The Dutch prime minister Mark Rutte calls it the biggest political crisis in his career after the plane crash over Ukraine. The Dutch government must therefore pull out all the stops in the last few weeks to prevent “the Netherlands from locking down”. The Dutch Council of State decided on 29 May 2019 that the Dutch Action Plan Nitrogen (APN) is not in accordance with the European rules for the protection of the environment. As a result, a lot of important projects that rely on the APN, such as the redevelopment of the airports in Lelystad and Twente or the reinforcement of the dikes, had to be put on hold. The stalemate that the Netherlands is experiencing today has led to a massive protest from the agriculturists and contractors in recent months. last month, the Dutch government announced a number of emergency measures to prevent the Dutch economy from stalling, with a speed limit of 100 km/h on motorways as one of the most striking measures.
Can this nitrogen issue spread to the Flemish Region? To answer that question, a slightly more detailed explanation of the Dutch APN and the judgement of 29 May 2019 of the Dutch Council of state is required.
It follows from European regulations that projects cannot have negative effects on a nature conservation area, such as Natura 2000 areas. Projects with potential negative effects must be subjected to an appropriate assessment (passende beoordeling) that may lead to mitigating (flanking) or compensatory measures.
In an attempt to implement these European regulations, the Dutch state adopted the APN on 1 July 2015. The APN consists of the following components:
- measures to restore and improve the natural values of certain nature conservation areas;
- measures to prevent the further deposition of nitrogen within the nature conservation areas;
- the “deposit bank” principle: as a result of the measures mentioned above, a margin is created that can be used to license projects with nitrogen deposition.
As a result of the deposit bank principle, no additional appropriate assessment was required to permit individual projects if the project’s nitrogen deposition was limited to 1 mol/ha. The Dutch government counted on the positive effects of the measures of the APN, although these had not yet been materialized and/or found to be effective.
This is where the shoe pinches for the Dutch Council of State. Following the example of the European Court of Justice1 , the Dutch Council of State ruled that potential (read: not realized or not materialized) positive effects cannot be taken into account when conducting an appropriate assessment. In other words, there can be no reasonable scientific doubt that the proposed projects do not have harmful effects on the nearby nature conservation areas. According to the Council, the measures in the APN did not meet this (high) standard, so that the deposit bank principle cannot be taken into account when activities are started or re-licensed. In a second judgement of the same day, the Dutch Council of State ruled – again subsequent to the European Court of Justice – that an exemption for the grazing of livestock and the fertilization of land is also not in accordance with the European rules because it is also not (scientifically) established that these activities affect nature conservation areas.
The APN was thus assessed to be unlawful, and could therefore no longer serve as a foundation for new projects or the re-licensing of projects. As a consequence, a lot of projects for which the permit was not yet final were found to be illegal as well, which of course had a huge impact on current and urgent agricultural and construction projects in the Netherlands.
In the Flemish Region, however, things will probably not go down the same road. The Flemish government has been working on its own APN for some time now, but no definitive or even provisional version of the APN has been approved yet. In the meantime, Flanders applies transitional measures based on so-called frameworks of significance (significantiekaders). The most important difference with the Dutch system is that an appropriate assessment of individual projects is of paramount importance in the Flemish Region. One does therefore not fall back on a general appropriate assessment of a regional nitrogen program. For each individual project, it is examined whether there are potential negative consequences for a nature conservation area.
In first instance, this will be checked on the basis of the pre-test, which maps the geographical impact of the nitrogen deposition of the project based on a so-called deposition scan (depositiescan). If a nature conservation area is located within the zone where there is a likelihood or risk of a meaningful environmental damage, a further appropriate assessment must be made. For this appropriate assessment, the frameworks of significance are used based on the so-called “Practical Signs” (Praktische Wegwijzers). If these Practical Signs show that the project remains below the threshold of 5% of the critical deposition value (CDV) (kritische depositiewaarde (KDW)), it will be assessed that there is no significant negative effect on the nature conservation area.
Does this mean that European and Dutch case law on nitrogen will not have any consequences for the Flemish nitrogen policy? Negative.
After all, this case law shows a very strict interpretation of the appropriate assessment. A guarantee must be given that the natural features of nature conservation areas are not affected. There may not be any reasonable scientific doubt about this. The judgement will therefore have an impact on how the appropriate assessment will be carried out on individual projects. The quality requirements of the conclusions of this appropriate assessment will have to meet a higher standard. This also raises the bar for the future Flemish APN.
Furthermore, only the positive effects of mitigating (and not compensatory) measures may be included in the assessment of activities with nitrogen deposition, this is insofar the expected positive effects are established at the time of the appropriate assessment. The effect of the other measures such as compensatory measures can only be taken into account when assessing the conservation status of natural values and not when conducting the appropriate assessment in itself.
Some caution is also required when handling the frameworks of significance. As a result of the European case law, nitrogen deposits below set nitrogen limits cannot, with reasonable scientific certainty, have any negative effects on the natural characteristics of nature conservation areas. The values included in the Dutch APN are considerably lower than those used in the Flemish Region, and even these where considered insufficient (partly due to the risk of cumulative effects).
Another parallel that can be drawn from the Dutch policy to the Flemish policy is the lack of any permit requirement for the grazing of livestock and the fertilization of land. An exemption can only be justified if there is an objective, scientific justification why these projects have no impact on the natural values of nature conservation areas. In our opinion, there is currently no justification for this in the Flemish legislation.
To conclude, we can state that although the Flemish Region will not immediately end up in the same impasse as the Netherlands, the European and Dutch jurisprudence will also have an impact on the Flemish nitrogen policy. The bar for individual appropriate assessments has been raised significantly and the Flemish APN will have to comply with the conclusions of the European Court of Justice as well. The question also arises to which extent the frameworks of significance and exemptions for the grazing of livestock and the fertilization of land have a sufficient scientific basis to be retained.
If you have further questions about the Flemish nitrogen policy and its impact on your projects, do not hesitate to contact us.
1 CJEU 7 November 2018, C-293/17 and C-294/17
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.