The Environmental Liability Directive:
Enhancement or Embellishment of the
Political Influence of Non-Governmental
Organizations?
The conflicting interests between civil society and corporate
monetary interest
Author:
Glenn van Dort
Institute:
University of Amsterdam
Study:
European Studies
Department:
Faculty of Humanities Studies
Primary instructor:
Dr. P.W. Zuidhof
Abstract
From 1963 to 2022, the NAM (Dutch Oil Company) has worked together with the Dutch State to produce gas in Groningen. A major side effect, however, is the advance of earthquakes that have gradually worsened since 1988. Key players in the pressure campaign against NAM and the State are non-governmental organizations and this is striking given the alleged lack of political influence accredited to NGOs by academic writers. This research shows how NGOs are able to influence politics through access, voice or litigation, and will endeavour to explain the factors that determine the
organization’s choice of action.
One of the results is the fact that litigation can be a powerful tool for NGOs to resort to. In Groningen, NGOs have been fighting for the abolishment of gas production. They have done so through the provision of information, publicity stunts, negotiations and court cases.
For this reason, the European Environmental Liability Directive is studied in the case of Groningen to determine the effectiveness of the Liability regime. For, the ELD is by far not the same as was proposed in the Green and White papers.
Acknowledgements
I would like to thank my thesis supervisor dr. P.W. Zuidhof of the Humanities Faculty of the University of Amsterdam. Mr. Zuidhof always gave good and strong feedback and he helped me through all the questions I had. He consistently allowed this paper to be my own work but steered me in the right direction whenever he thoguth I needed it. I’m especially thankful for the time that was allotted to my thesis, regardless of a pandemic and half a world of distance.
I would like to acknowledge dr. P. Rodenburg from the Humanities faculty of the University of Amsterdam as the second reader of this thesis, and I am gratefully indebted to his valuable comments on the thesis.
Furthermore, I want to express my gratitude to everyone in my proximity who have been most encouraging and supportive of me throughout this process. My friends, who have offered to proofread and brainstorm. My family, who would listen when I needed to talk..And the Kidder family, who have been very patient for the past half year in allowing me enough time to finish writing.
This accomplishment would not have been possible without everyone’s support. Thank you.
Table of Contents
Abstract ... 2
Acknowledgements ... 3
List of abbreviations ... 6
Introduction ... 7
1. From De Pous to Wiebes ... 12
1.1 Introduction ... 12
1.2 Chronology ... 12
1.2.1 1959-1986: Field discovery – first earthquake ... 12
1.2.2 Period 1986-2012: increasing seismicity ... 14
1.2.3 Huizinge (2012) – 2019 ... 17
1.3 Conclusion ... 21
2. Civil Society: An NGO’s Political and Litigation Power ... 23
2.1 Introduction ... 23
2.2 Receptivity determinants ... 24
2.2.1 Institutional receptivity ... 25
2.2.3 Interest group and issue determinants... 26
2.3 Litigation strategy ... 28
2.4 Conclusion ... 30
3. Civil society in action ... 32
3.1 Introduction ... 32
3.2 Growing dissatisfaction ... 32
3.3 The Groninger Bodembeweging ... 34
3.3.1 Groninger Access Beweging ... 35
3.3.2 Groninger Voice Beweging ... 37
3.4 Conclusion ... 39
4. The ELD in Groningen ... 41
4.1 Introduction ... 41
4.2 EC Environmental Liability Aspirations ... 41
4.2.1 The Green and White Paper... 41
4.2.2 The ELD outcomes ... 43
4.2.3 ELD transposition into Dutch law ... 44
4.3 Breakthrough lawsuits ... 44
4.3.1 GBB and co. vs. NAM ... 44
4.3.2 Stichting WAG and Co. vs. NAM ... 45
4.3.3 Plaintiffs vs. NAM and EBN ... 46
Conclusion ... 49
Bibliography ... 53
Primary Sources: ... 53 Judgements ... 53 7.1.2 Official Documents ... 53 7.2 Secondary sources: ... 54Appendix I: Interviews ... 60
List of abbreviations
Bcm: Billion cubic meter
BOA: Guidance Commission Research Earthquakes
CC: Civil Code
CDA: Christian Democratic Appeal
CoS: Council of State
Council: Council of State
EBN: Energiebeheer Nederland
EC: European Commission
EK: Expert Knowledge
ELD: Environmental Litigation Directive
EL: Environmental Litigation
EP: European Parliament
EU: European Union
GBB: Groninger Seismicity Movement
KNMI: Royal Dutch Meteorological Institute
LOS: Litigation Opportunity Structure
MP: Member of Parliament
NAM: Dutch Oil Company
NCG: National Coordinator Groningen
OVV: Dutch Safety Board
POS: Political Opportunity Structure
PvdA: Dutch Labour Party
SodM: State Surveillance of the Mines
SoR: Scale of Richter
SP: Socialist Party
US: United States
VVD: People’s party for Freedom and Democracy
Introduction
On November 9th, 2019, the Groningen regional newspaper Dagblad van het Noorden, reported that “For ten years the Groninger BodemBeweging fights for the interests of the population of the gas area. […] The Gas struggle – that is almost done right? The faucet closes in a few years, damage claims are nowadays rather fluent, and the reinforcement will continue next year, right?” (Van Hofslot and De Veer, 2019). In this article, the non-governmental organization Groninger BodemBeweging is attributed to have played a key role in the latest political developments around Dutch gas production. This is at odds with major findings of academic researchers who suggest that NGOs, as
unprofessional, civil organizations hardly manage to influence politics (Bouwen, 2002; Dur and Mateo, 2012; Dur and De Bievre, 2007). How, then, has the GBB facilitated such dramatic changes that will lead the Dutch government to miss out on billions of extra gas production revenue?
The Netherlands, while tiny on the map, is the host of the largest on-shore natural gas field in the world, and 10th largest including off-shore. The field is in Groningen, a North-Eastern province of the country. When the Groniningen gas field was discovered in 1959, it was estimated to contain no more than 60 billion cubic meters (bcm) of natural gas, yet as time and research progressed the Nederlandse Aardolie Maatschappij (NAM, the Dutch Natural Gas Company) realized that they had hit upon a massive field of approximately 2,800bcm. When speaking of the ‘Groningen gas field’, people commonly refer to the field of Slochteren, yet there is a multitude of smaller gas reservoirs surrounding the main field, scattered through the Northern provinces Groningen, Friesland, Drenthe, and the North-sea. Together these are reportedly another 1,722 bcm, making the total reservoir 4,522bcm. During the 1960’s the Dutch government under Minister of Economic Affairs De Pous had transitioned the country by laying down an extensive gas infrastructure and an elaborate campaign saw to it that every household and industry was connected to the abundant low-calorific Groningen gas. The rest, about 60% of the yearly production, was exported primarily but not exclusively to Belgium, France, England and Germany. These revenues are known as the Aardgasbaten (earth gas revenues) and proved to be a significant merit to the government’s income. The total state revenue that has been acquired from February 1959 to May 2019 is nearly 417 billion Euro (CBS, 2019). It helped the government with a post-war proliferation of the social-democratic welfare state and the Netherlands was one of the first European countries to fulfil the Copenhagen economic criteria to join the European Union, a feat that was considerably easier due to low state debt (Correlje et al, 2002). Whereas the Groningen gas field came with significant economic advantages, it had its disadvantages as well. First, economically speaking, the gas revenue allegedly made government expenditure behaviour lax and the politicians care-free. Economic downturn could still hit the economy, yet the heaviest blows would be diverted by using the extra revenue. Former minister of Economic Affairs Lubbers had called the revenues out as a curse because, he said, his colleagues would ‘think too freely about finances’ (Correljé et al., 2002, p.76). Second, the prolonged extraction of natural gas has
caused, and is still causing, earthquakes in the proximity of the Slochteren field (Van Eck et al., 2006; Meijers et al., 2013; OVV Rapport, 2015; Meijdam et al., 2015). The latter situation is the main cause for this research.
