The Administrative Law Division of the Council of State today ruled on the Programme Approach to Nitrogen (hereafter: PAS). The PAS aims to allow economic development near nature areas with high nitrogen loads. In return, all kinds of management measures are being implemented that should have positive effects on those nature areas. The Division ruled today and asked preliminary questions about the PAS.
Exemption for operations below threshold levels
Under the PAS, projects or other actions that have a nitrogen deposition of less than the threshold value on a Natura 2000 site do not have to apply for a permit or be notified at all. The idea behind this is that all these projects together have such a small impact that, given the autonomous developments and the measures to be taken anyway, there will be no deterioration of the natural characteristics of these Natura 2000 areas.
In the May 17, 2017 ruling, the Division ruled that the state and province of North Brabant currently have not sufficiently demonstrated that all those projects (or other actions) that fall below that threshold, taken together, cannot affect the natural features of Natura 2000 areas.
The ruling does not yet mean that this exemption from permit and notification requirements cannot stand. Only if it cannot be demonstrated that the natural characteristics will not be affected, such a system (in which projects or other actions that remain below the threshold values are exempted from any prior assessment or notification obligation) cannot stand. The question now is whether that threshold value can still be substantiated with calculations.
Implications for the entire PAS
This uncertainty about the exempted projects and other actions also affects the projects subject to notification and permit requirements that are allowed under the PAS. If the exempted activities affect a Natura 2000 site while this has not been taken into account, it is highly questionable whether the conservation measures included in the PAS will have sufficient effect to absorb the nitrogen deposition that will increase as a result of all projects.
Prejudicial questions on Nitrogen Approach Program.
In its ruling, the Division also asked the Court of Justice of the European Union for an opinion on the systematics of the PAS.
What is striking is that the Division anticipates at length and makes it clear that, as far as it is concerned, the system of a programmatic approach would fit in with European regulations. Because it does not dare to state this with certainty on the basis of known case law and regulations, it still submits this to the Court of Justice for the sake of certainty.
The Section also asks the Court of Justice whether the conservation measures and appropriate measures included in the PAS may be included if, at the time of a specific project, they have not yet actually been implemented or effected. This is important because as a result of the project a (temporary) deterioration of the natural characteristics may occur while the positive effects of measures in that natural area have not yet been effectuated. The question is how this relates to the conservation objectives of those Natura 2000 areas.
Court to take action and homework for state and county
It is now up to the Court of Justice to rule on the acceptability of a system of a programmatic approach such as the PAS, under which no permit or notification requirement applies to certain projects and other projects may be authorized on the basis of a larger program of conservation measures. It will therefore take some time before there will be legal clarity on the sustainability of the 2015-2021 Nitrogen Approach Program.
However, the Division has already ruled that the State and the Province of North Brabant must guarantee with respect to these exempted projects that because of the autonomous developments and measures to be taken, no negative effects on natural areas can occur. Indeed, the available calculations based on the threshold, according to the province, are now not insightful. The question is whether the state can still offer that guarantee in such a system. To be continued, no doubt.
