The cabinet and the construction industry are looking forward to this new judgment with fear and trembling. Lawyers estimate the chance that the government will lose this case very high. The Council of State renders a verdict in a lawsuit against the Minister of Economic Affairs, brought by environmental organization Mobilization for the Environment (MOB).
In 2019 MOB was also the claimant in the lawsuit about the Progammatic Approach Nitrogen (PAS). The PAS ruling was the impetus for the national nitrogen crisis, because it forces the cabinet to drastically reduce national nitrogen emissions.
Since that judgment, the government has had to check for all new economic activities whether they cause nitrogen precipitation on vulnerable nature. If damage to nature cannot be ruled out, the extra nitrogen deposition must be compensated with measures that reduce nitrogen precipitation on the same nature reserve.
Nitrogen exemption for construction phase
In order to prevent that construction would largely come to a standstill due to a lack of nitrogen space, the parliament included a nitrogen exemption for the construction phase in the law in July 2021. This provision means that the nitrogen released during construction work does not cause damage to nature and therefore does not have to be compensated. Because construction work is by definition temporary, according to the government, they cannot have any long-term effects on the quality of nature.
MOB disagrees. According to the environmental organization, the government should not assume that natural damage will never occur as a result of construction work. The temporary emissions of an individual project may be very small, but the cumulative emissions of thousands of construction projects across the country are not. Moreover, the European Habitats and Birds Directive does not allow any exemption for ‘temporary’ emissions, according to MOB. Most lawyers agree with MOB in this regard, which bodes poorly for the cabinet.
The building permit that MOB is challenging in this case has been issued for a major climate project in the port of Rotterdam. Four gas and oil producers in the Botlek area want to capture a total of 37 megatons of their greenhouse gas emissions and transport them via a long pipeline to empty gas fields under the North Sea. This Porthos project requires, among other things, the construction of a compressor station on the Maasvlakte. The construction work results in nitrogen precipitation on four Natura 2000 sites.
Climate goals in jeopardy
Climate minister Rob Jetten is also waiting for the verdict with clammy hands. The Porthos project should make an important contribution to achieving the climate targets for industry. If this project is delayed, those goals will be compromised. The construction of wind and solar parks will also be delayed. If the RvS rules in favor of MOB, a nitrogen calculation must still be made for all those projects. This also applies to housing projects. The construction sector warns of major delays in the construction assignment if the judge dismisses the exemption.
The court can also issue an interim judgment, whereby the RvS asks the cabinet for further substantiation of the construction exemption. The construction sector secretly hopes for this, because the government will then be given a few months to do so, after which the judge must still make a final decision. In that scenario you are soon a year further and as long as there is no final judgment, the construction exemption remains in force.
The RvS is very aware of the importance of this judgment, because the chairman of the administrative law department, Bart Jan van Ettekoven, reads the verdict directly at 10:10 in the morning. This is unusual; normally the RvS puts its judgments online immediately. The administrative court has arranged a live stream for all interested parties who want to follow the legal spectacle from behind the computer.