Environmental Law

19/03/2018

Citizen participation in the decision-making over airports’ expansion agenda: the Amsterdam Schiphol case

The Amsterdam Schiphol Airport, representing the fourth airport in Europe in terms of passengers and air transport and the third European airport in terms of goods, has generated technical, political, economic and social discussions about its expansive policies since its inauguration in 1916. The airport is owned by the “Schiphol Group”, a limited liability company which, together with Royal Dutch Airlines KLM, controls the airport’s expansionary policies. With the advent of the deregulation in the aviation sector in the early 90s, the Dutch government had to balance the interest of the national growth linked to airport expansion with the objectives of ecological sustainability. Currently, the sector is regulated – among others – by the Noise Abatement Act (Wetgeluidhinder), the Space Planning Act (Wetruimtelijke Ordening) and the Aviation Act (Wetluchtvaart), which from 2019 will be replaced by a single legislative framework, the Single Law on Environmental Planning (Omgevingswet; Staatsblad n.156). The legislative intervention aims precisely at balancing the protection of the environment and the conservation of the ecosystem with the interests linked to economic growth.

In order to counterbalance these opposing interests, a scheme based on the so-called “dualbeleidsdoelstelling” (dual political objective) was adopted at the national level. This approach has led to the creation of numerous collaborative bodies aimed at tackling complex problems and taking difficult decisions regarding the environmental impact of the airport. An example of such structural interventions aimed at creating a dialogue between the interested parties is the Alderstafel (Alders Table), founded in 2006 and still existing. The Alderstafel, named after its former minister and social democrat president Hans Alders, is a consultative body composed by representatives of the public sector, citizens and businesses. Specifically, the Ministry of Infrastructure and the Environment forms the Alderstafel for the first category. The municipalities potentially affected by the expansion, namely the Municipalities of Haarlemmermeer, Amstelveen, Uitgeest and Amsterdam, united in the Bestuurlijke Regie Schiphol (Address Commission for Schiphol) are also represented. Among the commercial parties, the representatives of the Schiphol Group, KLM and Air Traffic Control The Netherlands (LVNL) join the Table. Finally, the civic component is represented by the Schiphol Regional Advisory Committee and the Association of Consultative Platforms, reflecting the interests of the residents of the areas surrounding the airport.

The experience of Alderstafel produced in 2008 a leading opinion on the future expansion of Schiphol for the period comprised between 2008 and 2020. The opinion, adopted unanimously by the participants of the Alderstafel, was presented on October the 1^st 2008 to the Dutch Government and  to the Dutch Lower House, which subsequently translated the opinion into agreements on limits to Schiphol’s growth and environmental impact. These agreements included a series of measures to limit noise disturbance in the medium and short term for the sake of the residents’ health and wellbeing, such as changes to routes, microclimatic approaches for limiting the local disturbance, measures to combat ground noise and higher fares for noisy aircrafts and night flights.

Experiences such as that of the Alderstafel find their justification in the right to participate in the res publica recognized to all citizens, a right which is not expressly formalized in the Dutch Constitution (Grondwetvoorhet Koninkrijkder Nederlanden). As a matter of fact, the Constitution seems to be limited to enunciate the right to hold a public office (Art.3), to elect (Art.4) and to present petitions (Art.5). Furthermore, also the right to health and to live in a healthy environment entail the right to participate in decisions that can affect such rights. While recognizing these rights, the Dutch Constitution seems to assign a primary role to the authorities designated for this purpose with regard to the protection of the environment (Art.21) and health (Art.22). Consequently, a constitutional recognition of a more active role of the citizen in defending these rights is missing. As Michels^[1] pointed out, citizen participation in the Dutch system, although recognized as an element contributing to the strengthening of democracy, is nevertheless often limited to representative democracy. Michels and De Graaf^[2] tackle the issue by observing how citizen participation in decision-making often plays an “instrumental” rather than expressive purpose. This would derive from the fact that participatory projects are frequently designed by the government and not by citizens. The authors point out that, in most of Dutch participatory decision-making experiences, as the Alderstafel, citizens have the opportunity to contribute to decisions by providing information and suggestions, without however changing the vertical structure of the decision-making process.

