The judges have had enough. They send a clear message to politicians: the creative interpretation of European nature conservation laws must come to an end. The government has been trying to evade those laws for decades. In order to comply with EU guidelines, national nitrogen emissions must be reduced. That requires painful measures that will hit intensive livestock farming hard. Politicians do not dare to burn their hands on that. So drivers look to the edges of the law to continue as before.
But the legal net is starting to close around the new cabinet. Environmental groups have recently won major lawsuits against the government. On Monday, the Zwolle court slapped the province of Overijssel on the fingers, because the province tolerates companies without a nature permit. These companies illegally spread nitrogen over protected natural areas. When deciding not to enforce the permit requirement, the province only looked at the economic interest. The importance of nature hardly mattered. That is against the law, the judges say. They overturned the county’s toleration decision.
The Utrecht court did the same in September in a similar case. Tolerating approximately 3,500 illegal nitrogen emitters (mostly livestock farms) is national policy. Now that two courts have determined that this policy of tolerance is unacceptable, the cabinet is in trouble.
‘Latent’ allowances
At the end of December, the East Brabant court annulled the nature permit for the coal-fired power station near Geertruidenberg. Reason: that permit gave the Amer power station permission to emit much more nitrogen than necessary, and also much more than the power plant actually does. This could lead to the unused emission space being used in the future, as a result of which nitrogen emissions increase instead of decrease. In view of the nature conservation objectives, this is not permissible, according to the judge.
The Amercentrale judgment has potentially far-reaching consequences, because there are many nature permits in the Netherlands with ‘latent’ nitrogen emission rights. All those companies can increase their nitrogen emissions without anyone being able to prevent it.
In fact, the government encourages the use of unused nitrogen space by permitting trade in emission rights. A municipality that wants to build houses needs nitrogen space. This can be created by, for example, buying up a livestock farm and closing it. The municipality may then use 70 percent of the released nitrogen space to compensate for the emissions from the new residential area. The problem is that nitrogen space that has been licensed but is not used in practice may also be used for this purpose. The NRC explained on Friday to which excesses that can lead.
Netting leads to more emissions
For example, in 2019 the province of Limburg used the nitrogen space in the nature permit of an empty farm for the expansion of a rail terminal. It didn’t matter that the farm was no longer producing nitrogen at that time. Now diesel locomotives are racing past the Ravenvennen nature reserve, depositing even more nitrogen there than already whirled down.
In Burgh-Haamstede in Zeeland, the no longer existing nitrogen emissions from a burned-out department store have been used for the construction of a residential area. The municipality of Wormerland was able to realize 68 apartments thanks to the virtual nitrogen emissions from a cattle feed factory that has been out of operation for twenty years. In all these cases, the trade in nitrogen emissions, the so-called ‘external netting’, does not lead to less, but more nitrogen emissions.
Technical aids
Judges are also no longer enamored with the technical tools that are supposed to reduce nitrogen emissions from livestock houses. Scientific studies show that air scrubbers and low-emission stable floors work much less well in practice than on paper. Livestock farmers apply for nature permits to expand their livestock and claim that their nitrogen emissions do not increase, but decrease, because they take technical measures. Various courts have since rejected such license applications, with reference to the scientific research.
All these judicial admonitions seem to fall on deaf ears. The new Minister for Nitrogen, Christianne van der Wal, reacted with dismay on Friday to the revelations of the NRC. ‘If we start dusting off very old permits and use that space, we won’t do anything for nature. That’s what I call looking for the edges. That time is over. What we do must be legally sound’, she said firmly. If she thinks so, she should change the law, because the previous cabinet made these practices possible itself.
This new cabinet also wants to achieve a significant part of the intended nitrogen reduction with technical aids. Reducing livestock numbers by tens of percent, according to almost all experts the only realistic solution to the nitrogen crisis, remains a political taboo. The government prefers not to use coercion when buying up and closing livestock farms.