In the 1980s, the first seismic activity consisted rather of earth tremors and was hardly noticeable, yet they worsened over time. Since 1990, the Groningen epicentre(s) has experienced around 350 earthquakes with a force higher than 2 on the Scale of Richter. The most notable of these are the earthquakes at: Westeremden in 2006, Loppersum in 2008, Garrelsweer in 2011, Huizinge in 2012 and Zeerijp in 2018. Each ranged in strength from 3,2 to 3,6 on the Scale of Richter, and each shook the Groningers. In the beginning the earthquakes did not receive much political attention, as they were mostly unnoticed. Later earthquakes, however, caused many buildings to be damaged slightly to moderately, and in some cases old farms suffered heavy structural damage. At first it was disputed by NAM, the operator, and Staatstoezicht op de Mijnen (SodM, the State Mining
Surveillance) institute, whether the earthquakes were actually caused by gas exploitation. Land subsidence as a result from a pressure drop underground was already recognized and taken into account in future damage prevention plans. Earthquakes on the other hand are rare, yet they are not unheard of in similar situations elsewhere.
In March 2018, Minister of Economic Affairs and Climate Policy Eric Wiebes decided to prematurely end gas exploitation activities according to a plan of gradual reduction. Such
announcements had been made earlier, yet this was the first time that Wiebes or his predecessor Henk Kamp promised to bring production to zero, rather than deplete the field with a low production rate over a longer period of time. The minister proposed in his latest announcement in July 2019 to stop even earlier than was planned, by 2022, with the possible extension to 2025 in unusually cold winters. This means that according to estimates approximately 500bcm will remain in the ground by 2025, when production was planned to stop, effectively making the Groningen gas field a stranded asset. What then, causes this lucrative business to cease production? The government’s plan to reduce gas production over a number of years has been attacked, and consequently changed, repeatedly. One cannot help but assume therefore that the decisions were made reluctantly and under pressure. Minister Wiebes has argued he “would do whatever he could” (Dagblad van het Noorden, 2018) but that a sudden stop of production is “impossible” due to our reliance on its supply and due to running export contracts that still have to be fulfilled, only to reduce production further in the following year. Only after mounting civil resistance did NAM, as some researchers say, lose its ‘social license to operate’ (e.g. Van den Beukel and Van Geuns, 2019) and did the government give in to pressure. In another interview with Dagblad van het Noorden, Minister Wiebes said that:
…when we stop with gas production, it will become much safer. For ten years we have had that call from Groningen and now we are getting to say: ‘you are right’. (Van Hofslot and De
He goes on to mention the call from Groningen citizens, and how they protect ‘their Groningen’. In this statement Wiebes makes clear there was a constant pressure from one or more civilian groups in Groningen to (fully) stop gas production. Here he acknowledges the influence of the civil resistance, as is proliferated by issue-specific interest groups: non-governmental organizations.
Non-governmental organizations are is a group of civilians who cooperate for a specific interest and in doing so, attain advantages over individual political influence. A few examples include: the longevity that is more than just one person’s involvement, the access to specific credits and funds, and goal stability (LexArtifex, 2020). Still, a middling NGO has nowhere as many funds as a major private organization. A few questions arise from this. Firstly, NAM and the State are powerful interests, private and public respectively, who even benefit from each other. How can a non-governmental organization, often depending on donations and volunteer work, manage to influence politics on national level? Many organizations are involved within Groningen, the most prominent of which are industries, construction companies, advisory and supervisory institutes. Initially, most experts in the field had conflicting interests with NAM, which was the reason why a group of experts decided to create their own platform for independent information. Their primary goal was to help citizens with damage assessments (OVV, 2015). The second question is, therefore, what has changed over the course of a decade? Much has happened to convince the Dutch State that reducing the safety risk in Groningen was of more value than the supply security and money that the government would earn. Yet, Minister Wiebes makes clear that only now, after 10 years, they are on the verge of admitting the Groningers were right. This returns us to the question; how do non-governmental organizations really influence politics?
The scholarly debate concerning the influence of interest groups is an ongoing process, tracing its roots back to Truman (1951), but has only recently picked up the pace concerning groups within the EU. Whereas the research focusses primarily on business organizations in the USA, this shifted to special interests lobbying the European institutions (Benett, 1999; Bouwen, 2004a; Bouwen, 2004b; Beyers, 2004; Eising, 2004;Beyers, 2008; Bouwen and McCown, 2009; Hayes-Renshaw, 2009) and belated but increasing attention is given to the influence and strategies conveyed by civil groups such as non-governmental organizations (Betsill and Corell 2001; Dür and De Bièvre, 2007; Binderkrantz, 2008; Binderkrantz and Krøyer, 2012). It has become common sense in the literature that interest groups can exert influence through three distinct categories of action: by seeking Access, using Voice, or engaging in Litigation. There is a whole subcategory of civil society research discussing how unresponsiveness or bias towards civil interests influences their choice of political strategies.
This leaves NGOs to use voice to pressure the government or engage in litigation to take cases through court. One determinant seems to be, but not conditionally so, that the NGO faces a favourable Litigation Opportunity Structure (Conant, 2002). The European Commission has undertaken a series of steps to increase the LOS of NGOs. Two of these stand out: the Aarhus Convention of 1998 and the
European Environmental Liability Directive of 2004. First, the Aarhus Convention had set standards that enabled civil groups to suddenly have locus standi, meaning, the right to bring certain cases to court. Its level of implementation is a matter of debate still. Second, the creation of the European Environmental Liability Directive (ELD) (2004/35/EC) falls in line with the European Commission’s ‘green justice’ reforms of the early 2000s. The ELD would increase the possibility of holding
operators liable to various Environmental duties, according to its plans in the White and Green Papers. A problem, however, is that plans for legislation may differ in reality. European Environmental law generally has notoriously low and uneven levels of implementation (Knill and Liefferink, 2007). For that reason, cases concerning the ELD should be studied separately. As it may, the dispute around Groningen gas has revolved significantly around litigation against NAM and the Dutch state, the joint operators. Private citizens and NGOs brought a number of cases before court, and manifold more to the specially installed Groningen arbiter. To what extent has the ELD’s implementation supported these cases?
