environmental standards for wind turbines in wind farms with at least 3 turbines

draft of a: draft Regulation of the State Secretary for Infrastructure and Water Management amending the Environmental Management Acts and the Environmental Regulations in connection with case law on wind farms

The draft regulation covers standards for the environmental impact caused by wind turbines (e.g. impact shadow, glare, safety requirements and acoustic research). The draft regulation includes amendments to the current Environmental Management Acts (adopted on the basis of the Environmental Management Act and the Environmental Management Activities Decree) and of the future Environment Regulation (adopted on the basis of the Environment Act and the Environmental Activities Decree).

Wind turbines in wind farms of at least 3 wind turbines for which an environmental permit was granted on 30 June 2021 and which were then included in the zoning plan (spatial planning) must comply with the proposed environmental standards set out in the draft regulation. The draft regulation is based on the case law of the Court of Justice of the European Union, which has now been confirmed by the national supreme courts in the Netherlands concerning the Dutch situation, stating that directly implemented general rules for wind turbines forming a framework for implementing decrees, such as the environmental permit and the zoning plan, must be subject to an environmental assessment prior to their adoption. In the absence of an environmental assessment, the existing general rules should not be applied. Pending new general rules for wind turbines, subject to a current environmental assessment, a bridging scheme is provided to address the gap in environmental protection against wind farms resulting from case law. The aim is to restore the desired environmental protection to residents of wind farms which were licensed and designated on 30 June 2021. For
wind farms licensed and designated after 30 June 2021, the bridging scheme does not apply. The environmental permit and the zoning plan must, therefore, provide for the desired environmental protection after an environmental assessment. The previous unchanged general rules for wind turbines still apply for wind turbines which are not part of wind farms of at least 3 wind turbines, because it is not necessary to carry out an environmental assessment according to the national supreme court.
The included draft decree has the same background and scope as the draft regulation. The draft decree contains provisions on light pollution, noise pollution, external security. The draft regulation is based on the Activities Decree and the Environmental Activities Decree and contains more detailed implementing provisions on the same issues covered by the draft decree.
The rules contain provisions for mutual recognition:
- Article 1.3 Environmental Management Activities Decree
A certificate or accreditation as referred to in or pursuant to this Decree or in a non-public regulation referred to in or pursuant to this Decree, in so far as the text thereof must be observed pursuant to the provisions of Article 1. 7, third paragraph, must be taken into consideration for the application of this Decree, a certificate or accreditation issued by a competent institution in another Member State of the European Union or in a state, not
being a Member State of the European Union, which is party to a treaty to that effect or to which the Netherlands is a party, on the basis of investigations or documents which offer a level of protection which is at least equivalent to the level pursued by the national investigations or documents, shall be regarded as equivalent to such certificate or accreditation.
- The wording ‘by or pursuant to’ in this provision means that this mutual recognition clause also applies to the Environmental Management Acts.

Article 1.3 Environmental Regulations (mutual recognition)
A recognition, quality declaration, certificate, inspection or standard as referred to in this regulation shall be deemed equivalent to a recognition, quality declaration, certificate, inspection or standard issued, implemented or approved by a competent independent body in another Member State of the European Union, or in a state that is not a Member State of the European Union but that is party to a treaty binding the Netherlands, with a level of protection that is at least equivalent to the target level applying under national requirements.