Erik Kamphuis, dairy farmer in Hardenberg, does not understand this Monday at all. He’s always followed the rules, he says, and yet he’s back in court. Together with farmer Grolleman from Heeten, farmer’s wife Pelleboer from Mastenbroek and representatives of dairy farm Kippers from Witharen. Bad luck for them, because the environmental organization Mobilization for the Environment (MOB) has randomly selected their farms as example cases in a marathon lawsuit against the province of Overijssel.
The mega process – of course – revolves around nitrogen. It concerns the lack of nature permits at about thirty livestock farms in Overijssel. The court in Zwolle has set aside six days for the case. And this is just the tip of the iceberg: the MOB lawyers have dozens of lawsuits pending across the country to force governments (usually provinces) to provide adequate nature protection. Most go back to a groundbreaking ruling from May 2019 by the highest administrative court, the Council of State. That ruling obliges governments to demonstrably reduce harmful nitrogen precipitation in Dutch nature reserves, before provinces and municipalities are allowed to allow new economic activities that emit nitrogen.
According to the environmental organization, the government is not complying with the nitrogen ruling. Almost three years after the judgment, the government has hardly taken any concrete measures that actually reduce nitrogen emissions. In fact, the national government, provinces and municipalities are looking for legal boundaries everywhere in order to be able to build as much as possible and to spare nitrogen-producing companies, including biomass power stations and livestock farms. A large part of the nitrogen lawsuits that MOB has filed are about tolerating illegal – because unlicensed – expansions of livestock farms, the controversial trade in ‘nitrogen emission rights’ and the questionable effectiveness of technical aids to reduce emissions from livestock houses.
Second nitrogen statement
However, the court case in Zwolle that Kamphuis and the other livestock farmers attend is about something else. The Council of State issued a second nitrogen ruling in May 2019. That ruling, which has been somewhat overshadowed, stipulates that dairy farms must have a nature permit for spreading slurry on their land and for grazing their cows.
Nitrogen is released during the fertilization and grazing of agricultural plots and these emissions must be taken into account in their entirety when assessing permit applications by livestock farms, according to the Council of State. It is not about small beer: grazing and (mainly) fertilizing cause about 25 to 30 percent of the total nitrogen emissions from dairy farming. The effect of those emissions on nearby nature reserves is therefore not necessarily negligible. That is why those emissions must at least be compensated before a province grants permission for the expansion of a livestock farm.
This somewhat unknown nitrogen ruling also has potentially major consequences, because no Dutch dairy farms have a nature permit for fertilization and grazing. The national government only requires a nature permit for stable emissions, which means that a large part of the ammonia emissions is not taken into account. According to environmental organization MOB, the government has been issuing ‘half’ or ‘incomplete’ nature permits for years. The Council of State has agreed with MOB in this regard. Thousands of dairy farmers now actually have to apply for a new nature permit that does take into account the nitrogen emissions outside the barn.
Only the provinces, which are responsible for enforcing the licensing rules, categorically refuse to comply with the Council of State judgment. They put forward various reasons for this. First, enforcement would be disproportionately hard on the farmers, who relied on the fact that they did not need a permit for fertilization and grazing. The government had always announced this until May 2019.
In addition, said commissioner Tijs de Bree of the province of Overijssel, ‘the provinces are working with the cabinet on a sound plan to significantly reduce nitrogen emissions’. ‘As a province, we are already doing a lot in nature conservation and are busy with the provincial elaboration of the national nitrogen policy. The new cabinet has earmarked 25 billion euros for this. That policy will yield results in the short term.’ In that context, he just wants to say, it is not fair to harass arbitrary farmers such as Kamphuis and Grolleman with writs of execution. After all, the nitrogen problem will soon be solved.