This paper researches how NGOs, constituting of ‘mere’ civil interests, have been able to force the government to make a decision that has considerable negative economic consequences. First, it will be studied how NGOs are able to influence politics, given that they are allegedly ‘included without power’ (Dür and De Bièvre, 2007). As such, substantial research accuses policy makers of having an alleged bias in favour of special interests, despite the EU´s inclusion of a civil society around the EU institutions in an attempt to be more democratic and inclusive. How does this play out in the case of Groningen? Was there a bias, and if so, how did civil society handle it? Second, it will be studied whether the Environmental Liability Directive has increased the likelihood of Dutch NGOs’ winning their court cases against NAM and the Dutch State. In short, this work will try to answer the following two questions:
RQ1: How were non-governmental organizations able to influence the politics surrounding gas production in Groningen, the Netherlands?
RQ2: To what extent did the implementation of the European Environmental Liability
Directive into the Dutch civil code reinforce the NGOs in court in their fight against NAM and the State?
Answering these two questions is relevant for two reasons. First, despite NGOs’ alleged lack of influence (Dür and Bièvre, 2007; Dür, 2008a; Dür, 2008b; Greer et al., 2008; Hess and Satcher, 2019) and their initially low coverage in the Dutch media, they have become central in supporting the inhabitants of Groningen. As actors that play a central role in civil mobilization, it will be examined what types of actions they specifically do, and if possible, discern why. Second, the US government
documented through case studies. The ELD is relatively new and lacks empirical cases to test its effectiveness (Winter et al., 2008). The ELD’s implementation into the Dutch civil code and mining laws is cited in many cases surrounding induced earthquakes in Groningen, hence the choice to use this situation as an example. We will see if the ELD had any significance to the Groningers by analysing the most impactful cases.
In order to answer the two questions, the research will start in chapter one with a brief history of gas exploitation in the Netherlands and the main political events surrounding the subsequent earthquakes. This chapter discusses what the advantages and disadvantages of gas exploitation are. Since
earthquakes do not naturally occur in Groningen, it will be explained how oil and gas exploitation has been able to artificially induce earthquakes as a result from our underground activities. Attention will then be given to the developments in the political perception of the safety risk to the Groningen citizens. Chapter two will go into detail about the three main channels through which interest groups are able exert influence on regulations. This chapter will describe the myriad of motivations an interest group may have to choose one or more of each category of strategies. It will highlight two types of interests, the civil/diffuse interests against special/concentrated interests. This terminology will be used interchangeably. In the third chapter a brief account is given about NGOs’ past actions through Access, Voice or Litigation strategies concerning Groningen. This will be done by taking a close look at the most prominent anti-gas production NGO: the Groninger BodemBeweging (Groningen
Seismicity Movement). In order to get an accurate perception of their actions and development over time, all eighty-eight of their monthly newspapers will be analysed. Chapter four will take the
Groningen case as an example of how litigation managed to prevail over the other strategies. This will be done by giving an account of the ELD’s inspiration and development and consequent
implementation. Then, it will be discussed how the ELD has potentially increased the NGOs’ chances in winning in court, by analysing the most impactful lawsuits that have been taken against producer NAM and stakeholder the State.
1. From De Pous to Wiebes
1.1 Introduction
In this chapter the history of the Groningen gas field will be discussed, along with the advantages and disadvantages that it meant for the Dutch society. For a long time, the NAM was celebrated for giving Groningers something to be proud of, but most importantly, it delivered job opportunities. The change towards civil resistance was one of gradual development. By analysing the key political moments from 1963 to 2015, using rapports and parliamentary documentation, the chapter will try to find out why it is that the civilians became disillusioned with ‘The Hague’. By understanding the political history behind gas exploitation, one may get a perspective why they decided to take matters into their own hands. For decades the Dutch government has been able to rely upon the gas revenues to complement their income and stem the government’s spending deficit. Regardless of the benefits the gas
exploitation gave to the Dutch, it also had its disadvantages for economic reasons and, ultimately, seismic activity in the general exploitation area.
1.2 Chronology
While at the present day it is undisputed that earthquakes in the North-East of the Netherlands are caused by gas exploitation, this was not always the case. What is more, gas exploitation has become something negative and destructive in people’s minds, yet for years it was the other way around. To understand this change, it is important to look at the benefits and damages since the start of production in 1959. The chronology surrounding earthquakes can be divided into three periods. First, the period from 1959 to the first (recorded) earthquake in 1986, in which the key issues were the allocation of the gas, gas revenues and prognoses of subsidence. Second, the period from 1986 to the much heavier earthquake of 2012 in Huizinge, and the third period covers the political turmoil and increasing seismicity from 2012 to the present day.
1.2.1 1959-1986: Field discovery – first earthquake
In 1959, NAM discovered the Groningen gas field. Minister of Economic Affairs De Pous decided that the gas production had to be managed. This was settled in 1962 with the Nota De Pous, which divided the responsibilities of gas production. The system taking care of the production and delivery process was decided, using contemporary company names, as follows. The Dutch State is the full owner of EnergieBeheer Nederland (Energy Control Netherlands), and alongside the Nederlandse AardolieMaatschappij (Dutch Oil Company), a joint venture of Royal Dutch Shell and ExxonMobil, it has established the Maatschap Groningen (Partnership Groningen) to take care of the exploration and exploitation of the Groningen gas. The Maatschap then sells the gas to a company called GasTerra, that is made up of the Dutch State, EBN, Shell and Exxon. Gasunie (Gas Union) is owned by the State
GasTerra used to be the same company until European liberalisation policies forced GasUnie to split into a trading company and a transportation company. Maatschap Groningen and GasTerra together are also known as the Gasgebouw (Gas Structure), figuratively speaking (NAM, 2019). The authority SodM (State Surveillance on the Mines) is charged with the safety and environmental hazards related to mining activity, the gas network and wind energy from sea (SodM, 2019). The exploitation rights are officially restricted to NAM, and it is not possible to see its documents since the organization has no obligation to register with the Chamber of Commerce and consequently it has no obligation to publicize its organization details. In a letter from 1963 it is stated, however, that the Dutch State is partly responsible for the exploitation activities (Scholtens, 2018). This would come in as important evidence in damage claims of induced earthquakes. The division of responsibilities created a semi-transparent public-private collaboration, where initially the State would get a 75% share of the profits. This share would change through negotiations, depending on the oil price, to a 90%-10% division. As per 2014 this has led to a total profit of 288 billion Euro for the State and 29 billion Euro for NAM (Algemene Rekenkamer, 2014).
When NAM began gas production in Groningen in 1963, the region’s inhabitants were mostly content with the backyard activities. People were proud of the production and even though the
government’s share of the Aardgasbaten (gas revenue) went to the country in general, it had advantages for the Groningen people. First, a local gas discount policy incentivised major energy consumers such as Aldel to move to the region and create jobs opportunities. Second, farmers could earn lease incomes from NAM and thirdly, NAM organized a number of activities on local level as part of her donation policy (van den Bosch, 2002; Bommer et al., 2017)
It was already known from the start that producing a gas field of this volume could eventually lead to ground subsidence and this was taken into account in early projections. Subsidence happens when pressure is removed from under the ground; e.g. the Groningen gas was projected to be under a 350-bar pressure under the Rotliegend Sandstone layer, and estimates point out that it dropped to 60 bar, as per 2017. 60 Bar is insufficient to hold the three kilometre of stone overhead and the ground then sinks (NAM, 2019; EPA, 2019). Groningen has historically been above sea level, and one fear was this might change in some areas, especially with rising sea levels (Gussinklo et al., 2000). As soon as 1983 the first agreement was signed between NAM and the provincial representatives of Groningen regarding the forecast subsidence. Neither parties felt responsible for the damage that subsidence could cause to infrastructure and water works. Initially, NAM proposed that the exploiters, including the State, should contribute to the repair and prevention costs. However, when it became clear that the State did not feel responsible, NAM retracted that statement in 1976 and claimed there was no legal basis to hold NAM accountable. After negotiations it was concluded that NAM would pay up to 650 million guilders, unless the subsidence was more than 30cm, and damage exceeds 650 million guilders (Schenk and Timmer, 2009; OVV, 2015).
