ESG litigation update: Dutch government ordered to cut nitrogen pollution or face penalty if statutory nitrogen targets are not met

The District Court of the Hague’s ruling in Greenpeace Nederland v the Dutch State, delivered on 22 January 2025, represents a significant milestone in biodiversity and ESG litigation by enforcing environmental obligations against the Dutch government. 

Background

The claim centred around nitrogen levels which are impacting Natura 2000 sites in the Netherlands. Natura 2000 is a network of protected areas, designated under EU ‘Nature Directives’ and spanning all 27 EU Member States, which are designed to protect threatened species and habitats across Europe.[1] Natura 2000 is a key contributor to the EU Biodiversity Strategy in the run-up to 2030.

Greenpeace issued this class action in the Netherlands in 2023, arguing that the Dutch government was failing to take adequate action to reduce high levels of nitrogen pollution in Dutch Natura 2000 sites to below the critical deposition values. It also argued that the state was failing to take appropriate steps to achieve statutory nitrogen targets for 2025 and 2030.

Nitrogen pollution, generated substantially by agricultural practices such as the use of nitrogen fertilisers as well as factory and vehicle emissions, is a significant contributor to global biodiversity loss.[2] Excess nitrogen can cause soil degradation, inadvertent fertilisation of nitrogen-tolerant species and the proliferation of toxic algal blooms. Nitrogen levels are therefore a critical metric in biodiversity and climate change regulation. 

Ruling

The District Court ruled that the Dutch state is under an obligation to prevent the deterioration of nature in Natura 2000 areas and had not taken sufficient measures to prevent the deterioration of the sites in accordance with the EU Habitats Directive. It also found that the state had failed to meet the 2025 statutory nitrogen targets and that current measures were going to be insufficient to achieve the 2030 targets. The state had therefore acted unlawfully. 

The Court ordered that the Dutch state must bring 50% of nitrogen-sensitive natural areas below the critical deposition value, in line with the 2030 statutory nitrogen target, and must prioritise the most sensitive Natura 2000 areas.  If this target is not met, the Dutch government must pay a EUR 10 million penalty to Greenpeace.

Comment

This case is evidence of an emerging ESG claims trend. While climate action cases have become numerous, the Greenpeace case represents one in a much smaller but growing pool of biodiversity rulings. Research by Cambridge University[3] shows that approximately 50 biodiversity claims have been filed around the world. In comparison, human rights and climate change litigation is far more developed with already more than 2,000 cases filed worldwide. It is anticipated that biodiversity claims are likely to grow rapidly due to the need to protect biodiversity and in the context of legislative developments, such as the Corporate Sustainability Reporting Directive and the Corporate Sustainability Due Diligence Directive, which require reporting and due diligence obligations related to biodiversity. 

We are also seeing the emergence of green v green cases, which involve apparent trade-offs between the need to protect biodiversity and projects or policies that are introduced on climate grounds. The Indian Supreme Court case of MK Ranjitsinh et al. v. Union of India et al is such an example [4].

The Greenpeace ruling is also significant as it demonstrates the willingness of the courts in the Netherlands to attach penalties to government failure to reach statutory targets. This is a clear indication that the judiciary is ready to hold the government to account on its legal obligations in the climate change and biodiversity space. 

Companies globally need to be mindful of these trends and consider adequate measures and governance improvements to manage biodiversity risk in their operations and supply chains. Biodiversity loss can directly impact businesses, so developing and adopting nature-positive strategies can help businesses build longer term resilience and manage material financial risks. 

If you would like any further information, or advice related to any of the information in this article, please contact Victoria Barnes, Christopher Wenn or your usual Burges Salmon contact. 

This article was written by Sophie Pace-Bonello and Victoria Barnes.

[1]The Natura 2000 protected areas network — European Environment Agency

[2]Facts about Nitrogen Pollution | UNEP - UN Environment Programme

[3]A Rights Turn in Biodiversity Litigation, Cesar Rodriguez-Garavito and David R. Boyd, Cambridge University.