Capping airports: An analysis of the Schiphol Airport campaign
Published: September 19th 2024
The Dutch government has supported the growth of this hub system for decades. While doing this, it has broken some of its own regulations on protecting citizens and nature from excessive noise and nitrogen emissions. In response, a number of environmental organisations and local residents associations got organised and started using their rights to hold the government accountable.
While a variety of strategies, from mass protests to campaigns, have been key for building political pressure, litigation played an important role to force the airport’s flight movements to be capped. And the struggle is not over yet. The following presents a non-exhaustive chronology of law, crimes and resistance and a few attempts to analyse what others can learn from it.
Chronology of Resistance
That same decade, Mobilisation for the Environment (MOB), a small Dutch environmental NGO, is founded to start legal actions in cases where a government fails to adhere to the law on environmental matters.
Around the same time, some residents start to change strategy to officially demand that the required noise level limits are enforced every year; this has never been granted.
Since 2015, activities at Schiphol airport have officially exceeded legal noise limits and regulators have chosen not to enforce the rules, furthering the legal issue created by the airport. In the meantime, protests against aviation growth gained more traction and were organised jointly by environmental NGO’s, local airport residents organisations and political parties.
Nitrogen Case: The First Reason for a Cap on Schiphol Flights
In 2019, the NGO Mobilisation for the Environment (MOB) formally requested enforcement on excessive nitrogen emissions from Schiphol, since these were illegally happening without a Nature Permit, in the middle of a nitrogen crisis. It originates from animal manure and nitrogen oxides emitted by engines in motor vehicles, aeroplanes and industry, leading to undesirable effects on the quality of soil, water, air, and nature. The minister handling nitrogen issues, in 2020, had to admit that exempting Schiphol had no sound legal basis and indeed a Nature Permit was needed.
Later she had to admit this was true for the other airports as well and in September 2023, she granted a Nature Permit for Schiphol for 500.000 flights, meaning room for growth, despite advice from her own staff not to do so, because it would be difficult to defend in court.
This sparked controversy as the minister has not been as lenient with many farmers waiting to get their nitrogen emissions legalised through a Nature Permit. In 2023, MOB announced it would take legal action and submitted a notice of appeal to the court. The minister is now working on extra motivation to convince the court that the Nature Permit was a valid decision.
Government Plans to Reduce Noise by Capping Air Traffic
In several steps up to September 2024, the plan for a cap has been changed to a maximum of 475.000 – 485.000 yearly flights, now starting in late 2025. The argument used is that other proposed measures to reduce noise are now considered more effective than previously assumed, leaving less need for capacity reductions. For noise-related limitations in flight numbers, the European commission has a procedure called the Balanced Approach, basically requiring all main stakeholders to be involved in a lengthy process and it to be only ‘a matter of last resort’ for flight reductions.
20 parties, mostly airlines, legally challenged the Dutch government’s plans, stating that imposing a significant limitation of flight numbers is not proportional to the problem and the Balanced Approach procedure had not been followed. They claimed that this solution had been invented without sufficiently exploring alternative measures to reduce noise problems and without consulting stakeholders. A lower court ruled in favour of the airlines. The government, however, appealed against this ruling stating that the current 500.000 was already an illegal situation and bringing it back to 452.500 was merely a step towards making it legal again. The appeal court agreed and overturned the lower court’s decision in March 2024. This was such a complicated and sensitive case that the 29 lawyers involved in the case set a new record in the Guiness Book of Records
Around this legal case, political pressure was applied. The United States government warned of retribution to KLM’s opportunities if U.S. airlines were to get less time slots at Schiphol. It warned that this unilateral decision by the Dutch government contravened the Open Skies Treaty between the U.S. and the EU. The European Commission warned that applying the balanced approach procedure – and doing it right – was indeed a condition in this case. This warning and the powerplay from the U.S. led to the minister aborting the plans. The European Commission’s warning was later confirmed by the High Court. A new government plan to reduce flight movements to between 460.000-470.000 has now been presented to the European Commission and must follow the lengthy ‘Balanced Approach’ procedure. This new plan followed frequent talks between the Dutch Ministry and the European Commission, where the latter insisted that specific noise abatement measures had to be used first and reductions in flight numbers could only be applied as a matter of last resort. The measures were found to be out of proportion to its objective to reduce noise. Many civil society groups, including Stay Grounded, have voiced their concerns over these watered-down plans.
The Balanced approach procedure is a mandatory methodology that member states have to use when they want to take measures to reduce noise at an airport.
This EU procedure is described in the EU Regulation 598/2014 and it protects airlines and airports from restrictions including strict conditions for any flight limits. It has been designed together with the aviation industry in order to make operational restrictions as difficult as legally possible.