This contribution suggests that  a more ‘bottom-up’ application of participatory tools to the formal decision-making process in the case of infrastructural projects with environmental impact (in this case, noise pollution) would ensure that citizen participation is not a mere “democratic experiment”. To this end, an experience of civic participation from below is contextualised and problematized, in view of searching a proactive rather than passive citizen inclusion. The experience at issue regards a group of inhabitants living in the surrounding of Schiphol who decided to challenge the claim by the Dutch Government that noise could not be measured, but rather just calculated on the basis of mathematical estimates. In the name of the right to live in a healthy environment, citizens created a system of microphones positioned on the roofs of their houses to obtain evidence of noise impact on their quiet. Through Wi-Fi connection, such information on noise levels was sent from the microphones to the residents’ computers, which in turn transmitted this data to a central server via the network. The collected noise data was subsequently recorded on a website (currently called “Sensornet”). The publicly accessible website allowed users to view graphs of noise pollution in the surroundings of the Schiphol area, either in their entirety or specifically for each microphone. Difficulties in conducting the measurements, such as the problem of interference from other noises, were solved by triangulation methods in the arrangement of the microphones for each measuring station. Being an initiative based on unsophisticated technologies, there was the problem of microphones calibration and accuracy of the collected data. However, the detail and granularity of the information provided by the visualization of the acoustic loads recorded in 25 observation points during continuous periods compensated for possible technical weaknesses.

The initiative attracted the attention of a wider audience, composed not only of activists and local inhabitants, but also of influential non-governmental organizations, the press and public bodies. The platform from a local initiative became a noise measurement infrastructure at the national level. At the local level, numerous municipalities opposing the system of noise assessment supported by the government, adhered instead to the system born ‘from below’. A professional foundation, “Geluidsnet”, took over the “Sensornet” platform in order to create a joint venture between the bottom-up noise measurement infrastructure and 10 municipalities located in the affected areas. “Sensornet” currently appears as an established noise measurement platform that lists, among its customers, numerous Dutch municipalities (such as Gemeente Zoetermeer, Borne and Pijnacker-Nootdorp) and government organizations such as RIVM (the Dutch Institute for Health and the Environment) and ProRail (the public organization in charge of the Dutch railway network). Although the majority of “Sensornet” customers are now governmental organizations, the platform still provides an easy and accessible method for citizens to actively contribute in the measurement of noise pollution.

Although there has not been a substantial change in how the Dutch Government is assessing the noise, it is interesting to mention some concrete actions taken by the Schiphol Group that seems suggesting a greater attention to the interests of the citizen. For example, the airport has introduced specific flight techniques (routing) for departure and landing aimed at reducing the noise. In addition, the airport intends to minimize the background noise generated at the take-off of the planes through the use of specific barriers (ridges) adjacent to the slopes.^[3]

The discussion on a proper appreciation of the contribution of the concerned citizens in the assessment of noise seems particularly timely at present days when the expansion of Lelystad Airport is under discussion. The Schiphol Group, also owner of this latter airport since 1993, today plans to expand Lelystad Airport in order to accommodate up to 10,000 flights in 2019, which is expected to become 45,000 flights in the following decades. Various activist groups oppose the expansion due to the project’s feared environmental and public health impact. To date, the Dutch Government still seems to prefer a calculation of the noise disturbance rather than its measurment.^[4] Overall, it appears that the bottom-noise monitoring initiative had significant effects on local and national politics. However, Lelystad’s current expansionary agenda indicates that, in the Netherlands, the effective inclusion of the citizens in the decision-making process over infrastructural projects with high environmental impact is still scarce.

The present contribution through the analysis of two participatory tools, one from the top (the Alderstafel) and one from the bottom (the “Sensornet” noise measurement system), highlighted how citizens’ participation in environmentally impacting decisions can have a merely passive or, rather, a proactive role. In the first case, there is the fear that citizen participation becomes limited to a mere democratic experiment, an experiment that would not satisfy the citizens’ needs and would not lead to the resolution of the conflict. On the other hand, experiences of ‘bottom-up’ civic participation, although more responding to the needs of the citizen, would be more difficult to be accepted by the institutions responsible for managing the environmental issue.