1.2.2 Period 1986-2012: increasing seismicity
The very first induced earthquake that has been recorded, and which was linked to gas exploitation, occurred in 1986 near Assen, in the province of Drenthe. This earthquake had a force of 2.7 on the Scale of Richter (SoR) and was followed by a number of tremors that also happened right above gas fields: in 1987 near Hoogdalen, in 1989 in Purmerend and in 1991 the first earthquake occurred above the Slochteren field. The earthquakes occurred in areas where there is no natural seismicity and therefore were an anomaly for KNMI and NAM experts (OVV, 2015). The period 1989 to 2012 is therefore characterized by an increase in seismicity, the uncertainty as to what caused the earth tremors and the consequential researches that were conducted on their nature. See graph 2.1 for the total number of recorded earthquakes since 1990. With the knowledge of today it is now clear how gas exploitation is able to cause earthquakes; by removing pressure for under the sealing stone layer, the stone layer may break and instead of gradually sinking down, it does so in sudden shocks that ripple through the earth. Since the Rotliegend Sandstone layer is relatively close to the surface, these shocks of seismic energy are sent to the surface. The contested question, however, is how much seismicity it can cause and what the maximum magnitude is. See image 1.2 for a schematic cross-section on the Groningen gas field and the fault lines underground.
Image 1.2: Groningen Gas field schematic representation
Source: USGS
As soon as 1989, dr. M. W. van der Sluis argued in a research paper that the earth tremors were possibly directly caused by gas exploitation and he argued through media that NAM was to be
held accountable for the seismicity and the damage that follows (Van der Sluis, 1989). NAM denied the link and claimed that there was minimal evidence of what caused the tremors, and so NAM could not be held accountable. NAM, in accordance to KNMI, instead argued for a network of seismicity meters that would be able to better show conclusions (OVV, 2015). After Van der Sluis got media publicity for his claim, the Province of Groningen’s confidence commission wanted to test the theories. It referred to a second opinion of two Massachusetts Institute of Technology professors who regarded the probability of earthquakes minimal. For a ‘third opinion’ the commission also asked the Technical University of Delft to delve into it. In their rapport of 1990, TU Delft denied the theories of Van der Sluis, saying they were not impossible but low in chance and that more possible causes have to be considered (OVV, 2015).
In 1989, the Parliament organized a debate where MP’s used the opportunity to ask questions that were especially technical in nature. MP’s wondered at the tremors and voiced concerns about of the KNMI’s assertion that changes in air pressure were to blame, and not underground activity. The minister of Economic Affairs stated that the tremors were possibly earthquakes but that it is
impossible to conclude with the current knowledge. In 1989 he gave the KNMI the responsibility to install and handle a network of six seismometers near Assen. The network has been succeeded by a new and extensive network since 1993 that operates until today throughout Groningen and North-Holland (OVV, 2015; KNMI, 2020).
1991: Geelbroek (2.6 SoR), Eleveld (2.7);
1992: Geelbroek (2.6), Roswinkel (2.6), Eleveld (2.6);
1994: Roswinkel (2.9), Stedum (2.7), Middelstum (2.7), Alkmaar (3), Alkmaar (3.2);
During the first years of explorative research, all parties involved with gas production denied the causal link between production and earthquakes. This started to change, however, with the multi-disciplinary rapport of the Begeleidingscommissie Onderzoek Aardbevingen (Executive Commission Research Earthquakes), that the Ministry of Economic Affairs and Ministry of Infrastructure had installed. Their research took two years and it came to the conclusion that gas production can indeed, under the right circumstances, be the cause for earthquakes, but that the maximum force of 3.3 SoR can cause no major structural damage. In the wake of this conclusion, NAM stated that it is not possible to argue that there is no link between gas production and earthquakes (BAO, 1993; OVV, 2015).
1995: Roswinkel (2.7 SoR);
1996: Roswinkel (2.6), Roswinkel (2.7); 1997: Roswinkel (3.4);
1999: Roswinkel (2.8)
Whereas the BAO rapport argued no structural damage was likely, this changed after the 1998
earthquake above Roswinkel which had a force of 3.4 on the Scale of Richter. The previous estimated maximum magnitude of 3.3 SvR was immediately debunked. The KNMI changed the cap to 3.8 on SoR based on data collected through tremor measurements (de Crook et al., 1998). They now
predicted that many buildings will have slight damage, and only a few buildings can receive moderate and light structural damage. The KNMI also stated that seismicity had remained constant and was unlikely to increase. After the year 2000, the number of earthquakes has increased significantly (see graph 1.1)
Graph 1.1: earthquake total with magnitude
Source: NAM 2019; KNMI 2019
In 2004, the Dutch Parliament introduced a new mining law. One major change that was introduced was that NAM was from now on required to hand over production projections to the MEA. NAM did so for the first time on 19 December 2003 and the plan was accepted after the minister checked it for all safety requirements. The plan described the expected subsidence above the centre area, and that two to three earthquakes were expected per year with a maximum magnitude of 3.8 SoR (MEZ, 2004). After it became clear that earthquakes were increasing in number, NAM proposed an adjusted production plan in 2007. By now, NAM had developed a production strategy until the field’s depletion. Originally the field would be depleted by 2040, and according to the new plan this would take until 2068. The minister accepted the new plan (OVV, 2015).
Throughout the years 2009 to 2012, NAM had been conducting a structural mapping of the Groningen gas field known as the Groningen Field Review (Burkitov et al., 2016). When it was finished, SodM requested of NAM a proposal about how to minimalize future induced seismicity, since a new production plan was due. NAM denied the request, saying that the Review only focused on production methods that were necessary because the field only had about a quarter of its original volume. The Review had been adapted to measure possible seismicity (OVV, 2015; Kurkitov et al., 2016).
Next, in 2012, the KNMI published a rapport that summarized all seismologic measurements that had been collected up until the year 2010. Analyses of the data concluded that the seismicity above the Groningen field was different than that above the rest of the fields. From 2003 onwards, the Groningen field was the most seismically active relative to the other areas, and the estimated maximum magnitude remained constant at a level of 3.9 on the scale of Richter. However, at the same time the KNMI concluded that the seismic energy has steadily increased since 2001,
including both weak and more powerful earthquakes (Dost, 2012). The ground-breaking part is that up until now it was asserted that seismic energy was to remain on a constant level. In reaction to this research, NAM translated this in the Groningen Asset Reference Plan of 2012. It argued that most future earthquakes will not be able to cause damage to structures but that a few might be weak enough to cause limited, not structural, damage (OVV, 2015).
