Before administrative judge Bart Jan van Ettekoven cleared his throat to read out the latest nitrogen ruling from his court, the ministries of Economic Affairs and Climate (EZK) and Agriculture, Nature and Food Quality (LNV) had already had a lot of crisis deliberations. So they have prepared for the consequences. Ministers and officials saw the storm coming months in advance. Their legal departments had long warned that the ministers would lose this lawsuit grandly.
In fact, lawyers foresaw this outcome before the construction exemption came into effect on 1 July 2021 at all. The Advisory Division of the Council of State, which assesses the quality of legislation before it is submitted to parliament for a vote, already told the cabinet in September 2020: delete that construction exemption, because it will be submitted to our colleagues from the Administrative Jurisdiction Division. not through. That advice fell on deaf ears.
The cabinet knowingly implemented a legally shaky law, because politicians did not want to accept that the nitrogen problem will have major consequences for the economy. The construction of roads, houses and industrial estates had to go on unimpeded at all costs. European legislation stipulates that activities that increase the nitrogen load on Dutch nature (and that is almost all activities) can only take place if the operator can prove that nature does not suffer as a result. It is crucial in this respect that, according to the EU directive, this certainty must be provided in advance, i.e. before construction begins.
Programmatic Approach Nitrogen
The fact that the European nature protection law works like this has been as clear as glass since May 29, 2019. On that date, the Council of State ruled in the lawsuit brought by environmental organization Mobilization for the Environment (MOB) about the Programmatic Approach to Nitrogen (PAS). . The PAS is the collective name for the national nitrogen rules that came into effect on 1 January 2015. The PAS rules in short meant that nitrogen-emitting construction projects could proceed without restriction, because the cabinet had vaguely intended to limit the additional damage to nature. to compensate in the long run.
The administrative judge made short shrift of the PAS, because under that regulation harmful emissions were allowed to take place without the associated, legally required compensation for nature being guaranteed. Since then, the Netherlands has been struggling with a nitrogen crisis. The PAS ruling forces the national government to seriously work on nitrogen reduction, a mission that was hardly on the radar of politicians before.
Implementing a nitrogen policy is a perilous undertaking for politicians. Significantly reducing nitrogen emissions requires sacrifices from intensive livestock farming, the largest source of nitrogen damage to Dutch nature. But construction companies and municipalities with housing plans also feel frustrated by the ‘new’ reality after the PAS judgment. This spring, a revolt broke out among local administrators and party members of VVD, CDA and ChristenUnie against the nitrogen plans of Minister Christianne van der Wal. The three ruling parties are terrified of an electoral beating in the Provincial Council elections.
Construction exemption is a new trick
Due to all this social resistance, the nitrogen policy is barely getting off the ground. More than three years after the PAS ruling, the cabinet has achieved virtually nothing concrete. Almost all proposed nitrogen measures are still in the planning phase and require further elaboration.
Because the cabinet and parliament believe that construction should not suffer as a result, they have resorted to a trick. In the construction exemption they have stipulated that nitrogen emissions from construction work may be ignored in permit applications. The reasoning used by the cabinet for this is exactly the same as with the PAS: the temporary emissions from all those separate construction projects are compensated by the central government through the ‘robust’ national nitrogen policy.
The Council of State now rejects that argument again, and for the same reason. The administrative court finds that this ‘robust’ policy is little more than future music. One by one, the Council of State is cutting through the meat grinder the policy measures that the cabinet has invoked in the lawsuit. The buyout of livestock farms is done on a voluntary basis, which means that the results are uncertain. The administration of low-protein cattle feed has not yet been regulated. Nor does the more frequent grazing of cows. The calculated results of climate measures that should lead to nitrogen reduction are no more than a poorly substantiated estimate. The proceeds of shore power facilities for shipping: guesswork.
As a result, there is no guarantee that nature is protected in advance against damage caused by the exempted construction work. The explanatory notes to the judgment show that the judges have weighed heavily on the fact that the cabinet is making little progress in reducing national nitrogen emissions. A solid government plan to reduce ammonia emissions from intensive livestock farming by 2030 was in fact completely dismantled this summer during the Remkes consultations, so that it is completely unclear what this policy will deliver and when.
General interest of construction
The judgment also shows that the government has shot itself in the foot by declaring the construction exemption applicable to large infrastructure projects. The administrative judges indicate that they have an eye for the general interest of housing and the construction of wind farms. Perhaps the Council of State would have upheld the building exemption if parliament had made it a temporary measure, limited to smaller building projects.
Instead, the cabinet chose to stretch the legal limits as far as possible. Precisely because the exemption has no end date and also applies to large road construction projects, the construction phase of which can take several years, the risk of natural damage occurring is too great. Because the cabinet has made the goat path too wide, the judiciary has now closed it.
The creative interpretation of the law in order not to have to make difficult political decisions is punished more and more by the courts. ‘No more goat paths!’, said Minister Van der Wal determinedly this spring. On Thursday afternoon she and her agricultural colleague Piet Adema can show in the House of Representatives how much of that determination is left.