the executive bodies, the judges, or the legal scholars have explicitly focused on this most fundamental environmental provision in the Netherlands. Still, one cannot say that the environment is not an issue in the Netherlands. Apparently there is a kind of moral pressure on the legislator, on executive bodies and on judges, to pay special attention to environmental issues, and this may be helped by the fact that environmental interests are protected in the chapter on fundamental rights in the Constitution, although explicit links to article 21 are only rarely made by the state organs.

Dutch legislation has adopted an integrated approach towards environmental problems. As a result, an applicant for permits for several sectoral acts (e.g. a factory both polluting the air and producing too much noise) will only get one permit, in which all environmental matters are dealt with. The main advantage is that possible environmental damage can be prevented in a better way, because all polluting actions are assessed at the same time. This integrated approach can also be considered to be a part of the fundamental right to a clean environment: the environment has to be regarded as a whole and every aspect of environmental protection has to be reviewed (which includes paying attention to environmental values per se).

Other important aspects of environmental law implementing the right to a clean environment are the level of protection that is guaranteed (in the Netherlands permits have to assure the `best possible protection'), and the possibility, or even the duty, for executive bodies constantly to review permits in order to assure that the best possible protection will always be given to the environment. Planning is also a part of the integrated approach to get a cleaner environment.

Furthermore, the legislator is not allowed to withdraw statutes dealing with environmental protection, thus reducing the level of protection, unless new statutes with at least the same level of protection are promulgated at the same time. He must also implement the environmental protection directives of the EEC, to keep up with the latest standards.

The procedural rights that play an important role in the implementation of the right to environmental protection have been carefully worked out in Dutch legislation. The Environmental Policy Act (Wet milieubeheer),⁽¹¹⁾ for example, gives everyone the right to be heard and to raise objections against draft decisions for permits. Everyone who has entered this process of public participation can also start proceedings before an administrative court, even when there is no specific interest of the particular citizen at stake. Especially private environmental organizations thus play an important role in the protection of natural objects. They often come up with data on the quality of the environment or point at faults made by the government in the decision-making process and can, by adressing the judiciary, either provoke further action by the authorities or try to have a decision quashed.

Though they are not large in number, examples of legislation can be found in the Netherlands, that do nót guarantee that individuals or groups that stand up for environmental interests can participate in the decision-making and have access to courts (e.g. the Pesticides Act).

Executive bodies must first and foremost carry out the legislation that is meant to implement the fundamental right to environmental protection. In decision-making processes environmental interests must be considered weighty, compared to other interests. This is logical, as environmental interests are specially protected in the Constitution. Recent case law of all judges show that when environmental interests are at stake, the competent authority at least has to take these interests into account; it cannot just lay them aside without motivation.⁽¹²⁾

The same holds for procedural rules: authorities may not deprive individuals or organizations of their right to information or participation, e.g. by avoiding legal decision-making procedures. Again there is a bulk of case law which shows that judges are very strict when applying rules concerning participation and judicial review for citizens in cases where the quality of the environment is at stake.⁽¹³⁾

To carry out the constitutional task, executive bodies also must develop a policy of their own. When legislation grants some discretionary powers to executive bodies, they have a good opportunity to implement the fundamental right to environmental protection themselves. They can do so, not only by granting permits (although it must be admitted that there is not much discretionary power left when principles like `best possible protection' are used in statutes), but also by making plans in which they set out their environmental policy goals. By means of plans like the National Environmental Policy Plan⁽¹⁴⁾ the authorities can show how they will deal with environmental problems in an integrated way and how they will fulfill the constitutional task of article 21.

There are two ways in which article 21 can play its role in proceedings in court. First, citizens and environmental organizations can use the article in legal proceedings against the government (a), and secondly judges can use the constitutional right, or the value that it represents, when interpreting legal or constitutional standards (b).

a. Testing governmental decisions against article 21

Due to the supremacy of statutes, the most important meaning of article 21 (that is, for the legislator) cannot be enforced. This means that it only has a political meaning: Parliament can check the implementation of the fundamental right to environmental protection. However, any action by executive bodies can be reviewed in the light of the fundamental right, both by the administrative and the ordinary courts. Although judges do attach importance to procedural rights of citizens and organizations and to substantive rights for the environment, they only rarely mention article 21, let alone that they test actions directly against the Constitution.