It states that “Member States shall ensure that, when noise-related action is taken, the following combination of available measures is considered, with a view to determining the most cost-effective measure or combination of measures”. It is necessary to go through the 4 pillars of the Balanced approach procedure, only allowing the last if all others have been considered:
- Reduction of aircraft noise at source (like less noisy aircraft)
- Land use planning and management (like isolating houses or relocating people)
- Noise abatement operational procedures (like different routes for landing)
- Operating restrictions to flights
This regulation entered into force in 2016 and makes sure all stakeholders, like airlines, can file a protest. It includes assessing the ‘proportionality’ of a measure in reaching its noise objective. This regulation is not about anything other than noise objectives, so benefits to the climate, nature or other health objectives will not be included in assessing the ‘proportionality’ of the measure.
When announcing a plan to limit operating restrictions, such as a cap on airport traffic numbers, it must be done so in writing to the European Commission, as has been done in this notification document.
The Ruling on Noise
In a March 2024 ruling, the Hague court ruled on a case filed by a small organisation called Right to Protection against Flight Nuisance (RBV). The Court had to judge whether the State had acted unlawfully by exposing a disproportionate number of people to serious annoyance and sleep disturbance caused by air traffic to and from Schiphol. The legal question is whether the conduct of the State is in breach of Article 8 of the European Convention on Human Rights (ECHR), which protects the right to privacy, including the home. The Hague district court ruled that the State indeed acted unlawfully, firstly because the airport operated for almost a decade and a half under an aviation regime which is basically illegal. Secondly, this previous aviation regime was developed without a fair balance being struck between the interests of the aviation sector and the interests of the people. This led the court to conclude that the State did not offer adequate legal protection to its citizens, as required under Article 13 of the ECHR.
The district court ordered the State, within twelve calendar months of being served this judgement:
- to enforce the applicable laws and regulations, and
- to create a form of practical and effective legal protection that is accessible to all those who are seriously inconvenienced and have their sleep-disturbed – including those who live outside the currently established noise contours – in which the interests of the individual are also taken into account in a sufficiently individualised and motivated manner.
Earlier research commissioned by the Dutch transport ministry showed that remaining within legal noise limits would effectively mean a maximum number of flights of between 400.000 and 420.000. Part of the ruling was that the Balanced Approach would not be necessary, as the EU Regulation respects the national laws and established policies already in force by 2016. The Air Traffic Ruling 2008 (LVB 2008) was already in force by then. A decision to enforce the LVB 2008 therefore would not constitute a restriction on operations that requires the use of the Balanced Approach. However, as said, in July 2024, the High Court ruled that the European Regulation containing the Balanced Approach was required in this case. Since this leads to conflicting rulings, the High Court has now relayed further proceedings to the Hague Court.
Political context in The Netherlands
Until 2023, political parties in favour of bringing down airport capacity have always formed a minority share of the parliament. For the last two decades, centre right parties have dominated the government and catered well for corporate interests, like those of KLM, by continually increasing airport capacity.
The above-mentioned cases on noise and nitrogen had been in the making for years and experts knew the current situation would probably not hold up in court. An application for a Nature Permit for a new airport – Lelystad – had just been rejected by parliament for being full of unrealistic assumptions on nuisance and emissions. The picture of a government willing to take illegal steps for aviation sector growth was now becoming clear to see. This was especially painful and unfair when local residents and farmers would have to tolerate excessive noise or shut down their farms for emitting too much nitrogen. The green party and the new pro-farmers party were often at odds, but from 2023 united to lead the way, together with protest groups and local governments, in rejecting a permit for a new Lelystad airport.
Support for growing aviation has been further eroded by adding more scandals to the pile. This included a mass claim PFAS in a responsible manner, following exposed PFAS contamination from an airport incident which was caused in part by KLM’s failing to comply with safety rules. Furthermore, the cheap tariffs for airlines using Schiphol airport are directly related to a scandal over poor working conditions for airport workers. On top of that, the carcinogenic substances of very high concern (SVHC) became an actual problem. They are still calculated by models instead of measured on the spot, possibly hiding worrying levels of exposure for both airport workers and residents.
The aviation-related net benefits for society are a matter of constant political consideration. Amsterdam attracts the headquarters of big companies, partly due to its well connected airport, but it also has a problem with overtourism. Just like Barcelona or Venice, it proves almost impossible to keep excessive numbers of tourists out of the city centre. There is a clear link to the excessive growth of flights. Amsterdam municipality – a shareholder of Schiphol airport – now supports a further decline in air traffic numbers to 400.000. The fact that bringing down airport capacity was the only way to get out of this legal mess, convinced more political parties to change course. Even centre-right parties are now supportive of bringing down maximum airport capacity.
It helped that Ruud Sondag, the former airport CEO, was uniquely determined to do more for residents and the climate. He presented an ambitious, but ultimately rejected, plan to ban night flights and commissioned research into how Schiphol airport could keep its CO2 emissions within the limits of the Paris Agreement.
