On 16 August 2023, the highest administrative court in the Netherlands gave it’s eagerly awaited final ruling in the Porthos case. The ruling brings happy tidings for the Porthos project and for Carbon Capture and Storage (CCS) in the Netherlands.
Background: nitrogen emissions in the construction phase
The Porthos project is the first CCS project in the Netherland. It aims to contribute to achieving (Dutch) CO2 reduction targets by storing industrial CO2 from port of Rotterdam area in empty gas fields under the North Sea. Several permits were issued for realisation of the project and a government-imposed zoning plan (inpassingsplan) was adopted.
The construction of the Porthos project causes nitrogen emissions. No nitrogen emissions will be caused during the operational phase of the project. The permits and the zoning plan originally relied on the construction exemption as a result of which the nitrogen effects caused by the construction could not be taken into account when assessing the effects of the project under the European Habitats Directive. In its 2 November Porthos ruling, the highest administrative court annulled construction exemption because it violates Article 6 of the European Habitats Directive. In an earlier blog, we explained this ruling and what it meant for project development in the Netherlands.
The consortium developing the Porthos project submitted an additional nitrogen assessment to the court during the appeal proceedings. This additional assessment is central to the final ruling.
It follows from this additional assessment that the use of equipment and ships during the two-year construction phase will cause nitrogen deposition on eight Natura 2000 areas (0.01-0.57 mol/ha/per year depending on the area). The effects of this temporary, additional deposition on the protected habitats in those eight Natura 2000 areas was assessed in a two-step analysis:
- The first step entailed a general analysis for the eight Natura 2000 areas and concluded that the limited additional deposition could not have a negative effect in reaching the conservation objectives of those sites.
- The second step entailed a further analysis of the effects on the protected habitats and species for each of the 8 Natura 2000 areas affected, in light of their current status and the conservation objectives for those habitats and species.
On this basis, the additional assessment concludes that it can be objectively determined that the Porthos project will not have any significant effects on Natura 2000 areas. The court held that the additional assessment complies with the European Habitats Directive and shows that the construction phase of the project will not have any significant effects on Natura 2000 areas.
Our main takeaways from the ruling are:
- The court held that the additional nitrogen assessment qualifies as an ecological assessment (voortoets) and not as an appropriate assessment (passende beoordeling). As a result, no nature permit is required for the project.
- The court confirmed earlier case law that the fact that a nitrogen sensitive habitat is already 'overloaded' with nitrogen (overschrijding kritische depositiewaarde) does not preclude the use of an ecological assessment (voortoets).
- The additional assessment showed on the basis of objective data that the project would not have significant effects on Natura 2000 areas.
- In light of the detailed nature of the additional nitrogen assessment, the court dismissed several general ecological arguments introduced by the appellant that did not specifically relate to the nitrogen effects of the Porthos project.
- The court confirmed earlier case law that positive effects of conservation measures and appropriate measures (instandhoudings- en passende maatregelen) and autonomous developments (autonome ontwikkelingen) can be included in an ecological assessment when determining the conservation status (staat van instandhouding) of a Natura 2000 area, provided that those measures and autonomous developments are certain as meant in the PAS ruling (ECLI:NL:RVS:2019:1603, paragraph 18).
- The fact that the temporary increase in nitrogen deposition resulting from the Porthos project does not lead to significant effects on Natura 2000 areas, does not create a precendent nor does it lead to a general threshold for projects with temporary and limited effects. Any new plan or project that leads to an increase in nitrogen deposition requires an individual assessment of the effects on Natura 2000 areas of any nitrogen deposition caused.
- Such individual assessment requires an ecological analysis of the nitrogen effects of a project in light of the specific environmental characteristics and conditions of the Natura 2000 areas concerned, even if the increase in nitrogen deposition is temporary and limited.
- This will involve examining the conservation objectives for and the current state of conservation of the relevant Natura 2000 areas and the specific habitats and a species for which the Natura 2000 areas were designated and that may be affected by nitrogen deposition. The nitrogen effects of a projects will then have to be ecologically assessed against that background.
- A more detailed takeaway from the ruling is that when determining the effects of nitrogen deposition on habitat quality, the quality of plant life (vegetatiekundige kwaliteit),presence of typical species (voorkomen van typische soorten), abiotic conditions (abiotische omstandigheden) and the structure and function for animal species (kenmerken van goede structuur en functie) have to be taken into account. This is in line with the methodology currently applied in Natura 2000 policy.
- The relatively new instrument of nature assessments of Natura 2000 areas (natuurdoelanalyses) prepared by the provinces can be used as a starting point in individual assessments.