As of today, it will be more difficult to realize construction projects in which nitrogen is emitted. In a long-awaited ruling, the Council of State ruled on Wednesday that the exemption for construction projects to emit nitrogen is in violation of European nature legislation and has expired.
This means that for all current and future permit applications for a construction project, it must first be calculated how much nitrogen is emitted before a permit is granted and construction can begin. Permits already granted are irrevocable, which means that construction can continue in those places.
Nature damage
There will be no total construction freeze, the Council of State emphasizes in this ‘interim ruling’. In addition, permission can be given for projects of “great public interest” if there are no alternatives and the damage to nature is compensated, says the highest administrative court in the Netherlands.
The exact scope of the ruling of the Council of State is still unclear, because it is not certain how many construction projects will be affected. What is certain is that the ruling will have consequences for large parts of the construction sector and will cause delays for many projects.
Construction had been anxiously awaiting the decision of the Council of State for months.
The ruling also appears to be a major setback for the government’s ambitions when it comes to housing construction and the energy transition.
The Hague trick
The reason for the case was the Porthos construction project, a twenty kilometer long pipeline from the port of Rotterdam to depleted gas fields under the North Sea. In the future, CO . will have to be used in the gas fields2 being saved.
Although the building exemption has now expired, this is only an interim ruling in the Porthos case itself. A separate calculation was made for the nitrogen consequences of the project, but it was submitted too late. Environmental organization MOB (Mobilization for the Environment), which had initiated the case, will be given six weeks to respond.
Cranes and shovels
Thanks to the construction exemption, the construction sector was able to get back to work relatively quickly when the Council of State in 2019 labeled the nitrogen program ‘PAS’ as insufficient. The idea behind the exemption was that the nitrogen deposition of cranes, shovels and aggregates on the construction site is a one-off and relatively small compared to the so-called use phase. Only the emissions from the use phase, for example from cars that drive up and down from a new neighborhood every day, counted for the permit application.
Since the exemption was first discussed in 2019, there has been criticism. The Netherlands Environmental Assessment Agency (PBL) questioned whether the exemption is permitted under European law, and the Council of State was also critical.
Environmental organization MOB challenged the construction exemption through the Porthos construction project, a pipeline for CO2-storage in depleted gas fields under the North Sea. According to MOB, the project would cause nitrogen precipitation in the protected Natura 2000 areas Solleveld & Kapittelduinen, Voornes Duin and Westduinpark & Wapendal near The Hague. With the loss of the permit for Porthos, all future construction projects in the Netherlands will have to make separate nitrogen calculations for their construction project.
The result is significant delays. The provinces, which have to assess the applications, have staff shortages. All pending permit applications that make use of the construction exemption must be resubmitted and assessed after the ruling. Permits already granted are irrevocable, which means that construction can continue in those places.