The consequences of the (interlocutory) Porthos ruling for new and ongoing construction projects/activities in the Netherlands

Background nitrogen deposition issue

 Nitrogen deposition has been a significant issue in the Netherlands for a while. Many nature conservation areas are considered in such bad shape (the so-called critical deposition levels are (almost) reached), that additional nitrogen deposition by projects/activities is often not permitted without taking additional measures.

The previous regime for allowing projects/activities generating nitrogen deposition on nature conservation areas (i.e. the Integrated Approach to Nitrogen (Programmatische Aanpak Stikstof or PAS)) was annulled by the Council of State, the highest administrative court in the Netherlands, by a ruling of 29 May 2019. In its ruling, the Council of State deemed the PAS to be non-compliant with the European Directive 92/43/EEG (the Habitats Directive). In short, the PAS entailed a ‘nitrogen fund’ for projects causing nitrogen deposition and, therefore, a basis to grant a nature permit pursuant to the Nature Conservation Act (Wet natuurbescherming or NCA). Under the PAS, projects with a limited nitrogen deposition (i.e. > 0.05 mol/ha/year) were exempted from the nature permit obligation. With the Council of State’s 2019 ruling, the ‘nitrogen fund’ was annulled.

An important consequence of the annulment of the PAS was that activities with a limited expected nitrogen deposition could no longer rely on the aforementioned general exemption threshold. Therefore, it had to be established for each and every project whether or not it would adversely affect a nature conservation area. In practice, a simple assessment can be done with the so-called AERIUS calculator, which shows the nitrogen deposition of a project/activity on the respective nearby nature conservation areas.

If the AERIUS calculator confirms that the nitrogen deposition will be (rounded off) 0.00 mol/ha/year, no further assessment has to be carried out and no nature permit is required. However, if the outcome is > 0.00 mol/ha/year, the project/activity leads to an increase of nitrogen deposition on nature conservation areas. In that case the consequences of such an increase must be assessed. If that assessment indicates that significant negative effects cannot be ruled out in advance on the basis of objective data (i.e. a pre-test (voortoets)), then an appropriate (further) assessment (passende beoordeling) must be made. Conversely, this means that if a pre-test indicates that significant consequences can in fact be ruled out in advance, an appropriate (further) assessment and, therefore, a nature permit are not required.

If an appropriate assessment is necessary, it may include mitigation measures such as external netting (extern salderen). External netting entails that any increase in nitrogen deposition resulting from the project/activity can be set off against a decrease in nitrogen deposition (by ceasing activities that cause nitrogen) that can be directly attributed to the project/activity. The nature permit will only be granted if the appropriate assessment concludes that the nature conservation area’s natural characteristics will not be negatively impacted.

In addition, section 2.8 of the NCA states that a nature permit can be granted (even if the appropriate assessment cannot rule out significant adverse consequences on nature conservation areas), for plans or projects that are necessary for imperative reasons of major public interest and for which there are no alternative solutions. This so-called ‘ADC test’ is a complex process and the motivation and substantiation requirements are generally difficult to meet.

The need to individually assess the nitrogen deposition of all projects/activities, including building projects/activities with limited nitrogen depositions during a short period, led to huge backlogs at the competent authorities. This meant further delays in the housing construction target of the Dutch government. The Dutch legislator consequently came up with a ‘solution’ in the form of new legislation that entered into force on 1 July 2021.

Porthos ruling: construction exemption deemed in violation with EU law

Pursuant to this new legislation, any (temporary) nitrogen deposition resulting from construction activities (including demolition activities and activities which change the land use and transport movements) are exempted from a nitrogen deposition assessment. The reasoning for this was that these activities  only cause nitrogen deposition during a relatively short period. Based on the construction exemption, the respective nitrogen deposition is not be taken into account in determining whether a nature permit is required. It is relevant to note that the construction exemption never applied to the structural nitrogen deposition in the operational phase of the project. The construction exemption made it easier to grant environmental (building) permits for construction and infrastructure projects.

In the Porthos ruling of 2 November 2022, the Council of State ruled that the construction exemption does not comply with section 6 of the Habitats Directive.

The Council of State reasons that pursuant to case law of the European Court of Justice, permission for a project may only be given if research shows that it is certain that individual nature conservation areas will not be adversely affected due to the project/activity. Furthermore, the Counsel of State pointed out that it follows from the same European case law that a package of compensatory and source measures, as a ‘justification’ for causing more nitrogen deposition on nature conservation areas, can only be used if those measures have actually been implemented and the expected benefits thereof are certain. The Council of State decided that the package of measures that the Dutch legislature has used as substantiation for the construction exemption in the NCA does not meet this requirement. The vast majority of the measures (consisting of the actual reduction of nitrogen deposition sources, subsidies etc.) has not (yet) been implemented, let alone proven effective. Since the construction exemption could also be used for projects/activities that could have a significant negative effect on nature conservations areas, the construction exemption (and the underlying ‘generic’ measures) were deemed in violation with section 6 of the Habitats Directive.

Consequences of the Porthos ruling for new/ongoing construction projects/activities

The consequence of the Porthos ruling is that the construction exemption pursuant to the NCA is no longer valid. The Council of State emphasizes that this ruling does not entail a (temporary) halt to all construction activities. As was the case before the introduction of the construction exemption, it remains possible to carry out a pre-test to determine whether a nature permit is required. Please note that a nature permit may be required if ongoing construction activities lead to a nitrogen deposition of > 0.00 mol/ha/year on a nearby nature conservation area. Carrying out the nitrogen emitting (construction) activities without the required nature permit constitutes a breach of the NCA. Against such a breach, enforcement measures can be taken either upon request by an interested party (such as an environmental group) or on the competent authority’s own initiative. We expect that competent authorities will not pro-actively enforce pertaining to ongoing construction projects/activities. However, should an interested party request the competent authority to enforce, it is in principle obligated to do so.

We expect that especially new large construction and infrastructure projects may experience delays in obtaining the necessary permits. These large projects may not be able to suffice with a pre-test and therefore need to apply for a nature permit.

In order to further assess any non-compliance issues, we advise you to liaise with a technical advisor (for a pre-test) as soon as possible due to the expected demand for assistance.

Should you have any questions pertaining to the impact of the Porthos ruling on your project/activities, please feel free to reach out to us.

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