An update on Nitrogen
08/08/23
In March this year we published a newsflash on the nitrogen crisis in Flanders. At the time, the Flemish government had finally reached an agreement on how to tackle the issue. Last month, the agreement was once again pushed back when the Flemish Minister Zuhal Demir unilaterally launched a new ministerial instruction and, to top it all off, the Council of Permit Disputes (‘de Raad voor Vergunningsbetwistingen’) annulled the environmental permit for the Ineos ethane cracker because of its nitrogen emissions.
Time for an update.
A timeline
July 2023 was a tumultuous month for the nitrogen issue. Here are the main events:
At the Flemish government's council of ministers on 14 July 2023, there was a new clash over the study on the environmental effects of the nitrogen agreement – the government could not come to an agreement on the text to turn the nitrogen agreement of March 2023 into a decree.
On 17 July 2023, Minister Zuhal Demir unilaterally launched a new ministerial instruction that replaced in full the instruction of 2 May 2021 and the related guidelines.
A few days later, on 20 July 2023, the Council for Permit Disputes published a judgment annulling the environmental permit granted for the Ineos ethane cracker at the port of Antwerp. In its ruling, the Council found that the Flemish government had not carefully assessed why the additional nitrogen deposition is not harmful to the nature of the Natura 2000 reserve, the Brabantse Wal, just over the border in the Netherlands. The Council therefore considered that the requirement to carry out an appropriate assessment (‘passende beoordeling’) as part of the permit application had not been met. According to the judgment, the assessment does not meet the requirements of the EU Court of Justice as it does not adequately take into account the conservation objectives of the nature reserve.
On 25 July 2023, the Council of State issued a negative opinion on the Flemish Government’s temporary nitrogen assessment framework. The Council's legislative department declared that the framework, pending the nitrogen decree, was not very accurate, because, for example, it repeatedly refers to texts that have not been published.
The group leaders of N-VA and Open VLD submitted a draft of the nitrogen decree to the Flemish Parliament on 27 July 2023 with no input from the other ruling party, the CD&V. The CD&V refused to co-sponsor the decree, sticking to its demands for an additional study on the environmental effects, but it also did not oppose its coalition partners’ démarche. On the same day, the ministerial instruction of 17 July 2023 was revoked.
Less than half a year after there appeared to be a way out of the crisis, the nitrogen file is once again the hot topic dividing opinions all the way up to the Flemish government.
The current situation
The crisis in the Flemish Government and the judgment of the Council for Permit Disputes once again highlights the legal uncertainty surrounding nitrogen emissions in permit practice. Tempers are all the more tense because the Ineos case involves an industrial project of enormous economic importance.
For current and future projects, there are some important lessons to be learned from the Ineos judgment:
Merely testing additional depositions against threshold values, without a concrete investigation of the potential impairment to the natural values concerned, is not sufficient. An investigation into the additional deposition and the concrete circumstances of the case is always necessary.
An appropriate assessment must provide insight into the consequences of the calculated and modeled increases in nitrogen depositions, taking into account the conservation objectives for the Natura 2000 site. Based on the assessment, it must be clear that the deposition increase does not affect the natural values of the nature reserve. Here, too, it is not enough to simply check the thresholds, the assessment must contain a concrete and ecological approach.
- Nonetheless, the Council does offer some hope stating that it is not because a project causes additional nitrogen deposition on protected habitat types for which the critical deposition value has already been exceeded that this necessarily means the project would therefore not be admissible.
Legal experts now seem to agree on the fact that (i) a decretal framework is urgently needed and (ii) that the current threshold values seem to have been definitively written off. In the meantime, an impact assessment on natural values in concreto is always required as part of a permit application for all projects near Natura 2000 sites.
If you want future-proof advice for your real estate project, its nitrogen impact and permissibility, don’t hesitate to contact us.