1.2.3 Huizinge (2012) – 2019
On the 16th of August 2012 the heaviest earthquake that the KNMI had so far recorded occurred in
Groningen in the close proximity to Huizinge. It had a magnitude of 3.6 SoR and was different from previous cases because its duration was longer and it had several after-tremors (Dost and Kraaijpoel, 2013). People ran onto the streets to seek safety and local news channels covered all events until late in the night. The damage was substantially more than previous cases (OVV, 2015). This earthquake is seen as a turning point because NAM, and indirectly the State, was starting to lose its social license to operate, meaning that the inhabitants of Groningen were becoming unsatisfied with NAM’s gas production side effects. More on this in chapter three. As civil unrest increased, so too did the pressure on then-MEA Henk Kamp and NAM to take more drastic action.
In the aftermath of the Huizinge earthquake, SodM warned that previous rapports by KNMI and NAM were insufficient to explain the increasing seismicity and higher magnitudes. Neither the KNMI nor NAM thought further research was needed at that point (OVV, 2015), so SodM conducted its own analysis. It stressed that the annual number of earthquakes kept increasing and that the
maximum magnitude was impossible to predict by using seismologic data only, but that geomechanics calculations were required. The previous years, NAM had increased the annual gas production
considerably, from 28bcm in 2004 to 54bcm in 2012, while SodM established a positive link between the maximum magnitude and the production speed (Muntendam-Bos and De Waal, 2013). Upon
reaching this conclusion, SodM sent a letter to the Minister of Economic Affairs, stating that, without certainty but looking at similar cases abroad, the maximum magnitude would be between 4 and 5 on SoR. It advised the minister to lower production as soon and as low as is realistically manageable. However, the minister did not heed this advice and argued that he received different, conflicting information from other entities so the advice by SodM was not deemed sufficient to contradict current policies (OVV, 2015). Instead, the minister published a series of other measures. NAM, together with the Netherlands Organisation for Applied Scientific Research and inhabitant representatives set out to support vulnerable structures, and when buildings become unsafe NAM would compensate up to ‘reasonable amounts’ according to to-be determined criteria. Additionally, NAM promised to organize information evenings (Kamerstukken, 2013).
In May 2013, the provincial government of Groningen installed a commission named Duurzame Toekomst Noord-Oost Groningen (Sustainable Future North-East Groningen). The
commission was chaired by mr. Meijer, after whom it has become known for. The commission was to be an independent advisory body concerned with the regions above the Groningen gas field. On the 1st
of November the commission presented its final conclusions. Their program consisted out of three main strands: safeguarding the safety and future of individuals and organizations, guaranteeing residential and environmental quality, and develop a sustainable perspective for the area. The details of execution, however, were left to NAM and the government (Meijer et al., 2013).
The debate regarding production reduction seemed to be split along partisan lines in the parliament, as is apparent from the Second Chamber’s debate and general consultation of February 7th
and March 29th respectively. The two ruling parties VVD (People’s Party of Freedom and Democracy)
and PvdA (Labour party) received much criticism from the opposition, who mainly argued that gas exploitation cause increasing earthquakes and fear in Groningen, that the NAM and Minister of Economic Affairs places money above people and that production has to be stopped. In this they referred to previous KNMI and SodM rapports. The VVD, also known as the ‘liberal business party’ argued that whereas it cared and worried for the inhabitants of Groningen, the production level was bound to contracts that were already signed with 3rd parties. It stressed the importance of Groningen
gas for the Dutch society and the Dutch dependence on the Groningen energy supply. The conclusions of so-far conducted researches provided insufficient information whether a drastic reduction in production would reduce earthquakes as well. It would, however, lengthen the total production time and thus also the earthquake period. The VVD promised to infuse an extra hundred million euro for preventive measures. The PvdA was accused of having a Janus-face by the CDA (Christian
Democratic Appeal) and GroenLinks (Green Left), when they noted that the PvdA tried to play a people’s champion in the media, while being reluctant to make actual concessions as member of the coalition (Kamerdossier 33529-2, 2012/2013; Kamerdossier 33529-19, 2012/2013).
As of 14th of April 2013, the Minister introduced Leendert Klaassen as the new National
Coordinator Groningen, who is to serve as an independent consultant. In addition to this advisory role, the Groningen Provincial government ordered officials Van Wallage and Van Geel to establish a central point of discussion, a ‘Dialogue Table’, in accordance to one of the measures of Commission Meijer. It consisted of representatives of the Province, NAM, the government, citizens and other involved parties (NAM, 2020). In Huizinge, the representatives formally signed a support declaration for the complete Commission Meijer advice report.
On June 3rd, 2013, the Minister of Economic Affairs had announced in a letter to the
parliament (Kamerstuk 33529-25, 2013/2014) that he had been waiting for the completion of eleven researches, in order to decide on the safety NAM’s next production plan. The researches focused on possible structural reinforcement of buildings, the house price developments, easing the NAM damage compensation process, and a QuickScan of vital infrastructure. On basis of this information, the cabinet, along with independent third-party consultants, made a production plan while stressing the need for Dutch gas supply. One of the early results found that the house market above the Groningen field was not hit worse than in other areas (Francke and Ming-Lee, 2013).
The year 2014 was a rather unexciting political year. The parliamentary debate on the 5th of
February, did not yield different answers than the previous debate. The minister of Economic Affairs was further occupied with informing Groningers about the new production plan and the 1.2 billion Euro that had been made available for damage compensation and prevention. Meanwhile, NAM introduced their new damage compensation protocol, which stated that NAM would make a
compensation offer to anyone whose house dropped in value due to gas production. If the owner did not agree he himself had to contact a certified expert for a second non-binding opinion. NAM paid the second opinion visits except for the first 300 euro (NAM, 2014). The Parliament held an emergency debate after the heavy earthquake near Ten Boer, during which the opposition had harsh words for the Minister of Economic Affairs. The MEA and NAM were accused of doing too little of their promises: preventive constructions were too minimal, NAM damage claims took too long or too low, production levels were still higher than SodM’s advice, and the ‘dialogue table’ was expensive and too elitist (Handelingen II, 2014/12).
In 2015, a number of pivotal events took place that have increased the pressure on NAM and the MEA. Both NAM and the Minister still pursued the course of achieving maximum production insofar it would not hurt their social license to operate; this meant lowering production and appeasing inhabitants with damage claims and sending representatives to the dialogue table. However, a report by the Dutch Safety Board (OVV, 2015), OVV hereafter, came out that assessed the level of safety of people and building in the risk areas. The score was low, yet what struck hard was the conclusion about action taken thus far. The report had three partial conclusions. First, the OVV found that the decision making was mainly made by the Ministry of Economic Affairs, GasTerra, GasUnie and NAM. This means only three actors have much weight: the MEA, Dutch Royal Shell and
ExxonMobil. This leaves too little counter influence and a disregard of safety for the sake of profit. Second, the involved parties have had concerns for a certainty among Groningers and the researches that have so far been conducted, by NAM, SodM and KNMI, are insufficient to absolve the insecurity. None of the actors have taken the security serious enough and even SodM should have sounded the alarm earlier. Third, NAM, MEA and SodM had a major a lack of communication with civilians about the complexities of the decision making, the interests and uncertainties surrounding earthquakes. Most information focused on the maximum magnitude and material damage but did not address to calm and assure people. Therefore, the report said, communication was rather ‘about’ civilians, and not ‘with’ them.
