Nitrogen in Flanders | Will the dust finally settle?
27/03/23
Flanders is in the middle of a nitrogen crisis. A similar crisis is occurring in the Netherlands. This might sound strange as nitrogen (N2) is, at first sight, quite harmless. It is a colorless and odorless gas that is all around us. About 78% of all air consists of nitrogen. You might think we have bigger fish to fry with global greenhouse gas emissions likely to rise to record levels in 2023. Nitrogen in itself is not harmful to humans and the environment.
However, if you take a closer look, the nitrogen crisis may be an interesting case study for the challenges of climate change, as it holds the same difficulties: (i) a multitude of causes, (ii) damage that is not immediately tangible but sets in slowly but surely, (iii) no one identifiable perpetrator, but a small group of actors that cause the most burdensome emissions and (iv) an urgent need for radical change.
Nitrogen effects in a nutshell
Nitrogen particles can bind to oxygen and hydrogen particles. This creates new substances: nitrogen oxides and ammoniacal nitrogen. These substances are called ‘reactive nitrogen’. Ammoniacal nitrogen comes mainly from agriculture and is the most harmful to nature. Nitrogen oxides mainly enter the air through the exhaust fumes of cars, airplanes and factories.
The atmospheric spread of reactive nitrogen depends on the type of source, the weather conditions and environmental factors, such as land use. Once in the atmosphere, the nitrogen gasses are diluted and can react with each other and with other gasses to form particulate matter, which can travel greater distances.
An excess of nitrogen affects the entire biodiversity chain. Too much nitrogen or prolonged nitrogen deposition leads to the over-fertilization of nature. Some plant species grow at the expense of other species and nitrogen (nitrate) leaches into the groundwater. The soil also acidifies in the natural system; valuable nutrients, such as calcium, magnesium and potassium, are displaced and washed away. Aluminum is released which, in excess, is toxic to plants and animals.
Ultimately, an excess of nitrogen in the atmosphere can lead to eutrophication and acidification which disturbs the soil, vegetation and fauna in nature reserves. Nutrient-poor ecosystems are particularly sensitive to this. Vulnerable species are disappearing and the conservation of natural habitats and species designated in the context of Natura 2000 is becoming more difficult. And this is where it gets legal!
The habitat issue of the low countries
Natura 2000 is a network of sites selected to ensure the long-term survival of Europe’s most valuable and threatened species and habitats. In Flanders, a total of 62 sites have been designated as Special Protection Areas (SPAs). These areas account for about 12% of the Flemish territory.
All EU member states must define their Natura 2000 network. Once a site becomes part of the network, Member States must take the necessary conservation measures for the maintenance or restoration of the site at a ‘favorable conservation status’. This status indicates a situation in which a habitat or species is thriving throughout its natural range and is expected to continue to thrive in the future.
Reactive nitrogen depositions in these SPAs represent a major threat to the favorable conservation status of the Natura 2000 areas. The presence of these depositions means that the Flemish Region does not fulfill its conservation obligations under the Habitats Directive.
As we live in densely populated areas in Flanders (just like in the Netherlands), agricultural, industrial and/or other nitrogen-generating activities take place very close to these Natura 2000 areas. This is nothing new and the effects of reactive nitrogen have been known for a long time. However, in 2018, the assessment framework with which the Flemish government tried to regulate nitrogen depositions in Natura 2000 areas – the programmatic approach to tackling nitrogen deposition (the ‘Programmatische Aanpak Stikstof’ or ‘PAS’) – came under pressure following a judgment of the Court of Justice.
On 25 February 2021, the Council for Permit Disputes found the programmatic approach unlawful in that it does not comply with Article 6 of the Habitats Directive. Since this judgment, the obtention of an environmental permit for any activity that emits nitrogen close to a Natura 2000 area has become uncertain.
The Flemish government is now trying to reach an agreement with economic operators in which Flanders’ nitrogen emissions are drastically limited. It also wants to set up a workable assessment framework for permits, to provide legal certainty for economic operators in these areas, to prevent a permit freeze and to be in line with its EU obligations.
Furthermore, the way in which Flanders tackles the nitrogen problem matters as this will affect the level of funding it will receive for agriculture under the EU common agricultural policy (CAP). At the end of last year, the EU Commission approved the CAP Strategic Plans of Belgium, which includes €1.3 billion EU funding for Flanders for the 2023-27 period.
The Flemish Ecological Network
In addition to the nature reserves specifically protected by the EU, Flanders has also established a regional Flemish ecological network (the ‘Vlaams Ecologisch Netwerk’ or ‘VEN’). These VEN areas consist of a selection of the most valuable and sensitive nature areas in Flanders.
Some SPAs are part of the VEN. However, they are subject to different legal treatment. The VEN areas are subject to a strictened nature assessment introduced by the Flemish region. If a permit is sought for an activity, inside or outside the VEN, the permit for activities will not be granted if the activity may cause unavoidable and irreparable damage to nature in the VEN, unless there are compelling reasons of major public interest (Article 26bis, § 3 of the Nature Decree).