Also the pandemic played a role in the political context: Not only did it show that business aviation now competes with online meetings, it also exposed the lifelong history of public money injections needed to keep KLM alive. This is well documented in a 2022 bestseller book that fuelled outrage about KLM. On top of that, KLM was arrogant enough to just not meet the conditions they agreed to as part of the large public financial injection they received during the pandemic. This created tense relations between KLM and the minister of transport.
Open Information
Actors ecosystem
An important factor for successful action to bring the aviation industry down to earth has been the diverse ecosystem of civil society and how they have been cooperating. Local residents’ groups have cooperated with environmental NGOs from the beginning, pooling activism, personal stories and expertise. Many demonstrations, calculations and court cases have been done in cooperation.
Successful resident’s groups have not accepted money from the (local) government for their activities – even when offered – and remained free to speak and act as they felt necessary.
Some experts have become full-time activists campaigning against current aviation policy, like the founders of SchipolWatch. This small NGO collects data, publishes daily news, connects residents’ groups, lobbies politicians and uses donations from its many readers to pay lawyers for the final work in court cases. Organisations around airports are in frequent contact and discuss strategies with others who share the same goals.
Lessons Learned – What Worked in the Struggle to Cap Schiphol?
- All problems arising from the excessive flights at Schiphol were countered, building pressure from every angle: Nitrogen, Noise, PFAS, CO2 and non-CO2 aviation climate effects, Workers’ rights, Substances of Very High Concern (SVHC), problems with tourism. When having less capacities, of course it makes sense to focus, but it can also be good to have different actors with different focus points, addressing diverse constituencies – if the main goal is similar.
- The main demand that gave an answer to all problems connected to Schiphol was less flights. Where the aviation sector keeps repeating that a transfer hub is crucial for the economy, the organisations around airports consistently insist that the ‘degrowth of aviation’ is the only solution to the current problems. This has avoided the groups being played off against each other and steadily increased support from other people.
- The same holds true for the diversity of tactics and strategies applied, from planting trees to civil disobedience to litigation. Respecting differences, accepting each actor to bring its own strength and having its own role is key for success. Cooperation between all kinds of stakeholders is important – except one:
- Non-Cooperation with the industry was key. Often the sector, together with governments, invite residents to talk, but mainly without being truly open to civil society’s demands, instead claiming that they have ‘involved’ the residents, which helps them legally and politically. An additional reason for not cooperating is that the government should be the responsible for setting the aviation framework and therefore be the main addressee. It makes sense to boycott the problematic reality that the state often hands over this power to the industry, counting on it to set the framework.
In one case, a residents’ organisation did accept the offer to participate, but with the goal of being thrown out and creating a media storm over this. This highlighted the failure of the participation process and gained political traction to stop airport expansion. - Extensive research from a variety of actors has been important. Hiring lawyers or creating campaigns is one thing, but collecting the data is the first step. The Open Information Act has been a useful tool to get insight into government documents. It is key to remain credible, be accurate with information, admit mistakes and not exaggerate. At Schiphol, legal opportunities were used wherever they came up.
How to proceed?
Another Dutch government plan awaiting response from the European Commission is a CO2-ceiling on Dutch airports. While not meant to create stricter aviation emission goals, it is an important instrument to enforce and safeguard existing goals. Obviously, once established and given a European green light, CO2 ceilings can easily use airport capacity limits as a backbone to achieving renewed emission targets.
In December 2023, Dutch elections led to a new extreme-right government coalition in the Netherlands, which adopted the following position in its policy on Schiphol: ‘In the coming years, the focus should be on the legal protection of local residents (noise pollution), while maintaining the network quality of Schiphol. In the longer term, continued growth with more silent and cleaner aircraft will be possible’.
This cautious policy by an extreme-right coalition shows the power of court cases, which have now become impossible to ignore. It, however, also shows the techno-optimism that many others don’t share.
On November 19th 2024, the Hague district court will rule on whether the Nature Permit for Schiphol is legally valid, potentially ordering a significant reduction of nitrogen emissions from aviation, which in practice can only be done by reducing aircraft numbers. The irony is that where the EU has limited options for airport capacity reduction over a noise objective, EU law on biodiversity might require an even stronger reduction in Schiphol capacity. Still, it is unclear whether the new far-right minister will even recognise the need for a capacity reduction.
For everyone interested in reducing air traffic numbers at a European airport, it is interesting how the mentioned regulations and treaties will finally be interpreted in the Schiphol case. The vagueness in the legal framework has led to conflicting rulings and allows room for undisclosed levels of influence from state or company actors to defend existing or future industry positions. We can all learn from understanding the arguments used in these legal test cases, where restrictions in airport capacity or emissions, or tools to control them, have been proposed to the Commission. Reducing airport capacity on environmental grounds will be increasingly interesting as the climate emergency unfolds. Article 20 of EU Regulation 1008/2008sets conditions for environmental measures like capacity reduction, again stating the solution should not be more restrictive than necessary to relieve the problem. The question is, when is the problem legally considered serious enough to limit airport capacity?