From judge to judge
But that is what the public administration has been claiming for twenty years, Valentijn Wösten counters. Wösten is a lawyer for MOB. ‘Not enforcing environmental legislation is simply the norm in the Netherlands’, he grumbles. ‘Governments justify this by referring to future measures that will lead to sufficient nitrogen reduction. But then that never happens.’ When asked, Provincial Executive De Bree cannot cite an example in which Overijssel did act against livestock farming without an (adequate) nature permit.
Since 2012, Wösten has been fighting with provinces about the missing nature permits for fertilization and grazing. He wins lawsuit after lawsuit, but Dutch administrative law offers governments endless possibilities to ignore unwelcome judgments. Opportunities that the provinces gratefully seize to buy time and undisturbed to continue the politically motivated policy of ‘doing nothing’. Politically motivated, because aldermen and deputies generally consider economic interests more important than nature interests.
Wösten’s lingering legal battle with the province of Limburg illustrates this. In 2012 and 2014, he submitted three enforcement requests to the province for the lack of ‘fertilization and grazing’ permits. The province rejected those requests in mid-2014. Wösten appealed to the Council of State, which annulled the Limburg non-enforcement decision in early 2015. The Limburg provincial government took a new toleration decision in July 2015, with a slightly different motivation. Wösten went back to the Council of State on behalf of MOB. In 2019, this legal action resulted in the aforementioned second nitrogen judgment about fertilization and grazing. MOB was again found in the right.
However, the administrative court can only compel governments to take a specific decision in a limited number of cases (in this case: to enforce). So this time too, the Council of State could only instruct the province to take a new decision, ‘with due observance of this judgment’. Limburg nevertheless decided again not to maintain the permit requirement, this time on the basis of yet another argument. So Wösten went to court again. The court in Roermond again ruled in his favor in November 2020: Limburg had to make a new decision for the umpteenth time on MOB’s enforcement request. Limburg deliberated and decided for the fourth time that enforcement is not necessary.
Last Tuesday, Wösten joined the Roermond court to challenge that decision again. ‘That hearing was exactly ten years after I submitted my first enforcement request. Can you realistically ask someone to litigate for more than ten years? In administrative law you fight as a litigant like David against Goliath. Many lawyers therefore no longer even start administrative law cases. But I am a persistent person.’
‘The farmers are the victims’
Hans Besselink, the lawyer for the province of Overijssel, appears to be equally unwavering in his position in hearing room 8 of the Zwolle court. He argues that the four livestock farmers selected by the MOB do not need a new nature permit, because their fertilization and grazing behavior is still exactly the same as in the reference year 1994. Because the European nature protection law only came into effect after that, according to the lawyer there is an existing situation under old Dutch law. Only livestock farmers who have adapted their business operations after 1994 must apply for a new nature permit, including new nitrogen calculations. According to him, that does not apply to these four livestock farmers.
He also points out to the judges that the average nitrogen emissions from fertilizing and grazing have decreased significantly in recent decades. This is the result of improved application techniques (injecting manure) and the tightening of legal standards. According to him, the province can also assume that ammonia emissions outside the livestock shed have not increased since 1994.
Wösten tells the judges that MOB is not out to close livestock farms, but rather wants to offer the farmers and their professional colleagues present legal certainty. ‘They are the victims of the fact that the province does not allow them to apply for a complete, ie legally tenable, nature permit. So it is not the province, but MOB that stands up for farmers’ interests. It’s a shame they don’t see that.’
Dairy farmer Kamphuis and his fellow sufferers cannot follow Wösten’s argument. In any case, he is not their brave knight. ‘MOB wants all farmers in the Netherlands to disappear’, says the resident of the Vechtdal. The trial process, which he has been involved in since 2018, does not leave him in the cold. ‘The whole country must be swept empty if it is up to die Wösten. I really don’t understand what this process is about. There is no nitrogen problem at all.’
A local farmer has parked a green tractor in front of the entrance to the court as a statement of support. With a protest sign on the front: ‘When injustice becomes law, resistance is a right.’