On 25 February 2021, the Council for Permit Disputes pronounced the so-called 'nitrogen judgment'. In this ruling, the Council annulled the permit for the expansion of a poultry farm. It could not be shown that the additional nitrogen emissions resulting from this expansion would not have a negative impact on nearby natural areas. Although it only concerned the annulment of 1 permit, the judgment has major implications. Current article explains the meaning and scope of this judgment.
Approach to the nitrogen problem: protection of natural areas
There are numerous nature reserves in Flanders. Europe, among others, obliges us to protect and, if necessary, restore several nature reserves. To this end, several 'tests' were inscribed in the legislation.
The basis for assessing permit applications are these tests. Here, the impact of additional nitrogen emissions is one of the criteria. After all, nitrogen disturbs the natural balance within these areas. Below, we discuss the various tests in more detail.
1. Applications located within or near a special protection area (SPA): the appropriate assessment
Based on European legislation, certain areas have been designated as 'special protection areas' (SPAs). These areas are also called 'Natura 2000 areas'. The impact on these areas requires an 'appropriate assessment'. The criterion here is whether the project will lead to 'a significant deterioration of the natural characteristics of the SPA'.
2. Applications located within or close to a VEN area: the enhanced nature test
In addition to these European protected areas, Flanders has also outlined a 'Flemish Ecological Network' (VEN). It has done this by delineating so-called 'VEN areas'. These VEN areas often overlap with an SPA, but this need not always be the case. An 'enhanced nature assessment' must be drawn up for the impact on these VEN areas. This checks that the application does not lead to unavoidable and irreparable damage to nature.
Read more about challenging an environmental permit here.
3. The general duty of care
Finally, regardless of the location of a project, no avoidable damage to nature.
The applicable PAS framework and the Council for Permit Disputes' nitrogen ruling
To check the impact of additional nitrogen emissions as part of these nature tests, the Flemish government had developed the PAS framework. PAS stands for 'programmatic approach to nitrogen'. Using this framework, it was possible to check whether the additional emissions of nitrogen would not have a negative impact on nearby nature areas.
If a project met the thresholds provided for in this PAS, the impact of the project was assumed to be acceptable. This framework was mainly used to see if additional emissions associated with (an expansion of) agricultural activities were acceptable. The same framework applied to industrial activities. After all, agriculture and industry in particular lead to (additional) nitrogen emissions.
However, the Council for Permit Disputes now argues that this PAS framework has insufficient scientific basis. Mere compliance with this framework is thus not sufficient to judge that the impact of additional nitrogen emissions is acceptable. This therefore calls into question the granting of permits for farms and industry.
The implications of the nitrogen ruling: towards a complete licence freeze?
The PAS was (almost) exclusively used to grant permits to farms and industry. This insofar as they were located within or close to a SPA or VEN area. Consider, for example, the many chemical companies located within the Port of Antwerp. This borders several of these areas. Meeting the thresholds of the PAS framework is therefore no longer sufficient for these types of applications.
The Council for Permit Disputes does allow for other data to demonstrate that the impact of additional nitrogen emissions is acceptable. However, in the absence of any binding standards, this remains a difficult exercise. Indeed, the Council for Permit Disputes ruled that the opportunity that wildlife values are compromised is already sufficient to rule that the nature tests required by the legislation have not been met.
What about other sectors besides agriculture and industry?
Other major development projects near an SPA or VEN area that also involve additional nitrogen emissions (e.g. road construction, the construction of a shopping centre or a residential area) were not included in the annulled PAS framework. There will therefore not be a complete permit freeze as in the Netherlands. Indeed, in the Netherlands, the annulled PAS framework applied to all permit applications. However, this is not the case in Flanders.
No thresholds apply to these other sectors to date. This means that for each application, one has to prove again and again that it meets the various nature tests. However, the nature areas in Flanders are in poor condition. Thus, in general, there is little room for additional emissions in these areas. This puts every additional emission in the crosshairs. However small it may be.
Consequently, one will a project with additional emissions can only be authorised if it can be shown with certainty that these additional emissions have no impact on nature values. However, given the poor state of nature reserves in Flanders, this will be difficult to prove. Indeed, any additional emissions in the vicinity of an SPA or VEN area are sensitive given the ruling of the Council for Permit Disputes.
What can you do if an environmental permit is refused?
The impact of the nitrogen ruling on pending permit applications
To the extent that they involve additional nitrogen emissions near an SPA or VEN area, (almost) all applications based on the annulled PAS framework are currently refused. This with reference to the motivation included in the nitrogen ruling. This also applies to applications from before the nitrogen ruling, but where the decision came after it. Even permits for which the appeal period is still running can still be challenged on the basis of this ruling.
For applications within other sectors for which the PAS framework did not apply, a stricter justification obligation applies on the basis of the ruling. Indeed, clever lawyers can use the nitrogen ruling to have the impact of additional nitrogen emissions assessed more strictly.
Flemish government's preliminary agreement: licence freeze averted?
It is now up to the Flemish Government to adopt a new framework. Pending a final framework, the minister circulated temporary guidelines on 2 May. For instance, the directive sets the standard for additional emissions in agriculture at 0. For industry and transport, the standard stands at 1% of the total value of nitrogen that a nature area can handle. If an application exceeds these standards, it will have to justify that there is no negative effect on the surrounding nature. If it stays below these limits, special justification is not required.
For applications within other sectors, the Government did not set thresholds. In these sectors, therefore, the situation remains unchanged. For each application, one will have to demonstrate time and again that it meets the various nature tests. This without being able to fall back on standards under which it is assumed that there is no impact on nature.
Already now, however, questions arise as to whether this distinction between agriculture and industry and transport is justified. Nitrogen always remains nitrogen. Whether it comes from agriculture or from industry or transport. It is also uncertain whether these directives provide the necessary legal certainty. Indeed, questions can be raised about the scientific justification for the 1% standard for industry. Indeed, this lack of scientific substantiation was the reason why the Council annulled the previous PAS framework.
Finally, these guidelines are not binding regulations for the time being. You cannot equate a directive with legally prescribed nature tests. So the court may later rule that legally prescribed nature tests were not met after all, even if all the standards in the directive were met.
When will there be a new final assessment framework?
The intention is to have a new final framework by the end of 2021. Until then, the provisional guidelines cited above will remain in place.
Find more information on how to apply for an environmental permit here.