During the first half of 2015, the Parliament held two debates and two hearings, one for each in order to discuss NAM’s latest production plan and the Security Board report’s conclusions. During the debates, the Minister received much criticism from opposition MP’s, who expressed their
disapproval on how the safety factor had been disregarded. The VVD defended itself by admitting to wrongdoing, saying it would take measures accordingly to the report, but that energy supply security was and remained a barrier issue and therefore VVD’s promises are received with scepticism (Tweede Kamer, 2015).
Meanwhile, the Parliament debated on 14th of April, then voted on the 28th, on the proposal to
review the Mining Law and to add an amendment containing the reversal of the burden of proof specifically for the Groningen field. The vote passed unanimously in both the Second Chamber and the First Chamber but did not go into effect until its ratification on 21 December 2016 (Tweede Kamer, 2020; NAM, 2020). The law’s Groningen-specific amendment was ground-shifting for all parties involved with damage claims: the government, NAM and regular citizens. Before this it was the citizen’s responsibility to prove that the damage was caused by NAM’s exploitation activities; this changed radically so that NAM now had to prove that it did not cause the damage.
In December, Commission Meijdam, not to be confused with Commission Meijer, presented their report on construction safety above the Groningen field (Meijdam et al., 2015). The advisory statement for which it has become known is the Meijer-norm. This guideline has since been taken into account by the government. The norm prescribes the maximum acceptable chance that any person might be fatally wounded as the result of a collapsing building or falling parts as a result of earthquakes. The Meijdam-norm has this determined at a level of 5 to 10 per year; in other words, each individual should have a maximum chance of 1 out of 100.000 per year of dying from an earthquake. This is the same chance that the rest of the Netherlands risks due to the threat of other natural disasters, e.g. floods or storms. However, a temporary safety norm of 1 out of 10.000 per year has been maintained because part of the buildings require reinforcement (Meijdam et al., 2015; SodM, 2020).
activities, as soon as active contracts allowed and as soon as domestic demand could be substituted. The new MEA, Eric Wiebes, in office 23 October 2017-incumbent, and NAM had been under much pressure from citizen resistance, rising damage claim costs, and Council of State decisions. Each had been facilitated by citizen organization that made good use of the reversal of the burden of proof at the Arbiter, the Court of Northern Netherlands and the Council of State. The organizations functioned as catalysators who rallied and supported civilians.
1.3 Conclusion
The political history of Groningen gas production and its consequential induced earthquakes
can thus be divided into three key periods. They are characterized by the level of seismicity
on the one hand, and the involved parties’ perceptions of the situation on the other. Firstly,
during the initial period from 1959 to 1986, no actor had issues with NAM’s exploitation
activities. On the contrary. The Dutch government profited significantly over the years, so
much so that it staved off the worst economic recessions and saw the proliferation of the
Dutch welfare state. NAM and the Groningen inhabitants have had a beneficial relation, as
NAM had provided extra jobs and farmers could make additional income by leasing out
drilling ground. Ground subsidence was expected, with varying estimates over time, and taken
into account. No safety danger was perceived.
When the earthquakes just started taking place, the parties involved maintained that
there was too little proof that the tremors were linked to gas production. Even after the link
was officially recognized by both NAM and the Dutch government, it was seen as a minor
risk that could be fixed with damage compensations and reinforcing threatened structures. The
government, the KNMI, SodM and NAM conducted several studies each, with varying
results. During this period the population was mostly dissatisfied with the compensations, but
no major safety hazard was perceived, nor did it receive political attention more than usual.
The earthquake in Huizinge of 2012 is considered a turning point in different respects.
The earthquake itself was experienced different because it was relatively heavy, near village
and had several aftershocks. Researches were starting to show that the maximum magnitude
was probably higher than anticipated and the Safety Board’s conclusion, that people’s safety
was insufficiently taken into calculations, struck many people. While NAM and the cabinet
were reluctant to give in, years of increasing political and societal pressure caused the
Minister of Economic Affairs to gradually lower annual production until in 2019 it was finally
decided production would come to a complete halt. The civil organizations in Groningen
played a pivotal role in the pressure campaign to curb the NAM and the State in their alleged
risk-exposing production.
Yet, it is clear that over the years, civil society has started to reject the sooth-and-delay
tactics of NAM and the State. As we know, NGOs are the catalysts of civilian discontent.
How do civil organizations, that are usually smaller and less endowed with resources, manage
to influence politics, if at all?
2. Civil Society: An NGO’s Political and Litigation Power
2.1 Introduction
The previous chapter strongly suggested that the civil society turned against the producers due to a lack of concern for civilian safety. Given that NGOs are a medium for civilian interests, it can be assumed that regional, issue-specific NGOs have played a role as mediator for civilian interests in Groningen. This chapter will study how big their role was and through which categories, which avenues, of actions do they consider, to what extent? It will be analysed how interest groups are able to influence politics in general, and, more importantly, what facts determines whether an NGO engages in either of the categories? This is important to know because it may give an answer to why NGOs, regardless of their lower resources, might have taken on powerful private interests that even works together with the authority. Furthermore, NGOs are a distinctive but substantial sub-category, as seen in the European Transparency registry making up 26.49% of all interest groups lobbying European institutions (EU Secretariat-General, 2020).
Considerable research has been conducted addressing the problems of assessing interest group influence. The question is what roles civil groups play and to what extent they are capable of using the political arena and the legal arena against private interests, or in other words, to what extent does a favourable or unfavourable Political Opportunity Structure (POS) and Litigation Opportunity Structure (LOS) affect them? This chapter discusses the factors that influence the POS, namely the effectiveness of Access and Voice, for as Berkhout (2013, p. 235) puts it: by “specializing in a single type of exchange relationship, we will never fully explain why interest organizations do what they do”. The LOS will be discussed in greater detail in chapter 5. It should be noted that while it will be explained what determines an IG to choose Access and Voice over the other, it will not for litigation. Litigation is a tactic that can be fully complementary to other political strategies (Bouwen and McCown, 2007). Exceptions exist but on a negligible level.
Various researchers have widely differing claims about how environmental groups attempt to influence environmental policy. On the one side there are those who see the movement as challenging the prevailing social paradigm through contestation and violence, to those who admit the movement's reliance on conventional styles of political persuasion, and finally, those who take complementary action in Court. In short, interest groups have power by means of three categories of strategies: The Access, Voice and Litigation strategies. First off, the research agrees on the meaning of access: a strategy of directly trying to influence (European) politics, where an organization is in direct contact with the policy makers and institutions. ‘Access strategies’ therefore include, e.g. offering expertise to policy drafters, publishing position papers, joining negotiations or otherwise form alliances (Benett, 1999; Eising, 2004; Bouwen and McCown, 2007; Dür and Mateo, 2012; Kluver, 2009). Secondly, Voice entails the opposite and consists of all actions trying to influence the public sphere by trying to
reach as many people as possible. This can include electronic media platforms, public debates, demonstrations and press conferences and press releases. By changing the public opinion to be more aligned with the interest group’s goals, it can indirectly change new policies or at least set the agenda and shape people’s preference (Beyers 2004, 2008). The duality between Access and Voice is well documented, and can be found under a number of other, similar terms. For one, Access and Voice coincide with the three dimensions of political power as described by Steven Lukes (1974): decision making power (Access), agenda setting power (Voice) and preference setting power (Voice).
