Schiphol flight cap gets the green light from the Dutch Court of Appeal
The Dutch Court of Appeal has given the green light to the Dutch Government’s proposal to reduce flight numbers at Schiphol Airport Amsterdam. It’s an important win for the environment and the local population. Our quickfire questions and answers bring you up to speed.
What has happened?
On Friday (7 July), the Dutch Court of Appeal ruled that the Dutch Government can proceed with its plan to reduce flight numbers at Schiphol next year from 500,000 to 460,000.
Why does the Government want a cap on flights?
CO2 emissions, non-CO2 emissions, nitrogen, particulate matter and noise – these are just some of the impacts of airports, affecting not just the environment but also human health. The reality is that with current technology there is only one way to address all of these problems: reduce the number of flights.
The Dutch Government plans to reduce flights at Schiphol to 440,000 from Winter 2024 and proposed an interim reduction to 460,000 next year (on an experimental basis).
So how did it end up in court?
There’s a long history to the problems at Schiphol. For a number of years the airport and industry has been treating 500,000 as the de facto capacity limit notwithstanding that such limit results in illegal levels of noise pollution (not to mention the climate impacts).
A number of industry players – including airlines such as KLM, EasyJet, and British Airways – weren’t happy with the Dutch Government’s proposal to reduce flight numbers and took it to court to challenge the interim reduction.
“The inescapable reality is this: with proper decarbonisation still decades away, we have to reduce rather than increase flying.”
What happened next?
Initially, the District Court found in favour of the airlines, saying that the Government hadn’t followed the procedural requirements under what is known as the ‘balanced approach’ under the EU Noise Regulation.
But the Court of Appeal has overturned that decision, finding that the ‘balanced approach’ procedure doesn’t apply to these specific circumstances.
What did the Court of Appeal say?
The key takeaways from the judgment are:
The Court ruled that the Government’s proposal to reduce flights does not conflict with national and EU law.
The Government didn’t need to follow the EU Noise Regulation procedures for a short-term, clearly-defined, experimental measure (the Dutch Government has always said it will follow that process for the planned long-term cap).
The existing situation at Schiphol is that the State has been tolerating breaches of statutory noise limits, and its intention to now enforce those noise limits “cannot be regarded as an operating restriction”.
This status quo situation “was and is in fact illegal”, being contrary to various EU environmental regulations. The Court considered it "not plausible” that the airlines who challenged the cap (or anyone else) has rights under the EU Noise Regulation to maintain this illegal situation.
“We believe that states have the ability to take various measures within international law and EU law to regulate aviation emissions and reduce the climate impact of aviation.”
So is that the end of it?
The airlines might seek leave to appeal to the Supreme Court. But there’s a reputational impact in continuing legal action which is anti-environment and anti-human health – especially for airlines that are keen to promote their ‘sustainability’ to their customers.
Why does this matter?
The aviation industry has long argued against any restrictions on its growth. But the inescapable reality is this: with proper decarbonisation still decades away, we have to reduce rather than increase flying.
We believe that states have the ability to take various measures within international law and EU law to regulate aviation emissions and reduce the climate impact of aviation. The Court’s ruling shows that states have greater scope to act than the industry wants us to believe.
This is important because to meet their Paris Agreement obligations, states should be taking active steps to address aviation emissions. And they can.
What next?
Whilst the facts of the Schiphol case won’t be exactly replicated elsewhere, there should be three important outcomes from last week’s Court ruling:
Governments across the EU should be emboldened to take proper action on aviation emissions and reduce the environmental and health impacts of flying. They have the power to do so under international and EU law and Schiphol provides the blueprint for bringing in capacity reductions as a first step.
Airport expansion plans should be shelved. Expanding the sector is not only nonsensical from an environmental point of view, but it presents a serious economic risk. The direction of travel for regulation and the aviation sector is clear – and investments in new airport capacity will only leave investors with expensive stranded assets.
Airlines should reconsider their priorities. For too long the industry has focussed on cost and profit and assumed a narrative of continuous expansion. Rather than invest time and money taking legal action against measures that are designed to protect the environment and human health, airlines should focus on how the industry can decarbonise and meet the Paris Agreement goals.