Such participatory experiences aimed at creating a dialogue between interested parties in order to prevent or manage possible environmental conflicts could qualify as environmental mediation. Yet the experience of the Alderstafel, although representing a successful form of environmental mediation, nevertheless lacks the ability to ensure a proactive citizens’ contribution. Differently, the second experience, “Sensornet”, has effectively reconciled the needs of the local authorities, the municipalities concerned, with those of the citizens. Nonetheless, such bottom-up initiatives, as tending to reverse the vertical decision-making process, are difficultly compatible with the institutional status quo, as also proven by today’s expansion agenda of Lelystad Airport.

[1] Michels, A. (2006) ‘Citizen participation and democracy in the Netherlands’, Democratization (13)02: 323-339, doi: 10.1080/13510340500524067, p.323.

[2] Michels, A. & De Graaf, L. (2010) ‘Examining Citizen Participation: Local Participatory Policy Making and Democracy’, Local Government Studies (36)4: 477-491, doi: 10.1080/03003930.2010.494101, p.488.

[3] Schiphol Group (2018) Buitenschot – From ground noise reduction to land art park.

[4] De telegraaf (2017) Fouten bij berekening geluid Lelystad.

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This post is partly inspired by the article published by Anna Berti Suman and titled “Challenging risk governance patterns through Citizens Sensing: the Schiphol Airport case”, recently published in the journal “International Review of Law, Computers & Technology” with ISSN: 1364- 6885, DOI: 10.1080/13600869.2018.1429186.

12/03/2018

Energy dual pricing as a harmful fossil fuel subsidy: What the WTO can do

Energy dual pricing has been a contentious topic in the WTO for decades, but now the focus is on its harmful environmental effects. Dual pricing encourages wasteful consumption of fossil fuels and displaces cleaner sources of energy. There are several ways in which the WTO can and should contribute to reforming and phasing out fossil fuel subsidies, and tackling dual pricing practices is one of them.

 What is energy dual pricing and why is it harmful?

Energy dual pricing is a practice through which resource-endowed states sell their energy resources at significantly lower prices on the domestic market – for instance, through their monopolistic state trading enterprises – as compared to the price on the export market. The main reason for states to maintain dual-pricing policies is to provide their domestic energy consumers with cheap energy and their intensive industries with low-cost fuel inputs. Russia, Ukraine and the OPEC members, notably Saudi Arabia, are some of the countries that have used dual-pricing policies over the last decades.

It is debatable whether dual-pricing policies are WTO inconsistent per se, but it is certain that these policies are trade-distorting and have an impact on international trade. More importantly, considering the way dual-pricing policies are administered, they can fit into the broader category of environmentally harmful fossil fuel subsidies. Dual pricing allows setting the domestic price of energy from fossil fuels artificially low: countries that maintain these policies thus encourage the burning of “cheap” fossil fuels at below global market prices, to the detriment of switching to cleaner forms of energy. In this way, dual pricing undermines the competitiveness of green energy and contributes to increased CO2 emissions in the atmosphere.

Constraining dual pricing under existing WTO rules

Although the WTO was primarily created to deal with matters that affect cross-border trade, the global trade body can, and should, contribute positively to eliminating fossil fuel subsidies, including dual pricing and its negative impacts on the environment. For instance, a WTO member may raise a case in dispute settlement if its domestic industry suffers significantly from another WTO member’s dual-pricing policies that result in cheap energy inputs for competing industries.

If administered in a way that restricts quantitative exports of the energy resource, dual-pricing measures may fall foul of Article XI.1 of the GATT, which prohibits quantitative import and export restrictions on goods. GATT Article XVII on State Trading Enterprises (STEs) could also serve as a basis for a potential claim, as an STE of a WTO member maintaining dual pricing policies may be found to behave in a discriminatory manner.

More importantly, there is also a good argument to be made that dual-pricing practices constitute prohibited or actionable subsidies – Article 3 and 5 of the Subsidies and Countervailing Measures Agreement (ASCM). This would depend on whether the dual-pricing measure fits the definition of Article 1 ASCM. As an example, the government provision of cheaper energy inputs for energy intensive industries could be considered a “government provision of goods and services”.