‘Inside/outside’ lobbying is frequently used (Long and Lörinczi, 2009; Bouwen, 2004; Beyers, 2004, Junk, 2016), ‘grassroot/grasstop lobbying’ (Mahoney, 2008), ‘information and protest politics’ (Beyers, 2004), or ‘administrative’, ‘emotional’, ‘pressure’ and ‘mobilization strategies’
(Binderkrantz, 2008; Binderkrantz and Krøyer, 2012). The third option for IG’s to take is Litigation strategies. While it might be considered a ‘last resort’ by some, the Court room can be familiar ground for other interest groups. Some researchers point out the likelihood for litigation (e.g. Conant, 2002) and one paper juxtaposes Access and Litigation and describes some of the determinants to choose one over the other (Bouwen and McCown, 2007).
The propensity to use one strategy depends on a number of determinants discussed in this chapter. These are broadly divided into institutional and group-issue specific determinants. It will be shown that Voice will be used more often than Access by NGO’s. Interest groups in general can also use courts to forcefully change the law. The Court of Justice has been accredited to the
‘constitutionalizing of the treaties’, and ever since the Court has ruled that the Treaties do not only imposes obligations, but also confers rights upon individuals, interest groups have extensively pursued case laws (McCown, 2009). Litigation, as the main subject of this research, will be discussed in chapter five.
2.2 Receptivity determinants
A public actor that is inclusive and actively trying to involve interest groups of all sorts (European Commission, 2001) does not necessarily listen to its demands. A government must be receptive to the proposed ideas and be willing to draft legislation accordingly (Wilson, 2002). The government’s receptiveness depends on a few different characteristics, that will be broken down into two sub-categories. From the legislator’s perspective the institutional receptiveness will be described, and afterwards the receptivity derived from ENGOs’ own group and issue characteristics. We will therefore depart from an institutionally based Political Opportunity Structure to a POS from the interest group’s perspective. In the literature, three main strands can be distinguished that determines an organization’s propensity to use Access, or with the lack thereof, Voice. The categorized
determinants are institutional characteristics (Bouwen, 2004; Beyers, 2004; Hallstrom, 2004;
Dür and Mateo, 2012; Dür and Mateo, 2013; Greer et al., 2008; Junk, 2016), and finally the issue characteristics (Binderkrantz and Krøyer, 2012; Beyers, 2008; Mahoney, 2008; Dür and Mateo, 2013).
2.2.1 Institutional receptivity
Influencing the polity’s institutions is in essence the ultimate goal of inside and outside lobbying. In the case of Europe, the resulting work of the European Commission, the European Parliament and both Councils together is what determines the shape of new legislation and so they are the prime targets of any interest group that tries to influence politics on a supranational or intergovernmental level. Seeking institutional access is therefore a prime goal for the majority of interest groups, as it allows them to be close to the drafting tables and be up to date about current developments. In the diversity and complexity of European multi-level political processes, there is an exchange between (European) institutes and interest groups, rather than a one-sided demand for access into decision making (Bouwen, 2002; Bouwen, 2004; Greenwood, 2017; Betsill and Corell, 2001; Hallstrom, 2004). The interest group’s ability to deliver such access goods is what determines their level of access to the institution, to a large extent.
Bouwen (2002) describes access goods as ‘provided by private actors to the EU institutions in order to gain access.’ Each kind of access good can contain specific types of information that is paramount for the EU policy drafters. The criticality of an access goods for proper legislation, and the IG’s ability to deliver it, directly determines the level of access that a private interest representative is granted to the institution. Access goods are desired in each step of the legislative process, yet to a varying degree per institution and in different forms. An organization can offer input and output legitimacy, that is, legitimacy from interest group involvement and legitimacy from successful new legislation. The European Institutions themselves have been accused of being too technocratic, and the European Parliament elections have a troubling low turn-out of 40% to 50% average annually. To make up for this alleged permanent democratic deficit, the European institutions rely on civil interest groups to create a society in which civil participation is encouraged (Bouwen, 2002; Greenwood, 2017; Hix ,1999; Eising, 2004). Thus, access goods often translate themselves into expert knowledge and information about current encompassing interests, both national and European. The 2000
Commission Discussion Paper states that the commission and NGO’s have indeed argued that ‘NGO’s can make a contribution to fostering a more participatory democracy ‘both within the EU and beyond’ (European Commission, 2000, p. 4). The inclusion of this kind of legitimacy is therefore priced especially with the Commission, whose members are not elected but appointed.
Whereas business associations may be well-equipped to provide this information, ENGO’s find more difficulty gaining access to this initial point of legislation. Public actors can, normally speaking, give in to welfare decreasing demands of special interest groups to the point that it does not affect their constituency. The lack of transparency of the EC may therefore strengthen the access of
concentrated interests to the detriment of diffuse’s (Dür, 2008a). There seems to be a bias amongst EU officials towards ENGO’s, as highlighted in the following extract from an interview with an
anonymous Commission DG Environment official, held in Brussels in March of 2000 by researcher L. K. Hallstrom (2007, p. 179) concerning the need of expert knowledge:
The environmental groups are very weak. Now, the biggest European environmental
organization, the European Environmental Bureau, which puts [sic] 150 national associations, has a permanent staff of three persons. This means that for me, as an official, if I want to have, say, the top official on waste from genetically modified organisms, laboratories or plants and so on, and I call the Chemical Association, within one minute I have their specialist on the phone, and within one day, let’s say three days, I have the top specialist in the world, coming either to me, or if I want I can pay him a visit and get the top information, most precise, and so on. If I address the Environmental Bureau, and they don’t have a specialist of that nature …. Of course, on that they are generalist, so they are not really a means of information for me, and that means that this side of information is practically under-developed.
This interview suggests that whereas the Commission states that interest representation should equally consist of economic, social and civic interests, officials have too little time to spend time listening to groups that cannot effectively provide the information that they need.
Both the European Parliament and Council are targets for lobbying as well, considering that legislation can only be passed when both are in agreement. They require expertise too, but to lesser degree. The detailed plan has already been drawn by the Commission and the further a proposal is in the process the more difficult amendments are. Only to Parliaments working committees that initially receive the proposals expert knowledge is indispensable, but it soon becomes clear that the prime information that EU Members of Parliament and Council Members need is European and national interests. Unlike the Commission, the Council and Parliament has elected officials, which means that they are directly accountable to their constituency of their home country (Hayes-Renshaw, 2009). The two institutions are therefore most susceptible to Voice tactics rather than Access.
