Disasters can put severe pressure on municipalities, provinces and other parties. Many decisions need to be made in the acute phase, for instance about what measures to take to mitigate the consequences and social unrest. In addition, much time goes into consulting with insurers and members of the Provincial Executive. It is important to realise that every action in the early stage may also have legal consequences, especially once the question arises whether the authorities can recover the costs incurred.
Prior knowledge of the potential legal consequences of their decisions will enable decision-makers to take more targeted action in crisis situations. This will increase the likelihood of successful enforcement of measures or recovery of costs, which in turn will prevent reputational damage and other harmful effects.
Provinces, municipalities and water boards are often faced with considerable costs in the wake of a disaster. This is because at the initial stage, all attention generally is focused on important, acute matters rather than the legal consequences of the choices made. While that does make sense, considering these effects from the start can help authorities to prevent them.
Sound preparation is worth the effort, not only to reduce the likelihood of an emergency but also to simplify the legal process surrounding it. In this way, municipalities, provinces, water boards, security regions and the Dutch State know exactly what to look out for if and when disaster strikes - in legal and organisational terms as well as in matters of communication.
Since the process surrounding a disaster can be complex, we regularly organise ‘lessons learned’ courses about enforcement in emergency situations. We also organise seminars together with the consultancy firm SGS Search, a market leader in the areas of inspection, checks, analysis and certification. As Edward Brans, counsel at Pels Rijcken and specialised in environmental and liability law comments: “My advice is to record the legal aspects of disasters in contingency plans and other scenarios. It prevents surprises and a lot of legal hassle. Public authorities must make sure that contingencies don’t create unexpected costs. Most of the time it doesn’t have to be that way, especially if the legal possibilities are used to the full. We have ample experience in this area.”
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Our Disasters & Environmental Enforcement team has been working closely together with municipalities, provinces, water boards and the State for many years. The team’s members co-author enforcement decisions and assess contracts between public authorities and the third parties engaged in case of an emergency. They advise on who may be subject to enforcement, levy pre-judgment attachments and negotiate with insurance companies to make funds available to clear away the environmental damage.