The Dutch Nitrogen Action Programme (Dutch abbreviation “PAS”) contains promising solutions, but overall there are considerable doubts as to whether it meets the requirements of Article 6(2) and (3) of the EU’s Habitats Directive . That was the conclusion of Advocate General Juliane Kokott (“the AG”) for the Court of Justice of the European Union (“the Court”) in her Opinion (25 July 2018) in response to requests for a preliminary ruling.
The PAS… what was that all about?
The Netherlands introduced the PAS on 1 July 2015. It aims to maintain and restore nitrogen-sensitive Natura 2000 sites while still enabling/continuing economic development that leads to nitrogen deposition at those sites. In order to achieve these objectives, the PAS includes both site -directed measures (measures to reduce emissions from nitrogen sources such as pig farms) and site-specific restoration measures (hydrological and vegetation measures in addition to the regular management of Natura 2000 sites). It also controls the amount of nitrogen that can be emitted during the term covered by the programme, i.e. the maximum level of nitrogen deposition. The available “room for deposition” (the margin still available up to maximum nitrogen deposition) has been determined for each Natura 2000 site. Reductions in nitrogen deposition as a result of the site -directed and restoration measures will partly be used to expand this room for deposition. This is constantly monitored and adjusted where necessary. The PAS also aims to simplify the issuing of permits for activities that cause nitrogen deposition:
• projects and other operations which cause nitrogen deposition not exceeding a threshold value of 0.05 mol N/ha/yr are allowed without prior authorisation;
• projects and other operations which cause nitrogen deposition not exceeding a limit value of between 0.05 and 1 mol N/ha/yr are allowed without prior authorisation; in certain cases there is a duty to report;
• projects and other operations which cause nitrogen deposition over the limit value are subject to a permit requirement; The permit may be granted with reference to the appropriate assessment under the PAS where those projects and operations do not result in an increase of nitrogen deposition. If there is an increase in nitrogen deposition, the permit may be granted with reference to the PAS if room for deposition is allocated in respect of the increase in nitrogen deposition.
Background to requests for a preliminary ruling
Since the introduction of the PAS on 1 July 2015, there have been questions about the extent to which it complies with the requirements of Article 6 of the Habitats Directive. In a number of “pilot cases”, the Administrative Jurisdiction Division of the Council of State (the “Division”) submitted a large number of requests for a preliminary ruling to the Court on 17 July 2018 (ECLI:NL:RVS:2017:1259). These mainly concerned the following three aspects:
i. Is the granting of a permit to an (agricultural) undertaking whose nitrogen deposition in protected sites is not assessed individually but in accordance with the PAS compatible in principle with Article 6(3) of the Habitats Directive?
ii. To what extent can the PAS take account of the expected reduction in nitrogen emissions, of specific measures to reduce nitrogen emissions from other sources, and of (autonomous) measures to restore protected sites, particularly if they are not implemented until in the future?
iii. Are the limit values or threshold values set for nitrogen deposition and the consequent exemption of certain projects from the permit requirement compatible with Article 6(3) of the Habitats Directive?
In addition, specific questions were asked about grazing and use of fertilisers. Those questions will not be dealt with in this blog post.
Opinion of AG
The AG notes, first of all, that the use of a programmatic overall plan such as the PAS is to be welcomed, but that improvements are probably needed in its practical implementation.
i. Permits based on the PAS
Regarding the first point, the AG finds that Article 6(2) and (3) of the Habitats Directive basically permits an appropriate assessment for a programme in which a certain total amount of nitrogen deposition is assessed to be used as the basis for granting an individual authorisation and fits within the room for deposition assessed in the context of the programme. However, that assessment must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the deposition. This requires that it is ensured, for each individual project and any land within protected sites on which protected habitats are located, that the total authorised nitrogen deposition does not, in the long term, jeopardise the conservation of the habitat types and species protected in the site or the potential to establish a good conservation status. The AG questions whether this is the case for the PAS, but leaves it to the national court to decide.
ii. Consideration of measures unrelated to projects
Regarding the second point, the AG finds that measures to reduce nitrogen deposition from other sources, restoration measures to improve nitrogen-sensitive habitat types in the sites concerned, and the autonomous decrease in nitrogen emissions can establish the compatibility of additional nitrogen deposition in protected sites with Article 6(3) of the Habitats Directive only if it is already definitively established at the date of the authorisation that the total load on the site from nitrogen deposition falls below the threshold for the integrity of the site being adversely affected. On the other hand, it is not sufficient, for the purposes of approval of additional nitrogen deposition, if deposition declines overall, but the land in question is still overloaded with nitrogen. Mere forecasts regarding the future effects of those measures and the expected decrease in nitrogen emissions may not be taken into account in the decision on the approval of additional nitrogen deposition.
iii. Threshold values and limit values for nitrogen deposition and exemption from permit requirement
Regarding the third point, the AG finds that Article 6(2) and (3) of the Habitats Directive does not preclude legislation which exempts from the permit requirement projects and other operations causing nitrogen deposition which do not exceed a threshold value or a limit value, and are therefore permitted without individual approval. It is, however, required that there is no reasonable scientific doubt that there will be no significant effects in the protected site concerned as a result of that nitrogen deposition. Whether that is the case will, according to the AG, need to be decided by the national court.
Based on these interim conclusions, the AG’s final conclusion is that it appears that the PAS does include promising approaches, but there are significant doubts all in all that it meets the requirements of Article 6(2) and (3) of the Habitats Directive.
The AG’s considerations
According to the AG, the Habitats Directive is not opposed to the PAS in all respects, but the PAS may be better suited to the test in Article 6(4) of the Habitats Directive regarding alternatives, imperative reasons of overriding public interest, and compensatory measures. An integrated approach like the PAS allows these individual interests to be classified in the public interest in agricultural development and respect for acquired rights. According to the AG, an instrument like the PAS is also ideally suited to identifying what alternatives are actually available. Furthermore, the PAS has the long-term aim of reducing nitrogen deposition to an acceptable level and creating a good conservation status for the habitats concerned, which can be regarded as the implementation of the compensation element, provided that sufficient measures can be put in place.
The AG does find that application of Article 6(4) of the Habitats Directive could, however, be prevented by at least one obstacle. Where nitrogen deposition affects priority habitat types, the Netherlands should presumably have consulted the Commission. That has not (yet) been done.
The AG’s Opinion is intended to provide the Court with information, but the Court is not bound by the contents of her Opinion. Moreover, the Division – taking into account the judgment by the Court – still has to render its ruling. The earlier ruling by the Division and also this Opinion – quite apart from the PAS – also help to formulate more general ideas about how research should be carried out. We have already successfully advanced certain basic principles in proceedings pursuant to the Government Information (Public Access) Act [Wet openbaarheid van bestuur, “Wob”]. We will return to this in a future blog post.
We will continue to follow this case closely. Do not hesitate to contact us if you want advice on the (possible) consequences of this Opinion for your development or if you have any questions about nitrogen deposition as a result of your project.