2.2.3 Interest group and issue determinants
Practically, the determinants are two sides of one coin. Whereas the section of institutional determinants analyses to what extent an institution allows Access, this paragraph will discuss the determinants from the side of the interest groups and the issues they engage in. The types of issues that NGOs defend are in direct correlation to the type of group which it entails, for diffuse interests are funded by diffuse constituencies. This makes an organization dependent on the public. NGOs are
(Beyers 2004, 2008; Mahoney 2008; Greer et al., 2008; Binderkrantz and Krøyer 2012), even if access to institutions is found (Dür and De Bièvre, 2007). NGOs represent diffuse interests, and this seems to be the root cause for their lack of access. This means that the interests are shared by a large group of people, concerning not one specific policy type but rather broad interests such as social development, human rights protection, health care standards and in the case of this research, environmental
protection. It is through the diffuse nature that ENGOs have difficulty to maintain a powerful presence in the institutions. Due to NGO’s nature, it is rather ‘cursed’ to stay on broad topics. While an NGO can of course argue for concentrated interests, as does the European Federation Transport and Environment and the European Environmental Bureau, in doing so it risks losing considerable funds as contact with its constituency wanes since donors donate for diffuse interests and need to be regularly updated on their NGO’s action (Mahoney, 2008). Otherwise they may feel the money is better spent elsewhere to a more ‘successful’ actor. NGO constituency often donate to diffuse interests and not specifically for an exact position on, for example, trade or aviation. In this sense, the
competitiveness of NGOs in their search for members undermines their own political game. Some NGOs or NGO federations are partially funded by the EU as part of the EU’s civil society expansion quest, but the more ‘official’ an NGO is, the more officially it has to behave. They in turn risk losing constituency support as they then lack success with access or due to a shortcoming in market
information and may soon be seen as ‘them’ instead of ‘us’ (Dür and de Bièvre, 2007). Given the technocratic nature of the Commission, sceptics see diffuse interests are largely powerless. More optimistic research shows that diffuse interest can indirectly pressure policy makers by posing a threat that can mobilize disaffected voters and policy makers will then listen primarily to concentrated interests that are largely in line with the diffuse interest groups (Hall and Daerdorff, 2006). In other words, organizations that fail to influence the Commission can turn to the EP and Council by means of addressing their constituencies (Beyers 2004, Bouwen 2004, Mahoney 2007). However, this would be categorised as a Voice rather than Access strategy, because the policy draft committees have not been addressed.
Diffuse interests’ political opportunities are further determined by the nature of the issue that a group defends, which can be broken down into three categories: the issue’s salience, its complexity and the envisioned degree of change. Each of these plays an important part concerning ENGO strategies and influence as it influences the civil group’s connection with either the institution, their constituency or both. Even if diffuse interests manage to get organized, the underlying factors that make it difficult for these interests to influence political outcomes should persist. Organized NGO’s are required to go back to their constituency for material resources and since ENGOs represent diffuse interests, the only policy actions they are able to publicize are diffuse. Given the public´s usually short attention span, NGO’s will have to rely on flash campaigns to mobilize public opinion and defend extreme positions that are difficult to achieve in order to gain attention. This adds an issue’s salience,
complexity and level of conflict to the table, as topics that NGOs are publicly debating need to be relatively easy to understand. (Mahoney, 2007, 2008a).
They will, however, publicly advocate for extreme measures such as complete abolishment or complete implementation of certain legislation. An NGO’s relation with the public, therefore, is crucial as to why broad topics such as ‘closing coal mines!’ or ‘protecting the natural habitat!’ are easier to defend in the public debate than technical airlines emissions regulations. Even in the case when an NGO acquires more resources, it will spend increasingly on outside lobbying tactics such as media and mobilization tactics for two reasons. Firstly, cause groups and those in competition to find benefactors will use these extra resources to enhance the project they have been working on, including media coverage and membership attainment. Secondly, considering the institutional requirement of expert knowledge, legitimacy and encompassing interest information, the diffuse arguments of ENGOs is of little value to policy makers who try to satisfy the preferences of voters in the middle of the political spectrum (Dür and De Bièvre, 2007, Dür, 2008a). This does not mean, however, that environmental groups do not engage in Access whatsoever, though it is seen as their structural weakness.
There are several ways an NGO can overcome collective action problems. Collective action can be encouraged by the benefits a membership brings. Group leaders can provide material benefits such as discounts or low insurance rates, or solidary benefits that come naturally by joining a group of people with similar concerns. Some associations exist because law requires people from the same profession to band together. Finally, according to the disturbance theory people will have a natural incentive to mobilize for economic, environmental or social causes when particular events happen (Olsen, 1971). Especially in this time of information ideas can spread rapidly
2.3 Litigation strategy
As seen with the European Commission, an official’s responsiveness to demands from society can vary and it does not consistently accommodate the preferences of the most active and mobilized interest groups (Bouwen, 2004a, 2004b). In democratic countries, government officials are concerned with their re-election and are therefore focussed on short-term, and visible long-term economic and social welfare consequences of policy choices (Beyers, 2004; 2008). One author (Cox, 2012, p. 98) calls this the ‘failure of democracy’, as the short-term thinking would impair any government to take the drastic actions necessary to contain long lasting issues like climate change. Special interests have structural power through economic leverage and civil society can mobilize people against the government. In the end, an elected government has to balance the preferences of their core
constituency with these special interests and broader public. Different constituencies have to be taken into account as well. Some policies that an environmental left party would vote in favour for, may not be as readily accepted by a conservative right-wing party, and so, even within a government the access
In contrast to elected officials, judges are to a far lesser degree accountable to specific constituencies. While a regular legislation proposal can be easily overturned by either an executive veto or legislative rejection, this is a much harder endeavour with constitutional or treaty revisions (Conant, 2002; Cox, 2012). This is where the power of litigation lies. For this argument the distinction will be made, as described by Conant (2002), between diffuse and concentrated interest, and also weak and intense costs or benefits. Diffuse interests again entail a wide-spread set of actors, whereas
concentrated interests consist of only a relatively small set of actors. Weak and intense consequences represent whether the diffuse or concentrated actors affected will pay relatively low costs or high costs. As example, a diffuse group of weak interests will find no incentives to participate either in politics or the court room. A diffuse interest group that has intense benefits faces a challenge to unite their interest and create the logistics and resources to take on the concentrated interest. It is in this setting that the free-rider problem occurs the most because organizing is difficult, and some people may opt to sit out and let others do the work. Concentrated interests on the other hand will have no problems to bundle their occasionally significant resources, as only one or a few actors are involved. Following this argument, concentrated interests have the advantage in using the Court, while ENGOs, as diffuse interests, have a structural lower Litigation Opportunity.
Going to Court, however, has implications for the relationship with the defendant. Regardless, the ultimate example for an ENGO utilizing the law may well be ClientEarth from the UK. When asked why they choose this unconventional route of focussing only on litigation, rather than a combination, ClientEarth’s environmental democracy lawyer Sebastian Bechtel replied:
I think the way we approach it is that we see it as a full circle. If you look how policies are made, you can influence it at all stages. You can influence it before a law is made, which would be more conventional lobbying, and then in a lot of cases, where we see [sic] is lacking the enforcement of laws afterwards. That is when we work with litigation. And of course, we want to try with strategic litigation, to change laws and restart the circle. It’s not all we do. We do a lot of advocacy, but we focus on the little avenues because we’ve identified that as what other NGO’s are not doing but has a lot of potential. A lot of environmental laws have been around for quite a long time, we have a very developed environmental law system, that is applicable for the EU, so there’s a lot of laws and if we would enforce and implement all of them exactly, the environment would already look a lot better.” (Interview, 14 August 2019)
From this interview it is apparent that ClientEarth sees litigation strategies mainly as a tool to enforce laws that are already set. There is a disillusion towards the Political Opportunity. The same is confirmed by Marjan Minnesma, director of the NGO Urgenda that won a landmark lawsuit against the Dutch government in 2016, who states that:
