Wednesday’s ruling on Gelderland’s A15 route concerns the whole of the Netherlands

Many builders, farmers, administrators and protectors of nature will be glued to their screens at 10.15 am on Wednesday morning. The Council of State will then rule in the important nitrogen case ‘ViA15’, which has been going on for years. The highest administrative court considered the plans for connecting and widening the A12 and A15 motorways in the east of Gelderland, laid down in the ViA15 route decision. The ruling is seen by lawyers and interested parties as a judgment with far-reaching consequences for all construction activities for which no nature permit has yet been obtained.

Bottleneck

The reason is the road network at the A15, which runs between Arnhem and Nijmegen. It’s an old fashioned one bottle neck: the highway runs east past the Ressen interchange onto a single-lane road, ending abruptly at a T-junction a little further on. Turn right towards Bemmel, left towards Huissen.

There has been talk for at least fifteen years about expanding this part of the Gelderland motorway network. Rijkswaterstaat has been instructed to widen the A15 and to extend it twelve kilometers from the T-junction for a connection with the A12 at the German border. The extra asphalt on the A15 should relieve congestion around Arnhem and Nijmegen and create a direct connection between the Port of Rotterdam and the German Ruhr area.

The A12 also badly needs widening. The latest figures from the ANWB show that the traffic pressure around Duiven has increased spectacularly. In the mornings, this is where the most traffic jams in the country are.

Although the contractor combination GelreGroen has already purchased building materials and the first minor works have already been carried out, the project has been at a standstill since 2017. That year, then-Minister Cora van Nieuwenhuizen (VVD) laid down the plans in the route decision ViA15, which was immediately challenged with 48 objections to the Council of State. The main bottleneck: nitrogen.

The objectors, local residents and businesses in the area, have major problems with the extra asphalt along the Rijntakken Natura 2000 area. The construction and future use of the widened roads will result in more nitrogen precipitation in nitrogen-sensitive Natura 2000 areas. The calculation method for compensating those nitrogen emissions is flawed, say the objectors.

With this, the highway widening has been dragged into the nitrogen dossier, and on Wednesday it will not only be about the fate of the renovation of the A15 and the A12, but about the granting of permits throughout the Netherlands. Major delays threaten the government’s plans for housing, energy transition and the construction of major infrastructure.

Cut-off limit

The main question in this case is up to what distance you should measure the precipitation of nitrogen for an application for a nature permit. Also called: the ‘cut-off limit’. With a calculation in the Aerius calculation model, a farmer or builder must demonstrate that his planned project will not cause more nitrogen precipitation in vulnerable nature areas.

In the ViA15 case, then-minister Schouten was already reprimanded by the Council of State in 2021. The cut-off limit of 5 kilometers used at the time, which only applied to road traffic, was not properly substantiated, according to the court. The minister was given six months to come up with a new calculation method.

Based on scientific research, Schouten then moved the cut-off limit to 25 kilometers – and not just for road traffic, but for all nitrogen sources. The scientific substantiation of the current cut-off limit of 25 kilometers is at stake on Wednesday at the Council of State. Critics, including environmental organization MOB, argue that nitrogen settles much further than 25 kilometers and that those emissions are not currently measured.

Another months delay

If the court decides that the substantiation of the minister is not good enough and that the cut-off limit of 25 kilometers may not be used, this will have enormous consequences for the granting of permits in the Netherlands. “Aerius calculation model will then have to be adjusted, because it is now based on a cut-off limit of 25 kilometers,” says lawyer Rachid Benhadi, who specializes in environmental law. “Using Aerius is now legally the only way to get a nature permit.” All current license applications will then have to be recalculated after a new Aerius version becomes available, just like the licenses already granted for which an appeal procedure is still pending.

There is also the question of what the cut-off limit should be. Major delays seem inevitable in that case, says Benhadi. “Determining the new cut-off limit and performing the calculations again has already taken several months separately. And in the meantime, the requests pile up, which in turn leads to a bulk of requests to be handled once Aerius is operational again. Only the permits that are currently irrevocable are safe.”

Rejection of the current ‘cut-off limit’ will also mean that no permits will be issued for the time being for new activities involving nitrogen emissions. And that would seriously jeopardize the housing plans of Minister Hugo de Jonge (Public Housing, CDA).

In the ViA15 case, Minister Schouten was already reprimanded by the Council of State in 2021

Apart from the question of how much nitrogen is released when the houses themselves are built, roads to the new residential areas must also be built. The construction of wind and solar parks – badly needed for the energy transition – is also experiencing significant delays. This would also apply to the construction of new infrastructure, were it not for the fact that Minister Harbers (Infrastructure, VVD) unexpectedly announced a construction freeze for new infrastructure projects in March. The money that was available for this will instead go to the repair and maintenance of existing roads and bridges. And that while the list of desired asphalt upgrades is long. Whether it is the A67 near Leenderheide, the A4 near The Hague, the connection of Heiloo to the A9 or the renovation of the Hoevelaken junction on the A28 – in fact, for every A-road, expansion work will not be carried out in the coming years, regardless Wednesday’s statement.

Other options

Last year, the Council of State issued a judgment in another nitrogen case. That was about Porthos, the project in the port of Rotterdam in which CO₂ is stored under the North Sea. Lawyers saw the judge’s ruling, which indirectly ended the exemption for nitrogen emissions in construction, coming.

According to lawyer Benhadi, this is different in the ViA15 case. “It is difficult to estimate which way it will stand out. It is a highly technical matter, and even the judges have been advised by the Advisory Administrative Jurisdiction Foundation for the Environment and Spatial Planning (STAB). Everything will depend on the scientific reports submitted by the objectors.”

Are there other options available? In addition to the complete retention or disappearance of the cut-off limit, there is still a middle ground, according to Benhadi. “The court could rule that the cut-off limit can be maintained for small projects, but is not valid for larger projects. That would mean that small-scale housing construction, which releases relatively little nitrogen, can proceed sooner.” But according to Benhadi, this will immediately cause a new discussion: because when is a project ‘big’? “That in turn provokes procedures.”