The Council of State’s April 5, 2023 ruling on the ViA15 case was eagerly awaited. An important part of the case is the mathematical model used for nitrogen calculations. This model, AERIUS Calculator, was modified following an earlier ruling by the Council of State in the same case. Until that ruling(Jan. 20, 2021), nitrogen precipitation due to road traffic was “truncated” at 5 kilometers. This meant that nitrogen precipitation at greater distances was no longer attributed to the project in question. Nitrogen precipitation due to agriculture and industry, for example, was calculated in full (i.e., also outside the 5-km zone). After this ruling, it took several months for AERIUS to be updated. It was then chosen to limit nitrogen precipitation for all sources to a distance of 25 kilometers (the so-called “cut-off limit”).
What does the Council of State say now?
In its ruling today, the Council of State ruled that AERIUS Calculator is suitable for calculating nitrogen precipitation due to an individual project up to a distance of 25 kilometers. Beyond that distance, you can no longer reliably calculate what that contribution is. The 25-kilometer cutoff is therefore justified. The Council of State further says that for contributions beyond 25 kilometers, it is up to the government (not the project initiator) to take further measures to prevent further deterioration of nitrogen-sensitive areas.
Questions on ruling
With this approach, it remains unfairly unclear how justice is done to European rules on nature conservation. The European Court of Justice has explained in a series of rulings how individual projects should be handled when assessing negative impacts on nature. This must be project-specific and the impacts on nature, as well as measures to counteract those impacts, must be “fully, precisely and definitively” identified and assessed.
The point is not that that assessment for a distance up to 25 km can be done with AERIUS Calculator. It’s precisely about the effects beyond that. In effect, the Council of State says that impacts outside the 25 km zone need not be included in the assessment of the individual project because AERIUS Calculator does not “work” beyond that distance. This is exactly the opposite of what European rules require. A more logical verdict would have been that if AERIUS is not suitable for calculating nitrogen precipitation at a greater distance of 25 km, then you cannot use AERIUS for that purpose, and thus you have to substantiate the effects of nitrogen precipitation at a greater distance in some other way (e.g., with a project-specific appropriate assessment).
What do we think?
The ruling is remarkable and also unexpected. In our view, the ruling ignores European regulations for the protection of Natura 2000 sites. Because it follows from European court case law that the effects of nitrogen precipitation on Natura 2000 sites and measures to counteract them must be established in advance and assessed at the project level. That’s not happening now. At the very least, we believe it would have been prudent for the Council of State to ask preliminary questions of the European Court of Justice.
What are the implications of the ruling?
Projects that were in preparation can now move forward. Nitrogen calculations need not be repeated. Companies (think Schiphol) that had already bought up nitrogen space from farmers can move forward with their plans. Governments can also continue ongoing projects.
An unforeseen consequence of the ruling is that it becomes much more difficult to revoke nature permits that have already been granted. Indeed, the revocation of nature permits is not based on the individual farm’s contribution to total nitrogen deposition, but on the desire to reduce the total background nitrogen load. The contribution of an individual farm as a whole is usually calculated through AERIUS Calculator. It follows from today’s ruling that AERIUS Calculator can no longer be used for this purpose to support the need to revoke the nature permit. AERIUS Calculator can also no longer be used for the same reason when preparing provincial area programs to be adopted by July 1, 2023. Thus, a comprehensive ecological justification will have to be prepared when revoking a nature permit and establishing an area program.