The Netherlands was in an uproar when the Council of State ruled on May 29, 2019, that the Program Approach to Nitrogen (PAS) violated European law. The PAS provided that activities leading to a limited increase in nitrogen deposition in areas where the critical deposition value (KDW) was exceeded could be carried out without a nature permit. The Council of State concluded that the PAS did not provide the required security for nature conservation and restoration and nullified the PAS. Many businesses that had expanded with a PAS notification were therefore suddenly illegal and still had to apply for a permit. However, there was not enough nitrogen space for permitting, so developments around areas with nitrogen deposition above the KDW were effectively locked in.
The Minister of Agriculture, Nature and Food Quality presented the PAS Notification Legalization Program in February 2022. The legalization program should start allowing initiators who have submitted a PAS notification to still receive a nature permit.
Several requests for enforcement have since been made and several courts have ruled that something must be done because the situation is now illegal. The question, of course, is whether this program will solve those enforcement problems. As far as we are concerned, this is the case if it is established on the basis of the legalization program that the company will actually have access to nitrogen space in the foreseeable future.
What does the legalization program look like?
Source measures
By taking source measures, the state must see nitrogen space freed up. The Subsidy Scheme for Remediation of Pig Farms (Srv), the Provincial Scheme for Purchase of Livestock Farms near Natural Areas (Rpav) and the National Termination Scheme for Livestock Farm Sites (Lbv) will be used for this purpose.
The Srv entitles intensive pig farms to subsidies if they proceed with farm closure. This should create space in the Nitrogen Registration System (SSRS). Vacant space will be used primarily for residential development and seven major infrastructure projects.
The Rpav should reduce peak loads on Natura 2000 areas. Farms adjacent to a nitrogen-sensitive wildlife area can be bought up to free up nitrogen space.
Nitrogen space from the Srv will become available no later than mid-2022. For the Rpav, space from the scheme becomes available the second half of 2022, and from the Lbv, space becomes available in 2024.
Criteria
PAS notifiers are eligible for legalization if their project was subject to a notification requirement at the time and this notification was made. Further, the project must already be fully realized. If the project has not yet been fully implemented, the PAS notifier may still be eligible for the legalization program if project implementation has already begun, or if project has not yet begun but is already burdened with irreversible and significant investment obligations.
This contribution was written by the Government Practice Group.
