Dutch testing ground for biodiversity litigation

Scientific reports on biodiversity show that biodiversity conservation is not succeeding in Europe, and that in my country, the Netherlands, it has fallen to another level yet.

The specific and urgent situation here explains why it is one of the frontrunners in ESG litigation in Europe: the Netherlands is a small, highly developed and densely populated country that lies below sea level, the land fortified by the famous dikes that protect it from the ocean. This makes the country extremely vulnerable to the rise of sea levels due to climate change. It is a country in extra time.

On top of that, my country is unfortunately one of the world’s leaders in biodiversity challenges, with high nitrogen pollution the clearest example. This is mainly caused by the intensification of agriculture by business, with fragmentation of nature on the one hand and pollution of the remaining natural areas through nitrogen and phosphate leaching on the other.

This evidently high risk situation in the Netherlands has affected my view on ESG Litigation, as local anxiety inevitably triggers activism via protest and the collective actions of concerned individuals and NGOs. In my opinion, this has resulted in environmental litigation against the government and also against companies with a clear link to environmental damage. The Netherlands is not for nothing the testing ground for Europe in this regard, with the Urgenda case – landmark Dutch litigation for climate change initiated by the Urgenda Foundation and 900 citizens in 2013 – and now Greenpeace’s victory in this January’s ruling that the Dutch government has acted unlawfully by failing to meet nitrogen reduction targets for 2025 and 2030. I believe we can extrapolate lessons learned in the Netherlands to ESG litigation on a global scale.

In my experience, the biggest challenges in this kind of litigation are the legal framework – the specific obligations and targets of companies – and scientific proof of the contribution of an individual company to the suspected climate change or biodiversity infringement.

At an EU level, with the CSRD and CSDDD, the legal framework became stricter for companies in relation to climate change and biodiversity pursuant to the Green Deal. However, in the recent challenging geopolitical and economic times, ESG – and biodiversity in particular – have rather shifted into the background for commercial ventures. Their primary focus has been on keeping business going, and lobby groups have been pushing for less ESG legislation. This year, the change of emphasis has resulted in the EU’s ‘Clean Industrial Deal’ initiative, with a significant limit on the scope of the CSRD and a delay in implementation.

In relation to biodiversity, the EU already has specific laws with concrete obligations, resulting in the EU Natura 2000 Network of protected areas. This aims to safeguard Europe’s most valuable and threatened species and habitats, and comprises 18% of EU land and 8% of its maritime territory. Furthermore, there are the Timber Regulation, Battery Regulation, Deforestation Regulation and Nature Restoration laws, all with an impact on government and business.

Even in the absence of a legal framework with clear obligations, under generally accepted business principles (soft law) there can be attribution of damages resulting from climate change and biodiversity harm on the basis of general tort law and the universal due diligence obligations of companies. However, in this situation, there needs to be solid scientific proof.

Scientific proof around the causation of biodiversity loss has significantly evolved and improved in recent years, specifically regarding local nitrogen pollution in the Netherlands. In the face of scientific proof that nature conservation is not succeeding in Europe, the active restoration of nature will inevitably become an important factor for the recovery of biodiversity and to mitigate climate change. This is another thing we can learn from Greenpeace’s lawsuit, which directs that the Dutch state must now prioritise the most vulnerable Natura 2000 areas while taking action in relation to nitrogen pollution.

Another example is the ‘Naturschutz case’ in Germany. On 23 October 2024, BUND (Friends of the Earth Germany) and several individuals filed a constitutional complaint that a lack of a coherent scheme for biodiversity protection violates fundamental rights. This mirrors the 2020 Neubauer case – when a group of young German citizens successfully argued that reducing greenhouse gas emissions 55% by 2030 from 1990 levels was insufficient and consequently violated their human rights as protected by Germany’s constitution – but is directed specifically at the biodiversity crisis.

The more urgency there is around biodiversity, the more activism arises with an appetite for litigation towards companies. Although the legal framework is not optimal, improving scientific proof is the strongest trump card moving forward and will result in scrutiny.

Dutch companies are under increasing pressure from regulators, NGOs and other stakeholders to address biodiversity concerns around damage in relation to natural resources like fishery, soil fertility and drinking water. An example is the recently announced collective action by a union of Dutch fishermen against a chemical company for polluting sea waters in the Westerschelde. I believe these kinds of actions will now happen in other countries, based on the lessons learned in the Netherlands.

The impact of any biodiversity action on a company can be significant since it may involve elaborate planned media and communication attention. This trial-by-media directly impacts the likeability of a brand and consumer preference. This can damage its licence to operate. We see this type of action impacting Dutch multinationals.

Looking ahead, good risk management in relation to biodiversity challenges is key via, among other things, an adequate climate transition plan that includes biodiversity. Not only can new projects be impacted via administrative litigation, but restoration-based claims may also arise.