There is 'spectacular' news in the Netherlands. The Government of this country has been convicted of paying some citizens living near large livestock farms due to the high odour load they get. More impressive is the reason the Hague Court gave in its sentence for condemning the Dutch government: 'inadequate' odour legislation of the Dutch Government.
The Odour Nuisance and Livestock Farming Act (Wgv) was developed by the Dutch government and published in 2006. Unfortunately, this legislation did not adequately protect the Dutch citizens. Therefore, in a sentence just issued, the Court of The Hague orders the State to pay compensation for the damage caused to the plaintiffs. Furthermore, in this sentence from September (but recently published), the Court of The Hague declares that the State has acted unlawfully towards a set of plaintiffs because the protection against odour nuisance that the Wgv offers them is insufficient or has failed.
The Odour Abatement and Livestock Industry Act (Wgv) forms the exclusive assessment framework for odour from livestock farms when granting an environmental permit for the activity 'environment'. The Wgv includes standards for the maximum odour load a livestock farm may emit and minimum distances from odour-sensitive objects, such as houses. The odour standards, expressed in odour units per cubic metre of air as 98 percentile value (ou/m³), differ depending on whether the livestock farm is located inside or outside the built-up area and inside or outside a so-called 'concentration area'.
Depending on the location of the livestock farm, the maximum odour standards in the Wgv are between 2 and 14 ouE/m³, whereby the municipal council can set higher standards in its own odour ordinance: between 8 and 35 ouE/m³. Odour impact at the receptor is calculated using the free software V-Stack. In general terms, this software calculates odour emission from the number of animals, corrects this emission depending on if there is an odour abatement method and with a gaussian model calculates the impact in nearby receptors. This system is an improvement over previous regulations from the 1970s that simply set fixed separation distances.
|Fig 1. Separation distances in the 1970s, depending on the population involved from large cities (Cat I) to disperse dwellings (Cat IV)||Fig. 2. V-Stack interface|
The V-Stack software was also enhanced twelve years ago to incorporate different methods of odour control. However, this methodology has three important shortcomings.
- As each activity is assessed individually, there is no estimate of the contribution to ambient air odour from all intensive farms in an environment. That is, the V-Stack software does not input existing odour levels in ambient air that will add up to the overall odour impact.
- Dispersion model calculations have limitations.
- The estimation of the odour abatement efficiency of the methods, and thus odour emission correction, should be very carefully done. In this respect, a report from Wageningen University showed that the odour nuisance was reduced considerably less by the use of so-called combined air scrubbers in particular than previously assumed when granting permits. According to this report, the combined scrubbers have a mean odour efficiency rate of just 40%.
The plaintiffs in these proceedings are all municipalities with intensive livestock farms nearby that experience odour nuisance. They have called on the State, specifically the State Secretary for Infrastructure and Water Management, to protect them from this nuisance, as they claim the State is failing to do so. In addition, they referred to Article 8 of the European Convention on Human Rights (ECHR), which protects the right to respect for private and family life.
The State put forward a detailed defence and concluded by dismissing the claims. The State argued that the claims should be rejected because they are at odds with the division of labour between legislators and judges.
The court stated that Article 8 ECHR applies not only to environmental nuisances caused by a State itself but also to nuisances resulting from a State's failure to adequately regulate the private business activities generating the nuisance. The court also stated that it is indeed obliged to test whether the legislator has fulfilled its legal obligations laid down in universally binding provisions of treaties. As a result of this, the court takes as its starting point the environmental quality criteria used by RIVM in its reports on odour nuisance. Based on these criteria, an odour load from 19.4 ouE/m³ to 25.3 ouE/m³ qualifies as 'very bad' and higher than 25.3 ouE/m³ as 'extremely bad'. According to the court, an odour standard of 19.4 ouE/m³ is the limit value to determine whether there is an acceptable level of nuisance. For the local residents for whom it has been established that the cumulative odour load on their homes is higher than 19.4 ou/m³, the court concluded that the legal system apparently does not provide the necessary protection that can be expected under the law. This leads the court to the opinion that it cannot, of its own accord, prescribe a maximum odour standard but can and must test whether the Wgv offers sufficient protection in the light of Article 8 ECHR.
In a very interesting post, the solicitor Jeroen Niederer mentions that "I am curious to know how local residents will substantiate their damages in the damage assessment procedure. Material damage could, for example, be substantiated with a valuation of the house, where the value could be compared with houses not located near a livestock farm. Immaterial damage seems to me to be more difficult to prove. Moreover, the statute of limitations doctrine plays a role in determining the extent of damages (5 years after the moment of awareness of the extent of the damage and the identity of the liable person)." We analysed the economic valuation of the odour impact, which you can find here.
In addition, this expert comments that "The conclusion is that the last word has not yet been said on this judgment and on the odour problem surrounding intensive livestock farms. An appeal by the State is the obvious choice."
For those interested in this topic, find here an analysis of the consequences of this regulation made by Mr Jeroen Niederer.
This sentence can be accessed here.
If you find this article interesting, you might also be interested in these articles:
- Managing the Impact of odour emissions from livestock activities
- Regulations concerning odour nuisance caused by animal accommodation used in livestock farming (Odour Nuisance and Livestock Farming Act)
- Estimating Odour Nuisance From a Conventional Swine Farm
- Hugo van Belois in the Odour Talks. Odour Mapping.
- Economic Impact of the lack of Odour Management