The Social Construction of the Dutch Air Quality Clash_vDEF_Opmaak 1 16-02-16 12:55 Pagina 1 Tobias Arnoldussen T o b i a s A r n o l d The Social Construction of u s s e n the Dutch Air Quality Clash T How Road Expansions Bit the Dust Against Particulate Matter h e S From a small policy issue in the 1990 s, air quality suddenly became a hotly debated o c public problem in the Netherlands from 2004 onwards. During the ensuing political i a l and legal clash over air quality in the years 2004 - 2010 , Dutch infrastructure C development and road expansion grinded to a halt on account of exceedance of o n the legal standards for air pollution. Tobias Arnoldussen analyses this sudden s t emergence of air pollution on the Dutch political agenda by reviewing court cases, r u policy documents, European Environmental Law and the alarming research data c t i on a new type of air pollution, Particulate Matter. o n o f Using social constructivism and discourse analysis as methods of socio-legal t inquiry, Arnoldussen relates the emergence of the clash to innovative legal h e strategies of the environmental movement, the concerns of epidemiologists, D ambitious European policy makers and an activist judiciary wielding its substantial u t c political influence. On the level of law and policy he considers the clash to be the h result of the increased Europeanisation of Environmental Law, the failed ecological A i r modernisation of mobility and the growing role of a precautionary approach in Q European and Dutch law and policy. u a l i t y C l a s h 16.007 - 16.02.2016 - Rug 27,8 mm The Social Construction of the Dutch Air Quality Clash De handelseditie van dit proefschrift is verschenen bij Boom juridisch onder ISBN 978-94-6236-639-8 The Social Construction of the Dutch Air Quality Clash How Road Expansions Bit the Dust Against Particulate Matter De sociale constructie van de fijnstofstrijd in Nederland Hoe wegverbreding in het stof beet vanwege PM10 Proefschrift ter verkrijging van de graad van doctor aan de Erasmus Universiteit Rotterdam op gezag van de Rector magnificus Prof. dr. H.A.P. Pols en volgens besluit van het College voor Promoties. De openbare verdediging zal plaatsvinden op vrijdag 4 maart 2016 om 11:30 uur door Niels Tobias Arnoldussen geboren te Amsterdam Promotiecommissie Promotor Prof. mr. dr. N.J.H. Huls Overige leden: Prof. dr. E. Hey Prof. dr. R van Swaaningen Dr. A. Burgess Copromotor: Dr. R. Pieterman ACKNOWLEDGEMENTS This research would not have been accomplished without the generous help of a great number of people. I like to extend my gratitude first of all to my promotor Nick Huls and my copromotor Roel Pieterman for their incessant support during every stage of this research process. Their valuable suggestions and critical commentary did not only improve the book, but edified the author as well. I would like to thank the mem- bers of the inner committee, Ellen Hey, René van Swaaningen and Adam Burgess for their thorough assessment of this study, and my colleagues at the EUR and the OMV for the stimulating discussions we have had about it. In particular I would like to thank Willem Jan Kortleven, Mireille Hildebrandt, Elaine Mak, Harm Kloosterhuis, Sanne Taekema, Wybren van den Burg and Munish Ramlal for their insightful comments. Good friends and colleagues took their time to read parts of this manuscript and offer their suggestions for improvement. I am very grateful for their thoughtful remarks and suggestions. I wish to mention Jitte Waagen, Rob Schwitters and Jaap Hanekamp, thank you very much for your patience and for giving me the opportunity to discuss this book with you. I would like to especially mention and thank my mother Elly Lei- jenaar and Laura Holswilder for their help, not only did they read parts of the book, but you also assisted me in my attempts to get to grips with all the intricate possibil- ities of Microsoft Office. The support staff at the Erasmus University has invested a lot of time in ordering the references. I wish to express my sincere gratitude for the work of Fausia Sual on the manuscript and the assistance of Mariëlle Duijndam. My sincere thanks as well to Donna Devine for her editing work on the book. In addition I thank my publisher Joris Bekkers of Boom legal publishing for the expedient publication of this dissertation and of course my respondents, who made this study possible. I am grateful to many of my current colleagues at the UvA for taking the time to dis- cuss whatever topic comes to mind. My colleagues at the Paul Scholten Center, Roland Pierik, Marc de Wilde, Bas Schotel and Nienke Doornbos among others have broadened my horizons and the members of the teaching team at PPLE College have shared with me insights from their own disciplines. I have learned