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The Council of State gives the Cabinet as well as the Netherlands which is developing projects some air on the nitrogen dossier
Finally, there is a boost in the very sad nitrogen dossier – this is how the Cabinet received the provisional ruling from the Council of State on Wednesday morning. The highest administrative court ruled that the minister’s “separation limit” for nitrogen precipitation of 25 kilometers could be maintained for individual projects. This is particularly good news for the government and for the whole of the Netherlands developing the project, which once again faced months-long delays in granting permits when the class limit was removed.
No statement yet on the A15
The provisional ruling follows more than two years of litigation over the ViA15 route decision, and plans to extend the A15 towards the A12 at the German border. The board has yet to make a final decision on the route decision on Wednesday. Due to the great social significance, the issue of class limit was examined for the first time. The central question is: How many kilometers from an individual project should you measure nitrogen precipitation—which is of great importance for obtaining permits for all construction projects and livestock farms that emit nitrogen.
The cutting limit for individual projects was 5 kilometers until 2022, but the minister set it at 25 kilometers after a previous interim decision issued by the State Council. Environmental organizations are highly critical of the scientific basis for this 25-kilometre limit. They talk about a new pass-granting goat track, where all nitrogen outside the 25-kilometer limit is not taken into account. It was up to the State Council to assess whether the proof of the 25 kilometer limit, based in part on research by the RIVM and TNO, was strong enough.
The result can be best summed up as follows: You have to draw a line somewhere, and that line is the best available in today’s science, says environmental lawyer Rachid Benhadi. “The judge is actually saying that from a distance of 25 kilometers you can no longer say with enough certainty whether a particular nitrogen deposition originates from an individual project. With that uncertainty you cannot refuse a permit. With the current calculation form and the 25 kilometer limit, it is It is possible, and therefore it can be preserved.
Read also: Four projects show how penetrating the nitrogen crisis is in the Netherlands
surprising result
The fact that the State Council sided with the Council of Ministers came as a surprise to many lawyers. During the long and sometimes very technical process, the judges were advised by STAB, an administrative law advisory body on spatial planning and the environment. The experts mentioned in their advice that science does not specify a cut-off limit anywhere. According to them, the minister was not chosen to go 25 kilometers on the basis of a new scientific vision.
In advance, lawyers and other experts have also taken into account that the final ruling of the State Council can be made completely differently, and that the 25-kilometer limit can no longer be used. But the council thinks otherwise. The justices said Wednesday morning that the minister had placed a final stop on the basis of “the best scientific knowledge”. Therefore, the 25-kilometer cut-off is “acceptable”. In addition, similar cut-off limits are also used in neighboring countries – the distances are sometimes smaller.
The governors are aware that nitrogen does indeed fall more than 25 kilometers away, and point out to the government its responsibility to reduce the total amount of nitrogen in Dutch nature reserves. The government’s approach to nitrogen is currently in a political limbo. On Wednesday, there was an intense debate in the House of Representatives over whether or not to buy Peak lifters and whether nitrogen targets should be met in 2030 or 2035.
Prime Minister: Good news
The ruling is also an important boost for Cabinet, which already saw the construction exemption disappear in November – as a result of which nitrogen emissions in construction were not accounted for for the permit application. As a result, the construction of nearly 100,000 homes was significantly delayed. If the Aerius calculation model becomes unusable due to the disappearance of the cutting edge, this could have far-reaching consequences for the construction of homes and the construction of roads and bridges.
Therefore, Nitrogen Minister Christiane van der Waal (VVD) calls the interim ruling “good news”. But, according to the minister, “this does not mean that we got out of trouble right away.”
Environmental organizations mainly express disappointment. MOB, one of the objectors in the ViA15 case, says he finds the board’s decision “intriguing”. MOB Chairman Johan Fullenbrock says the pressure on the Cabinet to deal with peak loads has “only increased”.
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Read also: The Nitrogen ruling in the Porthos Affair impedes the great ambitions of the Cabinet
A version of this article also appeared in the April 6, 2023 newspaper
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