Today, the highest administrative judge on planning and environmental matters in the Netherlands, the Administrative Law Division of the Council of State (Council of State), ruled on the spatial planning consent, as well as the environmental permits for the Porthos Carbon Capture and Storage (CCS) project. In short, the Council of State concluded that these consents were issued in accordance with the applicable nature preservation requirements under the Dutch Nature Preservation Act and EU Birds and Habitats Directives.
The ruling gives the green light to the Porthos project, and as such (further) paves the way for future CCS-projects in the Netherlands.
At the same time, from a formal legal perspective, the Council of State reiterates the importance of a case-specific approach when assessing potential negative effects of development projects. As such, this ruling shows 'quick legal fixes' are not around the corner for projects facing nitrogen deposition-related nature permit complications.
The Dutch central government considers CCS to be an effective and relatively cheap way to achieve CO2 emission reductions in the short term. In addition, it is expected that CCS shall play an important role in combating climate change as CCS technology is envisaged to allow for achieving negative emissions on the long term.
Porthos stands for Port of Rotterdam CO? Transport Hub and Offshore Storage. The aim of the Porthos project is to store CO2 from industry in the Rotterdam port area in empty gas fields under the North Sea. For this purpose, a CO2 transport pipeline will be constructed from the port area to the North Sea. A compressor station will also be built on the Aziëweg in Rotterdam and the gas production platform P18-A in the North Sea will be converted into a CO2 storage platform.
Central to the legal challenges against the Porthos Project as raised by environmental interest group Mobilisation for the Environment (MOB) was its claim that the Dutch central government unlawfully considered that no permit pursuant to the Nature Preservation Act applied in relation to the temporary nitrogen deposition resulting from the construction phase of the project. MOB reasoned that potential negative effects on nearby nature preservation areas for such temporary nitrogen depositions could not be ruled out and therefore a nature permit should have been applied for.The Dutch central government had initially implemented a general statutory exemption for nitrogen deposition resulting from construction works in the Netherlands, on which exemption it initially relied to allow the Porthos project construction works without any individual nitrogen impact assessment.
In an interlocutory ruling in November 2022 in this same case, the Council of State deemed such general construction exemption breached the EU Birds and Habitats Directives, forcing the authorities to carry out a nitrogen impact assessment at the individual level of this project. As part of the proceedings after the interlocutory ruling, MOB alleged that the available nitrogen assessment fell short on several pointsinter aliaby underestimating the nitrogen impacts on relevant preserved habitats.
Temporary and limited exposure is accepted - focus on case-by-case assessment
The Council of State today in its ruling concludes that the Porthos project does lead to a temporary and limited increase in nitrogen emissions on parts of the surrounding Natura 2000 areas, ranging between 0.01 mol and 0.57 moles of nitrogen per hectare per year. At the same time, it however concludes that sufficient evidence was provided, based on objective data on the basis of which it can be ruled out that the relevant nature preservation areas shall be "significantly affected". On that basis the spatial planning decision and permits are upheld.
Consequences for energy transition
Of course, for the Porthos project as such, this ruling is a great leap forward. Porthos' permits have now become irrevocable and thus the construction works can begin. This frees the way to a potential absorption of 10 per cent of the CO2 emissions from the Rotterdam industry each year.
The ruling as such can be considered a positive step towards contributing to the energy transition in the Netherlands and CO2 reduction goals as set by the Dutch central government. Also, enabling a CCS project of this scale, might further accelerate efforts in the Dutch market to develop and scale-up related energy transition projects and technologies.
From a legal perspective, the Council of State stresses that an ecological impact analysis must be made for each plan or project on an individual basis, considering the specific environmental characteristics and circumstances of the nature preservation areas (potentially) involved. Even in the case of a temporary and limited increase, as in this case. As such, its acceptance of this specific project cannot be deemed to constitute a threshold value of any sorts for future projects. At the same time, the ruling does provide for a clear example on how developments need not be locked up due to temporary nitrogen depositions resulting from their construction phase.
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