The most important reason for this reluctance to test against article 21 is the large amount of environmental statutes in the Netherlands. In almost all cases the court can review actions by`normal' environmental law. An administrative court which reviewed a licence for a waste dump did not directly test the decision to grant a licence in the light of the Constitution (although this was put forward by the appellant, an environmental protection organization), because `there is much legislation that implements article 21 of the Constitution, like the Waste Management Act that forbids licenses to be granted when damage can be done to the environment. So there is no need to review the decision directly in the light of the Constitution'.⁽¹⁵⁾

The second reason for the judicial restraint with regard to article 21 is the alleged vagueness of this social right. It is true that it leaves the government much freedom when implementing the right to environmental protection. This is also the view of the Council of State in an opinion of 27 April 1992:⁽¹⁶⁾ `due to the many discretionary powers it leaves to the authorities, governmental actions can only be reviewed in the light of article 21 of the Constitution in exceptional cases.' But, as has been stated above, duties arise from this constitutional right for both the executive and the legislator. The many data on the condition of the environment that have been published and the elaborate National Environmental Policy Plans give indications about which quality must at least be guaranteed by the authorities. Thus I think that the administrative courts have too many reservations when asked to review decisions by means of article 21 of the Constitution.

The third reason is closely related to the second one. Because of the alleged vagueness of article 21, only very few plaintiffs mention this constitutional right. Using the fundamental right to environmental protection more frequently will no doubt raise the importance of the article, as judges will be obliged to fill in its meaning.

Fortunately there are some examples of the enforcement of article 21, mostly by the ordinary courts, sitting in private law cases. In a dispute between a drinking water supplier, who exploited groundwater in the area, and the State over the construction of a national road, the court stated that the costs for preventing the leaking of oil and other chemicals from trucks into the groundwater should be paid by the State, as it is not the responsibility of the drinking water supplier to protect the quality of the groundwater against pollution by chemicals from cars and trucks. Since environmental protection is in the common interest, according to article 21, the State must bear the costs that go with a possible deterioration of the environment; the supplier of drinking water may trust that the groundwater is of good quality.⁽¹⁷⁾

But in most cases where environmental issues are at stake, courts do not refer to the Constitution. They merely check whether environmental interests have been given sufficient attention. This in fact can be seen as a test on the environmental soundness of a decision and thus as a test on the social right to environmental protection. The same holds for the test whether procedural rights for citizens and organizations have been guaranteed sufficiently.

b. Interpretation by judges in the light of article 21

Environmental interests, as protected by article 21, can limit the realisation of other constitutional and legal standards. The aim to preserve landscapes can justify a ban on antennas, thus restricting the right to receive information as protected by article 10 of the European Convention on Human Rights. Printing houses can be required to have environmental licenses, although the freedom of the press forbids prior consent by the government to publish (Article 7 of the Dutch Constitution). In this case, however, the government does not intend to limit the freedom of speech, but it intends to fulfil its duty of care for the environment.

Interpretation of administrative statutes and general legal principles in the light of article 21 and its meaning for the environmental Rechtsstaat can influence the opinion of courts both on procedural and substantive questions. To make the right to environmental protection work for everyone, the court can be lenient on questions of access to the court by individuals who want to represent common environmental interests. As stated before, most Dutch legislation already stems from the principle that everyone must have the right to participate in decision-making that has an impact on the environment and that everyone also can go to an administrative court.

A clear case of influence of article 21 on procedural rules was that of Benckiser.⁽¹⁸⁾ Benckiser had dumped polluting materials on several sites across the Netherlands. The Dutch State demanded in a procedure before a civil court from Benckiser to take away the dangerous materials. Such a civil action can only succeed when the acts of a defendant can be called tortuous vis-à-vis the plaintiff. To justify this, the court referred to article 21 which clearly states that it is the responsibility of the State to take care of the environment. It concluded that therefore any action endangering the environment can be called tortuous towards the State.

