Draft nitrogen decree met with criticism by the Council of State
04 Oct 2023
As mentioned in our update on the nitrogen crisis this summer, the N-VA and Open VLD submitted a draft nitrogen decree to the Flemish Parliament on 27 July 2023. At the time, the proposal put a provisional end to the bickering in the Flemish government over the nitrogen approach.
The advice of the Council of State – requested by the Flemish Parliament on 2 August 2023 – was anxiously and quietly awaited by Flemish politicians and those who follow up on the matter. Now the opinion has arrived, and it is particularly critical.
In this newsflash, we give a brief overview of the main takeaways of the draft and the key criticisms.
1. The draft of the nitrogen decree
General reduction targets
The aim of the draft of the nitrogen decree (hereafter referred to as 'the decree') is to contribute to the conservation objectives for European protected nature by structurally and systematically reducing the impact of nitrogen deposition on special protection areas designated in the Habitats Directive (the Habitat areas). To achieve this objective, the decree states that ammonia and NOx emissions must be reduced to 40.3% (NH3) and 45.0% (NOx) respectively.
To achieve these emission reductions, the decree sets the following targets, to be achieved by 31 December 2030 (and calculated as compared to the situation in reference year 2015):
a 30% reduction of the size of the pig stock in Flanders;
a 60% reduction of ammonia emissions for pigs and poultry in non-AEA stables;
a 15% reduction of NH3 for cattle farms (for the meat and dairy cattle subsector) and a 20% reduction of NH3 for the cattle fattening subsector;
a 30% reduction in ammonia emissions by manure processing plants.
In conjunction with these objectives, habitat areas should be brought under appropriate management by 31 December 2030, with nitrogen remediation measures at the plot scale.
Impact scores
The eligibility of a project – whether it is an agricultural, industrial or even a traffic generating project – will be dependent on an impact score. The impact score of a project is the percentage ratio of the nitrogen deposition of a project compared to the ‘critical deposition value’ of the protected habitats in the ‘assessment zone’ of the project.
The assessment zone of a project includes all the habitats to be protected in Europe within a radius of 20 kilometres from the emission source. The impact score determines, among other things, whether it is necessary to make an appropriate assessment for a project, or whether a preliminary test is sufficient. The decree works with thresholds against which impact scores are tested (see below).
Targets to be achieved by the livestock farming and manure processing sector
A later chapter of the decree contains several measures with a direct impact on livestock farms and manure processing plants. By 31 December 2030, the following targets must be achieved by applying ammonia-reducing measures or by reducing the number of animal units (‘dierplaatsen’) and related establishments, activities or appurtenances, or a combination of both:
pig or poultry farms must achieve a 60% ammonia emission reduction compared to the ammonia emissions situation in the 2021 reference year originating from animals kept in non-AEA barns;
cattle farms must ensure that ammonia emissions from beef cattle do not increase, that emissions from dairy cattle are reduced by 25% and that emissions from fattening cattle are reduced by 28%;
manure processing installations permitted before the date of entry into force of this decree must reduce the total ammonia emissions by 30% compared to the total ammonia emissions in 2015.
An important part of the decree concerns the provisions on Peak Emitters (‘piekbelasters’). If an establishment’s impact score exceeds 50%, it is classified as a Peak Emitter. Peak Emitters must cease their establishment in full at the time their permit expires and no later than 31 December 2030.
Assessment frameworks for environmental permit practice
The decree also contains the long-awaited assessment frameworks for environmental permit practice. These frameworks are based on the previous practice of the Programmatic Approach to Nitrogen (PAS).
The following assessment frameworks have been identified:
an assessment framework for stationary sources of nitrogen oxides
an assessment framework for nitrogen oxides caused by traffic resulting from mobility-related projects
an assessment framework for ammonia from livestock farms and manure treatment plants
Each framework has a threshold. If the impact score of a project exceeds this threshold, an appropriate assessment must be performed. However, projects that fall below the threshold are exempt. The threshold is significantly lower for livestock farms and manure treatment plants.
2. The advice of the Council of State
On 2 October 2023, the ‘Legislation’ department of the Council of State issued a critical opinion on the decree. Their criticism focuses on the following main points:
The understandability and transparency of the decree itself as well as the insufficient transparency of the impact score, which plays a central role;
The programmatic approach and the use of thresholds in the assessment frameworks for the environmental permit practice which are considered incompatible with Article 6 of the European Habitats Directive, as interpreted by the EU Court of Justice. Article 6 is a key provision of the Habitats Directive, as it sets out the framework for site conservation and protection, including proactive, preventive and procedural requirements;
The fact that the decree currently has no adequate justification for a number of unequal treatments introduced by the proposed scheme. The constitutional principle requires that, if unequal treatment is introduced, there must be adequate justification for this treatment.
A number of problems regarding the delegations of the decree.
Following the publication of the Council’s opinion, the Flemish government held a crisis meeting on 3 October 2023. The government decided to have the Council's advice examined by external legal experts, who will also be tasked with developing solutions. Their proposals will subsequently be discussed by a mixed group of government representatives and parliamentarians to find a solution on which all sides can agree.
If you want future-proof advice for your real estate project, its nitrogen impact and permissibility, don’t hesitate to contact us.
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