Five years on, still PAS in place

The aftermath of the collapse of the Program Approach to Nitrogen (PAS) in 2019 continues five years later. This is evident from a May 15, 2024 ruling by the Administrative Law Division of the Council of State. In it, the question was whether enforcement action should be taken against a biomass power plant licensed under the PAS. The Division ruled that its operation indeed requires a nature permit, which, however, is lacking. Enforcement action is then required in principle. This is unfortunate, because the biomass plant was licensed in full compliance with the rules at the time. However, the PAS ruling means that, in retrospect, a nature permit for nitrogen is still necessary, the Division ruled.

What was the Nitrogen Action Programme (PAS)?

The PAS aimed to provide measures to substantially reduce existing nitrogen deposition throughout the Netherlands. This reduction meant that projects causing only a limited increase in nitrogen deposition (i.e., up to 1 mole per hectare per year) could be exempted from a nature permit. A single (PAS) notification would suffice. Below the line the would still be a decrease, was the thought.

How does the Administrative Law Division rule now?

Nature permission not needed then

When assessing application for the environmental permits for the biomass plant in 2017, a nature consent was not necessary due to the general exemption. If such permission had been necessary, the Municipal Executive (the municipality) should have concluded when assessing the application. Then the so-called "hook-up requirement" would apply, whereby the municipality would ask the college of the deputy states (the province) for that nature permission (in the form of a "declaration of no objections"). If the province grants that nature permission, it becomes part of the environmental permits to be granted.

Permits irrevocable

The biomass plant therefore argues in these proceedings that, when the permits were granted, judgment was already given as to whether there was a need for a nature permit. Because these permits are irrevocable and have been given formal legal force, it has been established in law that no nature permission is necessary and therefore there is no violation. Such reasoning has been approved by the Division before.

Department: permits are not a judgment on nature consent

The Division considers that in both permit applications, the municipality did not assess or decide on a nature permit. Nor was an assessment possible, because the Nature Protection Decree in force at the time required that, when granting a nature permit, the competent authority not consider nitrogen depositions that do not exceed the applicable limit. Nor can the response to the mandatory PAS notification be considered an assessment of the need for a nature permit.

Enforcement action?

Because the PAS has since been nullified, the exemption contained therein no longer applies and the obligation to have a nature permit revives. This is lacking, so the operation of the biomass plant is unlawful to this extent and enforcement action must be taken against it. The Division has ruled in other cases involving PAS notifiers that enforcement action may be disproportionate under circumstances. However, this must include not only the interest of the violator, but also of nature. However, the province (which is the competent authority here) had not yet done so and will therefore still have to do so.

And now?

In the rulings on the waiver of enforcement action against PAS reporters, the Division seems to allow only the temporary waiver of enforcement. After all, the government has promised measures to at least compensate for the nitrogen deposition of PAS reporters, allowing them to be legalized. Taking enforcement action pending those measures is disproportionate. But whether those measures are sufficient and whether they will be taken at all with the new administration is unclear. So PAS on new goat trails, or we will only sink further into the nitrogen driving sand.