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#2 The nitrogen-debate: Nitrogen emission and environmental law

– Study Association KOers

In the Netherlands we have a nitrogen-problem. The emission per hectare is by far the highest in Europe. This leads to problems for nature. Biodiversity decreases because nitrogen-sensitive species are being overgrown by general non-sensitive species. It leads to acidification of sensitive soils, the release of aluminium and stark increased aluminium-toxicity, especially on poor sandy soils. That is why many Dutch nature reserves are in poor quality.

This also threatens our ground- and drinking-water. Nitrogen in the form of ammonia also stimulates forming of particulate matter in the atmosphere and thus forms a threat to public health.

Nitrogen deposits in two forms. In oxidized form (NOx) as being caused mainly by industry, traffic and households. And in reduced form (NH3) as mainly being caused by agriculture. About one third of nitrogen-deposition on Dutch nature reserves is emitted from abroad, about half is being emitted by agriculture, and the rest by industry, traffic and households. This means agriculture causes about two third of nitrogen-deposition from domestic origin; especially because of the extremely large livestock industry and its emissions from housing and manure.

The Habitats Directive
In Europe there is a network of European protected nature reserves called the Nature 2000 ecological network. There is European legislation to protect these sites: the Habitats Directive. Therefore, necessary conservation measures must be established, measures must be taken to counteract threats, and any project likely to contain a threat to nature, must be subjected to a licensing procedure. A permit only may be granted after having ascertained it will not adversely affect the integrity of the site. Exceptions can only be made for imperative reasons of overriding public interest in the absence of alternative solutions. Adverse effects must then be compensated.
The Habitats Directive must be implemented in national legislation. If this is not being carried out right, the Directive overrules the national legislation.

Because of the nitrogen-surplus, livestock farms were no longer allowed to increase their ammonia-deposition on nature reserves, since this deposition causes a threat to them. Although this did not stop enterprise development – with the use of emission-reducing techniques or by buying emission-rights of other livestock-farms, livestock-growth remained possible – this was being considered a nuisance by permit-procedures. That is why the government came with the Programmatic Approach Nitrogen (PAS in Dutch).

The essence of this program was a cluster of measures to reduce nitrogen-deposition in the future and nature-management-measures to protect nature in sites against effects of nitrogen-overload. On the basis of expected results of these measures, permits were being granted for expansion of nitrogen-emissions.

Six pilot cases
A number of nature conservation associations have appealed permits being granted on the basis of this program, especially because of the very low ambition of the program. The PAS only anticipated a very limited nitrogen-reduction over a long period of time (till 2030). It gave by no means any prospect of a solution to the nitrogen-problem. Besides this, the promised effects of the measures were not trusted.
Appeals against six permits for livestock-farms were being appointed as pilot-cases by the Council of State, the highest administrative law court in the Netherlands. On the basis of these court-cases, a verdict over the PAS would be given. These appeals were being brought on by the ´Werkgroep Behoud de Peel´, an organization which protects the peat bog remnants on the border of the provinces Brabant and Limburg. As their counselor, I took care for this procedure.

The position of European Directives on the PAS
The appeals were being brought on early 2016. It was being claimed that the Dutch nature conservancy law, which included the PAS, was conflicting with the Habitats Directive and thus non-binding. In case the court of a member-state has doubts about the interpretation of European Directives, requests for a preliminary ruling are being made to the European Court in Luxemburg. May 2017 the Council of State has made this request in a verdict. The essence of this verdict was that although there are flaws in the substantiation of the PAS, these could probably be repaired since in essence the program seemed in accordance with the Habitats Directive. Nevertheless, since the Council of State was not sure about its position, a request was being made.
Our argument by the European Court contains in essence 2 proverbs:

Don´t sell the skin before you have caught the bear. The effects of the PAS-measures were intrinsically uncertain. On the basis of uncertain effects it is not possible to rule out adverse effects with certainty. Thus the program can not be a basis for granting permits.
Don´t sell nature management organizations funding from their own pockets. The PAS-measures to reduce nitrogen and the nature management-measures, are necessary measures to counteract threats. So there exists an obligation to install these measures in the first place. For that reason the effects of these measures cannot be invoked to grant a permit with an adverse effect. To do so would mean to act contrary to the main objective of the Habitats Directive: the protection of nature. That is why the PAS did not solve the problem.

These principles were being confirmed by the European Court. The PAS did not meet these requirements. Unfortunately, the European Court's judgment was formulated so enigmatically, the Dutch state advocate recognized an opportunity to interpret is as in compliance with the PAS. 

The results of the ruling 
However in the verdict of May 29, 2019, the Council of State has incorporated these principals and has made it perfectly clear that the PAS is not in compliance with them.
This does not mean the PAS is past tense: the nitrogen-reduction measures and the nature-management-measures must continue. But the PAS can no longer be invoked to grant permits. However the PAS was being invoked as a national screening network for very many licenses – not only for livestock farms, but also for many construction projects and road construction. Although the court cases against the PAS were pending for already 3 years, the Dutch government never developed an alternative. For this reason right now many permit applications are on hold, pending a new testing framework. This has already triggered numerous farmers-protests.

The new testing framework will have to be a lot more ambitious. Measures will have to be more binding and precise and above all the possibility for nature restoration must be secured. Without this, it is not possible to determine whether a given measure is not necessary for nature recovery. Since only if a measure is not necessary for nature recovery it can be invoked in order to grant permits. To me this seems to be the key to a legally sustainable new testing framework. In this it is reasonable to ask the livestock industry to take the lion's share of the measures, since the lion's share of the nitrogen-problem is being caused by them.