An additional issue for the VEN areas is that there are no clear conservation objectives such as the favorable conservation status of the SPAs. The VEN areas are to be conserved, however, there is no status that counts as a benchmark against which this conservation can be measured.
The ‘nitrogen agreement’
On 23 February 2022, the Flemish government finally reached an agreement. This agreement focused exclusively on the agricultural sector since agriculture, and more specifically, intensive livestock farming, is responsible for a large proportion of the reactive nitrogen in the air. Moreover, ammoniacal nitrogen from agriculture is considered to have a worse effect on soil acidification and the fertilization of nature than nitrogen oxides from industry and traffic.
The agreement contained drastic measures such as shutting down the 58 most polluting livestock farms and the two most polluting fertilizer processors and achieving a livestock reduction of 30% in the pig sector by 2030. These measures aroused a great deal of opposition from the agricultural sector, which traditionally has a strong lobby in Flanders. The Christian Democrat party, who presented themselves as the representatives of the agricultural sector, subsequently reneged on the agreement, leaving the Flemish government in a stalemate.
One year later, on 10 March 2023, the Flemish government reached a new agreement. The drastic measures of the earlier agreement will be retained. The aim is to cut nitrogen depositions in our valuable natural environment in half by 2030. Additional research is to be conducted on (i) how to make the permit requirements fair for agriculture and industry and (ii) the possibility of passing on emission rights. From 2025, these permit rules could be loosened again. It is expected that the implementation of the agreement will nevertheless be challenged before the Constitutional Court.
Permit practice
The nitrogen impact of socio-economic activities near nature reserves (SPAs and VENs) is assessed in Flanders through the environmental permit procedure.
The VEN areas are subject to the aforementioned strictened nature assessment. The Natura 2000 areas are subject to the assessment prescribed in Article 6(3) of the Habitats Directive and Article 36ter, § 3 of the Nature Decree, which in practice is split into two phases.
The preliminary assessment (‘voortoets’) is the first step in the application of the habitat test. The pre-assessment acts as a kind of funnel that should allow the applicant to identify those projects or activities for which an appropriate assessment is required. As part of the pre-assessment, the question arises as to whether the project is likely to have significant effects on a Special Protection Area. If there is a risk of such an impairment, an appropriate assessment (‘passende beoordeling’) must be drafted to identify the effects of the activity to be permitted on the nature reserve.
Since 2014, Flanders has based its permit policy on the programmatic approach to tackling nitrogen deposition (PAS) that aims to fairly distribute the proposed nitrogen reduction across these sectors. The PAS framework stipulated, among other things, that if a project makes a contribution of less than 5% to the critical deposition value of a habitat (to be determined via the preliminary assessment), no appropriate assessment needs to be submitted.
The PAS was provisional, pending a final assessment framework. However, the final framework was continually delayed. In 2021, the provisional PAS was found unlawful by the Court of Justice and the Council for Permit Disputes and we therefore found ourselves in the midst of a nitrogen crisis.
In the short term, the Flemish government’s nitrogen agreement aims to implement a final PAS framework that is legally robust and based on scientific fact. The final framework will be issued by decree. Until its adoption, transitional measures apply to permit applications. A circular is currently being prepared by the Flemish government to manage these transitional measures.
What now?
The agricultural sector feels targeted by the Flemish government in its measures to handle the nitrogen crisis. Nevertheless, as the largest source of nitrogen emissions, it is inevitable that drastic action will be required from the agriculture and livestock sector.
It is, however, rather regrettable that the Flemish government has not taken a more holistic approach to tackling the nitrogen problem. It would be untenable if the agricultural sector were the only sector to have to take measures. In light of relevant case law from the Court of Justice, it is highly likely that the construction sector will also have to take certain measures. In the Netherlands, the Dutch Council of State has found the building exemption – an exception according to which nitrogen emissions from certain construction activities did not have to be taken into account when granting a building permit – to be in conflict with article 6 of the Habitats Directive.
Moreover, reactive nitrogen is not only bad for biodiversity, but also for human health. In the short term, high concentrations of nitrogen dioxide in people with respiratory disease can lead to more irritated and inflamed airways, shortness of breath, severe coughing and severe asthma attacks. In the longer term, nitrogen dioxide reduces lung function and stimulates the development of asthma. Thus, the nitrogen debate could have prompted a more ambitious policy to reduce air pollution.
We assume that the Flemish government is taking a step-by-step approach. Nonetheless, it is disturbing that the first step of that approach has already led it into a crisis. This does not bode well for the future measures that the Flemish government will need to implement to tackle the challenges of air pollution and climate change.
If you want future-proof advice for your real estate project, its nitrogen impact and permissibility, don't hesitate to contact us.
