Schiphol causes more noise pollution than is permitted, but is not punished for it. Legally, the airport has regularly violated noise standards since 2015, but the Human Environment and Transport Inspectorate (ILT) tolerated this. It now appears that the inspectorate extended that tolerance even further last year. “The inspectorate is looking for space where there is no space,” says professor of administrative law Herman Bröring of the University of Groningen. “The tolerance continues, it becomes more and more slippery.”
The Rutte II cabinet introduced policy in 2013 to ensure that fewer local residents experience noise pollution from Schiphol. The policy means that the airport uses runways that are further away from residential areas as much as possible, where local residents experience less inconvenience. In some areas, Schiphol may cause more noise pollution than is legally permitted, as long as the total nuisance is limited.
But that policy, which was established in consultation with Schiphol and local residents, has never been laid down in law. That is why State Secretary Mansveld of Infrastructure and the Environment (PvdA) instructed the ILT in 2015 to tolerate the exceeding of legal noise standards as long as Schiphol adheres to the new flight policy.
From that year onwards, Schiphol was allowed to do more than was legally permitted, but the airport did not even adhere to that new policy between 2021 and 2023. Schiphol runways are used too often, causing a lot of noise pollution for local residents, according to ILT data. In 2021, the ILT therefore imposed punitive measures for violating the noise regulations, as Mansveld once intended. But in 2023, Schiphol violated the rules of the flight policy again. At Uithoorn, under the flight path for the Aalsmeer runway, the airport caused twenty percent more noise pollution than legally permitted. Initially, the inspectorate decided to impose another penalty on Schiphol, it appears internal documents from the Ministry of Infrastructure and Water Management that were requested by environmental organization Mobilization for the Environment (MOB) and shared with NRC.
“If we are not allowed to impose this measure, we would not be able to do anything,” an ILT employee emailed the ministry in April 2024. “If we don’t do this, we will have an enforcement request from local residents tomorrow (and rightly so).” With an enforcement request, citizens can force the government through the courts to still enforce violations. It is not clear from the documents exactly which measures the ILT wants to impose, but the resources available to the inspectorate vary from fines and a penalty to mandatory measures to ensure that exceeding noise standards is prevented in the future.
No punishment after all
Schiphol objects to the proposed punishment, because it believes that the ILT should tolerate the situation. After a long back and forth about the interpretation of the tolerance rules, the ILT agrees with Schiphol’s reasoning and decides in July 2024 to condone the violation. In the region around Uithoorn, local residents have to contend with additional noise pollution, without Schiphol being punished for this.
Professor Herman Bröring, who was commissioned by the House of Representatives in 2020 research looked at the tolerance situation around Schiphol, believes this cannot be justified. “The basic principle is that the ILT may only tolerate if Schiphol adheres to the flight policy. That did not happen, and then as ILT you have to intervene. What is happening now is looking for a goat path to avoid enforcement. This way you as a government are only slipping further away.” Administrative law professor Richard Neerhof of the Vrije Universiteit, who conducted research into the tolerance situation together with Bröring, agrees. “The ILT will only continue to relax, that is not permitted.”
Bröring points out that the broader tolerance policy cannot be explained to local residents who are bothered by the noise from Schiphol. “As a government you become very unreliable. What can local residents still count on?”
The ILT said in a response that it had no choice but to tolerate. The inspectorate has been calling on the ministry for years to put an end to the tolerance situation, because local residents are currently insufficiently protected.
The fact that the toleration has lasted for almost ten years makes the situation even shakier, according to the two professors. At the end of 2023, Minister Harbers (Infrastructure and Water Management, VVD) gave the ILT one official designation to continue the toleration “until further notice.” According to both professors, such an open ending is contrary to the law: toleration is only temporarily permitted when there is a concrete prospect that the situation will soon become legal. That prospect is lacking at Schiphol, because it is unclear when the law that will put an end to toleration will be introduced.
The ministry says in a response that it wants to legalize the current situation as quickly as possible by recording the new flight policy and the new noise standards, both introduced in 2013 under Rutte II, in the Aviation Act. “The instruction to the ILT to tolerate will then probably also be withdrawn,” said a spokesperson. However, this new law has been in the works for about ten years. The law was delayed because Schiphol did not have a valid nature permit for a long time. The nature permit is linked to the new law in such a way that the law can only be established if the nature permit is irrevocable.
The nature permit was issued in September 2023, but is legally shaky and is being challenged by environmental organizations. In December it emerged that the change in the law had been delayed again. The ministry cannot now say when it will be sent to the House of Representatives.
Inadequate protection
Last March judged the court in The Hague, in a civil case brought against the state by more than three thousand local residents, found that local residents are insufficiently protected against noise pollution. “Due to the lack of adequate and actually enforced standards, people who experience nuisance at Schiphol have lacked effective legal protection for years,” the judge said. According to the court, the state consistently puts the interests of Schiphol first, and only then looks at how the rights of local residents can be met. The judge ordered the government to enforce the applicable laws and regulations within twelve months.
But that is not happening yet. Minister Barry Madlener (Infrastructure and Water Management, PVV) decided last December that Schiphol will be allowed to fly more this year than in 2024 and weakened the targets for reducing noise pollution. The ILT wrote in 2022 that a maximum of 420,000 to 460,000 flights per year are possible if the toleration ends. From more recent research by a consultancy firm To70 commissioned by the Ministry of Infrastructure and Water Management, it turned out that there is room for a maximum of around 400,000 flights per year within the legal limits. Schiphol will accommodate approximately 470,000 flights in 2024. This year, Minister Madlener has allowed this to increase to around 8,000.
The state has now appeal appealed against the ruling of the court in The Hague and asked the judge for a postponement because, according to the ministry, the twelve-month deadline is unattainable. A spokesperson for the ministry says that local residents have not objected to the request for a postponement. The interest group Right to Protection against Aircraft Nuisance, which filed the case on behalf of local residents, categorically disputes this and calls it “framing”. The interest group believes that the state should implement the verdict, but sees little chance of legally enforcing it as long as the appeal is pending.