Considering the case law already in existence, the Anti-Dumping Agreement (ADA) is perhaps an even more straightforward tool in countering the negative impact of dual pricing. It could be argued that dual pricing is a case of “reversed input dumping”; in other words, that goods which benefit from cheap energy inputs – by means of below-market energy prices – are dumped on the market of the importing country (for example steel products) due to cheap domestic inputs. At present, there are several such cases pending in the WTO: European Union – Cost Adjustment Methodologies and Certain Anti-Dumping Measures on Imports from Russia and EU – Anti-Dumping Measures on Certain Cold-Rolled Flat Steel Products from Russia.

While environmental concerns may not be the primary motive for a dual-pricing case in WTO dispute settlement, it may have positive knock-on effects.A dispute settlement case would certainly attract attention to the necessity of phasing out dual-pricing policies. It would also send a strong signal that these policies are not immune to being challenged in the WTO.

Moreover, such a move could back recent efforts to put the important issue of fossil fuel subsidy reform on the WTO radar. In fact, during the WTO’s Eleventh Ministerial Conference (MC11), held recently in December 2017, a group of WTO members issued a ministerial statement about the need to  reform fossil fuel subsidies, seeking to advance discussion in the WTO on achieving ambitious and effective disciplines for fossil fuel subsidies, including through enhanced transparency and reporting.

Inspiration from EU free trade agreements

Beyond existing rules, WTO members should consider revisiting the negotiation of a prohibition of dual pricing within the WTO legal framework. This could be part of larger efforts to reform subsidy rules. Although efforts to include a prohibition on dual pricing have been unsuccessful in the past, momentum has been created in view of climate change mitigation commitments and the UN Sustainable Development Goals.

Moreover, the recent accomplishments by the EU serve as a successful example of tackling dual pricing: the topic of dual-pricing prohibitions has been raised in several stages of Transatlantic Trade and Investment Partnership (TTIP) negotiations. More importantly, an actual prohibition of dual pricing has been taken up in the trade-related energy chapter of the recent EU–Ukraine Deep and Comprehensive Free Trade Agreement.

Creating policy space to support green energy

Aside from using the multilateral trading system to curb dual pricing, its negative environmental effects can be offset by creating more policy space for green energy. For this, it is essential to redraft and rethink current subsidy rules in a sophisticated manner.

The WTO could learn from the options provided by the EU rules on state aid: the Commission Guidelines on State Aid for Environmental Protection and Energy 2014-2020 offer detailed instructions to EU member states on how to design their support for green energy. The goal of the guidelines is to propose a market-based approach towards green energy support schemes, while at the same time ensuring that these schemes remain in line with EU State aid law. The WTO could develop similar guidelines for its members, thereby ensuring that members design their green energy support schemes in a WTO-consistent manner.

Moreover, state aid rules provide a set of accepted exceptions set out in the General Block Exemption Regulation (GBER). The regulation declares certain elaborate categories of state aid towards green energy as being compatible with the internal market. These options could serve as a model for WTO members when considering the wider reform of subsidy rules.

Forward action

The EU examples may serve as an inspiration for longer-term solutions within the WTO framework. At present, apart from exploring the options under existing rules, it is crucial that WTO members continue to push for including the topic of fossil fuel subsidy reform on the WTO’s agenda. The recent ministerial statement on fossil fuel subsidy reform is a good start, and follow-up actions are now needed to take reform efforts forward. Most importantly, the demandeurs of fossil fuel subsidy reform will need to continue stressing the importance of fossil fuel subsidy reform in view of climate change mitigation.

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This contribution was originally published as a blog for the International Centre for Trade and Sustainable Development, Geneva, and is available through this link. It is derived from the paper Fossil Fuel Subsidy Reform in the WTO: Options for Constraining Dual Pricing in the Multilateral Trading System commissioned by ICTSD and authored by Anna Marhold. It is part of the E15 engagement track  through research and policy dialogues on fossil fuel subsidies.