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COMMENT: The Tata saga: Another Environmental Issue on the Judge's Plate?

 

After local residents filed charges against a Dutch branch of Tata Steel, the Public Prosecution Service (PPS) started criminal investigations into the steel company in February 2022. These events fit into 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 environmental norms, which by now has led to a court-imposed fine. 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.[1]

 

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 in the company’s vicinity, which are large clouds of dust containing heavy metals that can be particularly harmful to young children, caused concern among many local residents as well. One of the most recent studies by the National Institute for Public Health and the Environment (RIVM) shows that, despite measures taken by Tata Steel, the amounts of dangerous substances in the company’s vicinity have not yet decreased.  

 

Studies into public health in the company’s surroundings are not new: such research has been conducted for more than 25 years. An overview of relevant research is available at the RIVM webpage on Tata Steel. At the time of writing this blog, no less than 36 reports can be found about public health in the region where the company is located. The oldest report available there (from 1995) already states that the steel industry appeared to contribute significantly to concentrations of particulates and that these were in turn 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, the Randstad Court of Audit recommended a greater regulatory role for the national government last year. On the other hand, it has been pointed out that political intervention is difficult in practice, both on a national and 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 the 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 in 2020 for violating environmental norms, indicated that in this case one “cannot rely on the political authorities when it really matters” and thatthe enforcement of the environment permit was inadequate due to the environmental service organisation being structurally understaffed. And Bénédicte Ficq, when providing explanations about the charges she filed on behalf of local residents and interest organisations, pointed to the slow progress of the then ongoing criminal investigations. According to her, the authorities have been “waiting long and worked in a fragmented way”. She added  that “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 due to suspected violations and harmful health effects of the company's emissions, difficulties in intervening at political and administrative levels, and citizens taking the initiative to try and 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 - think, for example, of the case against the tobacco industry (also initiated by Ficq) and cases in which measures against COVID were being challenged.

 

Like these other cases, recent developments in the Tata Steel case raise the question as to which processes exactly prompt 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 increasingly nowadays, and the normative questions that may arise in some cases about the role of the judge, make it all the more relevant to properly understand these processes – which is one of the research aims of the- Institutions for Conflict Resolution Network. 

 

Lisa Ansems is a postdoctoral researcher within the Institutions for Conflict Resolution research programme at Leiden University, the Netherlands. An earlier version of this comment was posted as a blog on Leiden Law Blog.