The Tata saga: Another environmental issue on the court's plate?
After local residents filed charges against Tata Steel, last February the Dutch Public Prosecution Service (PPS) started criminal investigations into the steel company. These events fit in a broader trend of citizens turning to the judiciary when they feel other institutions are failing them.
The charges filed by Bénédicte Ficq on behalf of many hundreds of local residents and a number of interest organisations concern a violation of Article 173a of the Dutch Criminal Code: intentionally and unlawfully emitting a substance into the soil, air, or surface waters, thereby endangering public health or the life of another person (under 1) or endangering another person’s life and causing someone’s death (under 2). The investigations the PPS announced at the beginning of February 2022 in response to these charges are not the only criminal proceedings against the company. At the time of the announcement, Tata Steel was already being investigated for alleged violations of its environmental permit, as the dust released during the steel production spreads further from the company’s premises than the permitted two metres. The PPS had already announced earlier that they would be prosecuting Tata Steel for these charges. In addition, several orders subject to periodic penalty payment (lasten onder dwangsom) have been imposed in recent years, which the company has challenged time and again. None of these interventions seem to have substantially changed the situation.
At the same time, research shows that there are relatively many health complaints in the vicinity of Tata Steel and that the air quality in the company’s surroundings is structurally worse than in the rest of the Netherlands. The graphite rains that occurred in the company’s vicinity, which produced large clouds of dust containing heavy metals, caused concern among many local residents as well. And another recent study by the National Institute for Public Health and the Environment (RIVM) shows that the amounts of lead in the vicinity of the factory in particular can be harmful to playing children.
Studies on the health of people living in the company’s vicinity are not something new. Such research has been conducted for more than 25 years. An overview of relevant research is available on the RIVM webpage on Tata Steel. At the time of writing this blog, no fewer than 31 reports can be found about public health in the region where the company is located. The oldest report available there (from 1995) already stated that the steel industry appeared to contribute significantly to concentrations of particulates and that these, in turn, were associated with a statistically significant decrease in lung capacity. According to an overview document that lists the various studies and which can be found on the website of the province of Noord-Holland, Tata Steel's emissions have a negative impact on the living environment, although there is still uncertainty about the exact cause and degree of health risks.
In view of the many years of controversy surrounding the steel manufacturer, one may wonder why action has not been taken sooner and more vigorously, for example at a political level. In line with this, last year the Randstad Court of Audit recommended a greater regulatory role for the national government. On the other hand, it has been pointed out that political intervention is difficult in practice, both on a national and on a local level. Tata Steel is one of the most frequently inspected companies in the Netherlands and the company has been said to generally adhere to the standards. Moreover, the relevant standards are often drawn up at EU level – that is why, according to the responsible State Secretary at the time (Van Weyenberg), stricter European standards were needed. It has been said that the environmental service organisation (omgevingsdienst) and the provincial authorities would like to impose stricter standards on Tata Steel, but that standards simply cannot be interpreted more strictly for one European company than for another.
Nevertheless, the perceived lack of (effective and expeditious) interventions by political, administrative and legal authorities does seem to be an important reason for the recent developments surrounding Tata Steel. For example, the village council of Wijk aan Zee, in a response to the announced prosecution of the company for violating its permit, indicated that in this case one ‘cannot rely on the political authorities when it really matters’ and that according to them the enforcement of the permit was inadequate due to the environmental service organisation being structurally understaffed. And Bénédicte Ficq, when providing explanations about the charges she had filed on behalf of local residents and interest organisations, pointed to the slow progress of the ongoing criminal investigations. According to her, the authorities have been ‘waiting long and working in a fragmented way’ and ‘way too little is being done to tackle the effects of air pollution caused by Tata, often in violation of the rules’.
Taken together, we see a conflict between Tata Steel, on the one hand, and local residents and interest organisations, on the other hand. It concerns suspected violations and harmful health effects of the company's emissions, difficulties in intervening at political and administrative levels, and citizens taking matters into their own hands by trying to bring the case to a criminal court. Interestingly, these events seem to fit within a broader development in which citizens or interest organisations take social problems to the judiciary when they believe that other institutions are lagging behind. Dutch examples in the field of climate change and environmental pollution outside the field of criminal law are the Urgenda and Shell cases and the Council of State’s rulings on nitrogen. We also see a similar development with regard to other themes – for example, the case against the tobacco industry (also initiated by Ficq) and cases in which measures against COVID are being challenged.
Like these other cases, recent developments in the Tata Steel case raise the question of which processes exactly cause citizens to try to bring these kinds of politically sensitive cases involving underlying social problems to court. The fact that this seems to be happening more and more nowadays, and the normative questions that may arise in some cases about the role of the courts, make it all the more relevant to properly understand these processes. This is one of the themes that is being investigated from different points of view within the Institutions for Conflict Resolution research group. This summer’s conference on Courts as an Arena for Societal Change may already provide some answers.
More than 120 scholars from all over the world will share their findings and views on 8 and 9 July 2022 at Leiden Law School during the conference Courts as an Arena for Societal Change. Several blogs will be published on the Leiden Law Blog on the themes of the conference.
 Essens, O.D. (2021). Naar een effectieve handhaving op maat in het omgevingsrecht. Tijdschrift voor Omgevingsrecht, 2021/3, 95-106.