Europe: development of strategic biodiversity litigation in Europe

In EU biodiversity litigation mainly impacts NEW project development through civil and administrative actions. For example, nitrogen-related cases in the Netherlands have affected the farming and building sectors. There is also a trend towards a more proactive approach, with restoration-based and target-set claims becoming more common.

For further development of biodiversity litigation, the following hurdles need to be overcome: 

• Establishing scientific proof of causation; 
• Passing biodiversity legislation (with vague targets on biodiversity; and 
• Precedents in case law.

On 22 January 2025, in a landmark biodiversity litigation case, the Court of The Hague ruled in favor of Greenpeace, declaring that the Dutch state had acted unlawfully by failing to meet nitrogen reduction targets for 2025 and 2030. The Court mandated the state to prioritize the most vulnerable Natura 2000 areas and imposed a penalty of EUR 10 million if the targets are not met by 31 December 2030.

Under the EU Habitats Directive, which has been transposed into Dutch law, the Netherlands is obliged to prevent the deterioration of nature in areas designated as Natura 2000 and must ensure that the natural environment recovers. The Hague Court found that the Netherlands had not taken sufficient measures to stop the threatened deterioration of these areas and did not meet legal nitrogen targets.

This decision follows Greenpeace's argument that the Netherlands has long neglected its duty to reduce nitrogen emissions, leading to irreversible damage to protected natural habitats. The Court supported Greenpeace's claims with scientific evidence, highlighting the significant role of nitrogen in the degradation of these areas.

The 22 January Hague ruling reveals that these hurdles can be overcome regarding the nitrogen situation in the Netherlands, as this decision may trigger further activity in other areas of biodiversity. This case may prove to be the Urgenda case of biodiversity. Only the future will tell whether the Netherlands appeals the ruling and whether the judgment is sustained in appeal. For the near future, this case can be used in other cases as a crowbar or blueprint for moving forward.

Another example is the Naturschutz-case in Germany, which was initiated in October 2024. On 23 October 2024, BUND (Friends of the Earth Germany) and several individuals filed a constitutional complaint mirroring the Neubauer case but directed at the biodiversity crisis. The claimants seek a declaration from the Federal Constitutional Court (FCC) that the lack of a coherent scheme for the protection of biodiversity infringes fundamental rights and seeks an order from the court for the legislature to take the necessary measures to adopt an appropriate, legally binding protection scheme within a clear timeline. This case presents a significant development in the field of strategic biodiversity litigation as one of the first systemic government framework cases.

Biodiversity litigation is still in its early days, and due to its complexity and the slow development of legislation and scientific evidence proving causality, it faces several challenges. However, we can identify the following trends:

• Global rise of biodiversity claims & litigation (due to rise of legislation, proof and case law)
• Next to public enforcement also private enforcement
• For companies it is advisable to have climate transition plan INCLUDING biodiversity
• Biodiversity claims mainly include new project development (administrative/private)
• Tendency to more pro-active approach on restoration-based claims