The picture that thus comes up, makes it possible to set out the lines along which the implications of the right to the protection of the environment for legislative, administrative and judicial bodies and for citizens will be sought. I envision an imaginary state in which environmental care is one of its foundations, without a loss of democratic and constitutional guarantees: the environmental constitutional democracy (environmental Rechtsstaat). This idea is partly based on existing ideas about the role of the state in Dutch political movements. All major political parties in the Netherlands acknowledge that the state has a duty to protect the environment, although different approaches can be found with the liberal, the social democratic and the christian democratic movements.⁽¹⁹⁾ Secondly, the idea that protection of the environment is an important task for the state, can be found in the theory of the social contract as elaborated by James M. Buchanan.⁽²⁰⁾ A clean environment is a public good, which, in the postconstitutional contract, cannot be left to the free market. It is even possible that the `right to a healthy environment' is considered to be such an important fundamental right for individuals, that it has to be laid down in the constitutional contract. These kind of approaches have been further developped in several publications by lawyers both in the Netherlands and in Germany.⁽²¹⁾

The picture of an environmental Rechtsstaat that thus comes up, has the following features: 1. protection of fundamental rights is the first and most important governmental task (the primary role of the state); 2. procedural rules play an important role in developing environmental policy and law; 3. the goal of environmental policy and law is shaped by the idea that the environment has an intrinsic merit, and that it has no voice of itself to defend its dignity.

1. Environmental protection a duty for the state

Fundamental rights guarantee that everyone has the personal freedom to live according to his or her own ideas; they have usually been laid down in the Constitution. They are specially protected and cannot easily be altered. The right to a healthy environment is one of these fundamental rights, together with the right to physical integrity. The Constitution also gives rules on providing collective goods. The state must provide and distribute these goods in a just and non-discriminatory way. The environment clearly is one of these goods. We need clean air to breath and clean soil to grow vegetables and we even need the space of woods to wander. But we also need the air to be able to keep our factories and cars going and the soil to build houses and roads. All these different claims on the environment cannot be attuned by a market mechanism. Tuning these can be seen as the secondary task of the state. Since care for a healty environment can, in a social contract, also be considered a primary task, we see that the borders between primary and secondary tasks are open.

2. Procedural rights for citizens

Several procedural rules have to be followed when environmental protection policies are developed. Constitutional and democratic rules see to it that governmental action is consistent and predictable and that individuals have access to an impartial judiciary body when they think their rights are infringed. By allowing citizens to participate in the decision-making process and by granting them judicial review, individuals can have a greater say in governmental policy, which can make it more effective and legitimate. The complexity of society and the human dignity of each individual demand that everyone has access to public documents, to the decision-making process and to the judiciary. This is especially the case when environmental interests are at stake. Since nature is voiceless and since it is in our interest and in the interest of future generations that the environment is not spoiled, everyone must have the right to enforce these rights on behalf of the environment. Everyone must have the right to know about the condition of the environment and to participate in decisions that can affect the quality of the environment. Even judicial review of these decisions should be considered to be open for everyone (actio popularis).⁽²²⁾

3. Man's relationship with nature

Nature and the environment are entities worth moral consideration in their own right, not just because we need them for our survival or for our well-being. This is an important starting-point, which shapes the aforementioned rights.

There are several perceptions of man's relationship with the natural environment. The idea that man is responsible to care for and maintain creation like a steward has been widely accepted in religious publications. Another perception is that of our responsibility towards future generations. This view has had an incentive by the publication of the UN report Our common future by the WCED.⁽²³⁾ Although one can be critical about this anthropocentric view, the concept of sustainable development does seem to be a starting-point for environmental policy in many countries. Especially when legally implemented along the three lines set out by Edith Brown Weiss (conservation of options, conservation of quality and conservation of access), this perception can be very helpful.⁽²⁴⁾

A third perception can start from the idea that natural objects have an intrinsic value, ignoring any reference to human interests or stewardship. This idea has been elaborated by some in the sense that, as natural objects have their own dignity, they should also be considered legal subjects, and have standing before the courts.⁽²⁵⁾

Because of theoretical and practical objections, I reject this approach. Our legal system is based on the social contract. It is especially meant to regulate human conduct in such a way that the exercise of certain fundamental liberties by all will be assured and that all will be provided with the necessary collective goods. The functions of constitutional law are aimed at people, with obligations and rights for people.