a lot about US law The Social Construction of the Dutch Air Quality Clash from Alison Fischer and Robert Weaver, about psychology from Noah Millman, about politics from Peyman Jafari. Finally, I would like to thank my family and a group of very good friends for standing by myside.MymotherElly,myfatherPaulandmybrotherJelgerhavekeptsupportingme, especially when my spirits were low at times. René, Ed, Roel, Ruben, Snaus, Cleef, Thijs and all those others I could not mention, I wish to thank you too. It is impossible to con- duct research without spending time with goods friends over a beer once in a while. TABLE OF CONTENTS Acknowledgements 5 1 The air quality clash: introduction and methodology 15 1.1 The air quality clash, delineation of the period under concern 16 1.2 Research question and sub questions 17 1.3 Research methods and selection of research material 23 1.4 A social constructivist perspective 26 1.4.1 Concepts taken from actor centred social constructivism 27 1.4.2 Concepts taken from the discourse analytic approach 29 1.5 Ideal types of ecological modernisation and the legality of precaution 32 1.5.1 Ecological modernisation 33 1.5.2 Ideal typical elements of ecological modernisation 34 1.5.3 Ideal types of ecological modernisation discourse and ‘limits to growth’ 38 1.5.4 Ecological modernisation: its critics and its possibilities 43 1.5.5 The legality of precaution and the precautionary principle 44 1.5.6 Ideal types of the legality of risk and compensation and the legality of precaution 45 1.6 What this book is about 51 2 Public health claims about particulate matter in the early 1990s 53 2.1 Particulate air pollution 54 2.1.1 What kind of pollutant is Particulate Matter? 54 2.1.2 Different categories of PM 55 2.2 The discovery of PM10 as a health threat 56 2.2.1 Two significant studies: Harvard Six Cities and ACS 57 2.3 Prospective epidemiology, possibilities and limitations 58 2.3.1 Epidemiology and toxicology 58 2.3.2 Possibilities and limitations of epidemiological studies 61 2.3.3 Epidemiology and its critics 64 2.4 Remaining uncertainties in the Harvard Six Cities and the ACS studies 67 The Social Construction of the Dutch Air Quality Clash 2.4.1 Critical objections to the findings in the ACS and Harvard Six Cities studies 67 2.4.2 Assessing the claims of early air quality research 70 2.4.3 Air pollution as an indicator for low socio-economic status 71 2.5 Dutch epidemiological research and claims making by health agencies 72 2.5.1 Dutch epidemiological research 72 2.5.2 Claims made by the Dutch Municipal Health Agency 73 2.6 Concluding remarks 75 2.6.1 Experts as claims makers 75 2.6.2 Epidemiology as a precautionary science 76 2.6.3 Conflicts over air quality as ‘risk society conflicts’ 77 3 Dutch ecological modernisation and environmental regulation: 1972 – 2002 79 3.1 The early days of environmental policy in the Netherlands 80 3.1.1 The policy process in the Netherlands 81 3.1.2 The institution of the Ministry of VOMIL 83 3.1.3 A programmatic and long-term approach to environmental policy 85 3.1.4 Setting standards and providing permits 86 3.1.5 The entwinement of spatial planning and environmental policy 89 3.1.6 The discrepancy between idealistic rhetoric and pragmatic politics 90 3.2 Embracing ecological modernisation 91 3.2.1 The role of modern managers in the new VROM Ministry 92 3.2.2 Accommodation and responsibilisation revisited 94 3.2.3 Expansion of the integrated long-term perspective 96 3.2.4 The possibility of a ‘positive sum game’ 97 3.2.5 Dutch ecological modernisation: the coming of age 99 3.2.6 Assessing the NMP; the turn to strong ecological modernisation 102 3.3 The aftermath of the NMP: accommodation, and conflict in the 1990s 104 3.3.1 Environmental cooperation with the industry 104 3.3.2 Increased participation of the Environmental Movement 106 3.3.3 Ecological modernisation of the transport sector 107 3.3.4 The failed ecological modernisation of the transport sector (1989 – 2001) 109 3.3.5 Legal conflicts over the megaprojects 112 3.3.6 The nature of environmental conflict and the position of the VROM Ministry 115 3.4 Concluding remarks 115 3.4.1 Continuity and discontinuity in Dutch environmental policy 115 3.4.2 Environmental protection as necessary for business: The powerful storyline of win-win scenarios 117 Table of Contents 3.4.3 The Achilles heel of ecological modernisation; transport and infrastructure 119 3.4.4 The merchant and the reverend 121 3.4.5 Dutch environmental policy and the legality of precaution 122 4 The social construction of European air quality legislation: 1983 – 1999 125 4.1 Update of the EU air quality policy in the 1990s 126 4.1.1 Proposal for the Framework Directive COM(94)104 129 4.1.2 Proposal for the Daughter Directive COM(97)500