A new chapter in the fight against the use of pesticides? Municipalities often think that they are not allowed to restrict the use of legally permitted pesticides, while this is indeed possible.
This is evident from legal research by environmental organizations Urgenda and Natuur & Milieu, which they will present to all Dutch municipalities on Thursday. Their report opens new routes to curbing pesticide use, following a wave of lawsuits on the matter.
In recent years, the safety of pesticides has regularly been discussed in court. Citizens, sometimes united in citizens’ initiatives or action groups, litigate against local authorities or individual farmers to prevent pesticide use. Although they are in fact opposed to legal practices – pesticides have been found safe after extensive testing procedures and are allowed on the Dutch market – these citizens are regularly proven right.
Judges appear not to be convinced that every approved drug is safe: the health of people and nature could be at stake. For example, scientists point out a possible link between exposure to the substances and Parkinson’s disease. Biodiversity can also suffer: pesticides are simply intended to eradicate insect, fungal or plant pests.
By the book
So far, two legal routes against pesticide use have had varying degrees of success. The first is often used by action groups or citizen initiatives: administrative law cases against low-level authorities that allegedly cause damage to nature by allowing pesticide use. Citizens’ initiative Measure = Know has dozens of cases underway in this way.
The second route is newer. Various groups of citizens living near bulb growers have enforced a reduction in pesticide use in summary proceedings over the past two years through court rulings or settlements. The first successful case took place in the summer of 2023, in the hamlet of Boterveen, municipality of Westerveld. This also started the ball rolling elsewhere in the Netherlands.
What is painful about this route is that citizens and farmers face each other in court – and that farmers have to answer for pesticide use that simply goes by the book.
Hanneke van Ormondt, ecologist at Urgenda, also thinks so. “It is absurd that residents are standing against growers in court, because governments are not doing what they should do. It appears that municipalities do not know what they can do, or think that the responsibility lies with the government.”
And according to the environmental group’s report, things are different. The document, drawn up by their lawyers, mentions legal options for municipalities to restrict pesticide use to protect the health of local residents. “We hope this will prevent lawsuits,” says Ormondt.
Vulnerable groups
What exactly can municipalities do? For example, they can rely on the European ‘precautionary principle’ and the European Directive on the Sustainable Use of Pesticides to draw up rules on land use. As long as there is scientific uncertainty about risks, the Netherlands is obliged to protect vulnerable groups in particular, such as children, the elderly, pregnant or breastfeeding women – also against products that have been authorized on the market.
“A well-known assumption of local authorities is that regulating pesticides is contrary to their authorization,” Bente de Leeuw responds upon inspection of the document, which she considers “certainly legally sound.” She is a researcher in European and national environmental law at Utrecht University. That assumption of powerlessness is indeed incorrect, she says: European guidelines actually encourage member states to further limit risks at local level. “Logical, because local circumstances cannot be properly taken into account during admission.” De Leeuw does say that the precautionary principle can be interpreted broadly. This means that intervention is not a duty, but a political choice.
The report also focuses on the environmental plan, and specifically the Environmental Act that came into effect this year. Municipalities can set up spray-free zones around vulnerable locations such as homes, hospitals, care homes, daycare centers and schools. They could set a limit on the total amount or types of pesticides.
Property law
Because the Environmental Act is still so new, all its possibilities are still unclear, says De Leeuw. Lawyer Sem Weinberg of Hekkelman Advocaten, with expertise in the field of pesticides and environmental law, also makes that point: “Regulation via the Environmental Act has not yet been taken, but requires careful substantiation.” For example, the judge will take into account the ownership rights of farmers, because it is their land.
There is still a lack of rulings from which it can be deduced how judges assess this assessment in new instruments of the Environmental Act. Weinberg: “We will have to wait and see what the administrative judge thinks about it.”
Hanna Schebesta, professor of law at Wageningen University, is full of praise for the environmental organizations’ report. “I think it is one of the most convincing and legally sound pieces I have read on this subject.”
A question that remains: do local governments want to take stricter action against pesticide use? The first civil pesticide case, which took place in the Drenthe municipality of Westerveld, split the community. Attempts to get the province to limit pesticide use led to nothing. Residents of the Limburg village of Sevenum also tried to engage local authorities this year to combat pesticide use. There, the province and municipality referred to each other.
However, the subject is widespread among municipalities. Their umbrella organization VNG asked the government in May to clarify how large a pesticide-free ‘buffer zone’ between fields and homes should be to protect local residents. More than 80 percent of the municipalities supported a motion at the VNG calling for this.
Before Urgenda and Natuur & Milieu send their findings to all municipalities in the country, their report will be presented at a symbolic location on Thursday. A group of citizens hands it over to the municipality of Westerveld, the scene of the first civil case between citizen and farmer. Van Ormondt hopes that municipalities will take action themselves from now on, so that citizens no longer have to go to court.