I however want to plead for giving natural objects legal protection, not because they are useful or valuable for humans, but because they have an intrinsic value.⁽²⁶⁾ Governmental bodies, individual citizens and environmental organizations must be able to implement this kind of legal protection in practice. In this way we can improve the protection of the natural environment without the need to consider natural objects as legal subjects.

When environmental policy starts from the idea that we have an obligation towards future generations, or from the idea that natural objects or the environment in general have a dignity in themselves worth of protection, the constitutional right to environmental protection gets a special meaning. The fundamental right compels the government to constantly review its policy in the light of the interests of future generations and the environment (and to make laws that guarantee such a review), and to assess the impact administrative decisions have on the quality of the environment.

On the procedural side, the goverment has to pursue an open kind of decision-making when the environment is concerned. Participation of citizens and the possibility of judicial review are essential when deciding on environmental matters or on other matters which may have consequences for the quality of the environment. Exceptions to this rule cannot very easily be justified, at least not in this approach of environmental constitutional democracy: everyone has a responsibility towards (voiceless) future generations and natural objects, and everyone must at least be able to fulfill this responsibility.⁽²⁷⁾

Hopefully, this article shows that a more active way in dealing with the fundamental rights concerning the environment, such as article 21 of the Dutch Constitution, is possible and desirable. Only when courts are less restrictive in applying it, article 21 can obtain a more important meaning in environmental law and policy. Citizens, environmental organizations ànd governmental bodies have to keep in mind that the protection of the environment is one of the foundations of our state.

But even without this further elaboration by courts, there is a strong movement in Dutch environmental law to give natural objects the legal protection they need, without neglecting the importance of freedom of environmental information, of public participation and of access to justice for individuals. Only when fully in compliance with the demands set by the constitution can environmental protection policy be effective.

1. This article is an abbreviated version of a doctorate thesis that has been published in Dutch in: Het grondrecht op bescherming van het leefmilieu, W.E.J. Tjeenk Willink bv, Zwolle, 1993, ISBN 90-271-3725-0. Jonathan Verschuuren works as an assistant-professor at the faculty of law of the Tilburg University in the Netherlands. Address: P.O. Box 90153, 5000 LE Tilburg, the Netherlands.

2. Eg. the UN Declaration of Stockholm of 1972, Doc. A/Conf. 48/14 and the UN Declaration of Rio of 1992, Doc. A/Conf. 151/5. The Experts Group on Environmental Law of the WCED has formulated a human right to an environment adequate for the health and well being of all human beings. The WCED has adopted the legal principles as developped by the Experts Group with the report `Our common future', which in turn was accepted as a starting point for future international environmental policy by the General Assembly of the UN (Resolution 42/187).

3. Environmental protection is proclaimed as one of the main targets of the Community (article 2 of the European Treaty, as amended by the Treaty on European Union, the Maastricht treaty of December 1991).

4. Directives nos. 85/337 and 90/313. A directive on access to justice for everyone in environmental matters is being discussed.

5. This was a common opinion during a 1987 hearing by the German Parliament of several of the nations formost lawyers (BT-Dr. 11/10, Protokoll Nr. 8, Bonn 1987). The Experts Commission on `Staatszielbestimmungen' does not share this view its 1983 report: Der Bundesminister des Innern/Der Bundesminister der Justiz (Eds.), Staatszielbestimmungen, Gesetzgebungsaufträge, Bericht der Sachverständigenkommission, headed by E. Denningen, Bonn 1983, page 103.

6. Important cases in which this was decided by the Federal Court are BVerfGE 49, 89 (Kalkar case) and BVerfGE 53, 30 (Mülheim-Kärlich case).

7. VfGH 9 March 1989, published in Österreichische Juristen-Zeitung 1990, page 61.

8. The environmental Ombudsman is an independent, state funded, but regionally organized, institution.

9. Contrary to Austria, the Swiss institutions have been anchored in national environmental law (article 6 of the Environmental Protection Act of 1983). But like in Austria, they are fully independent of the government.

10. I will not elaborate further on this thought here. Cf. my thesis (note 1).

11. This is a new act, in which various sectoral environmental laws were integrated. The Environmental Policy Act has entered into force on 1 March 1993.

12. Three examples out of many more: the decision to allow an airport to let aircraft take off and land earlier than usual was quashed because the governmental body did not make clear why transportation interests should prevail over environmental interests (Council of State 31 Januari 1991, Kort geding 1991-181); environmental interests must under circumstances be given more weight than economical interests, this can lead to a decision to cut down an old tree being quashed (Council of State 18 July 1991, Administratieve beslissingen 1991-591); since it is clear that executing the plans of the local government will, contrary to its own policy, restrict the habitat of the salamander, the plans are declared illegal by the Council of State (verdict of 22 April 1991, Administratieve beslissingen 1991-592).

13. The Council of State quashed, for example, a licence granted to a nuclear power plant, because the public had insufficiently been involved in the decision-making process, 29 May 1992, published in: Milieu en Recht 1992, page 477.

14. This is an overall plan by the national authorities in which the environmental policy for the next four years is presented.

15. Council of State, 12 November 1990, Administratieve beslissingen 1991-232.

16. Published in: Administratieve beslissingen (kort) 1992-789.

17. Court of Appeal of The Hague, 29 December 1988, Nederlandse jurisprudentie 1990-320.

18. Supreme Court, 14 April 1989, Milieu en Recht 1989, p. 258

19. All three political movements have published their views on environmental protection, partly in connection with the 1989 elections, in which the protection of the environment was the most important issue. In the 1994 elections the environmental issue was outshined by economical problems.

20. Especially in his The limits of liberty, between anarchy and Leviathan, Chicago/London 1975.

21. An important publication is that by Michael Kloepfer, Auf dem Weg zum Umweltstaat?, Ladenburger Diskurs, Berlin/Heidelberg 1989, pages 39/78. And in Dutch: A.F.M. Brenninkmeijer, Kernenergie, rechtsstaat en democratie, Zwolle 1983.

22. This implication of the above theory has also been elaborated by B. Jadot, Les procedures garantissant le droit à l'environnement, in: A. Postiglione (ed.), The right to a healthy environment, Rome (Italy), 1986, page 149, and in Dutch: P.C.E. van Wijmen, De Natuurbeschermingswet, VMR 1988-4, Zwolle 1989, page 166.

23. World Commission on Environment and Development, Our Common Future, Oxford-New York 1987.

24. E. Brown Weiss, Our rights and obligations to future generations for the environment, American Journal of International Law, Vol. 84 (1990), nr. 1, pages 198/207, esp. 201/202.

25. Besides the famous publication by Christopher D. Stone, Should trees have standing? Toward legal rights for natural objects, Southern California Law Review, vol. 45 (1972), pages 450/501, the same thought has been put forward in German by (among many others): K. Bosselman, Eigene Rechte für die Natur?, Kritische Justiz 1986, pages 1/22 and Jörg Leimbacher, Die Rechte der Natur, Basel-Frankfurt a/M 1988.

26. Stone has also reconsidered his view in this way: "Should trees have standing?" revisited: how far will law and moral reach? A pluralistic perspective, Southern California Law Review, vol. 59 (1985), pages 1/154. Some of the difficulties that arise when natural objects are granted `rights' can also be found in P.S. Elder, Legal rights for nature-the wrong answer to the right(s) question, Osgoode Hall Law Journal, summer 1984, pages 285/295.

27. The need for information and participation of the public has also been stressed in the second report by the Club of Rome: A. King/B. Schneider, The first global revolution, New York 1991, especially pages 73, 114 en 246.