Where do the (dark) nitrogen clouds stop?

The expiration of the construction exemption on November 2, 2022 ensures that an AERIUS calculation must again be made in the construction phase of every new construction project. This creates (again) delays and increased administrative burdens for (new) construction projects. When making these calculations, however, a new potential problem arises. To what distance from the source should nitrogen precipitation be calculated? And can such a calculation even be made? Those are two key questions that will be at the center of the ruling on the ViA15 and the update to the AERIUS Calculator, both expected in late January. Mink Oude Breuil writes about the future implications and solutions in this article.

25 km cut-off limit

Currently, nitrogen impacts from all types of sources must be mapped to 25 km from the source. This is also known as the "cut-off limit. Before this capping limit was introduced, nitrogen impacts from road traffic were capped at 5 km from the source. Nitrogen impacts from other sources (livestock farms, plants, etc.) were not truncated.

In a January 20, 2021 ruling on Tracébesluit ViA15, the cut-off limit of 5km was dropped. The AERIUS update at the end of 2021 subsequently introduced the current cut-off limit of 25 km. Earlier, I wrote here that the District Court of East Brabant was very critical of this cut-off limit and advised the government to already have a shadow version of the AERIUS Calculator ready on the shelf.[1]

Whether the government has taken that advice to heart remains to be seen. The discussion of the cut-off limit at 25 km could have major implications.

Substantiation 25 km cut-off limit questionable

In the ViA15 ruling of January 2021, the Division noted that a cut-off limit in a calculation program such as the AERIUS Calculator is only allowed under certain conditions. The calculation program must"allow full, precise and definitive findings and conclusions to be obtained that can remove any reasonable scientific doubt as to the impact of the planned work on the Natura 2000 sites concerned. [2] The Division further notes that it follows from the case law of the Court of Justice that it is essential that the effects of a project be accurately determined.[3]

5 km cut-off limit not meaningful?

In those proceedings, the Minister defended himself by arguing that depositions at distances greater than 5 km could no longer be "meaningfully traced" to the source. According to the Minister, a trade-off must be made between completeness and precision of the calculations. The Division is not convinced and argues that there must be a trade-off between the two. To the extent that that trade-off needs to be made at all because of "technical-scientific reasons," it must be substantiated."[5]

Substantiation requirements

Whether the Minister adequately substantiated the cut-off limit at the November 22 hearing, in the Division's view, cannot be said in advance. The outlook is not favorable for the Minister. It seems to me a very difficult task to substantiate that cut-off limit in accordance with the Division's requirements. To illustrate this, reference can be made to the findings in the final report "More Measurement More Robust Calculation" (p.15) of the advisory committee Measuring and Calculating Nitrogen:

"As for the role of deposition, roughly only 30% of the ammonia emitted is deposited at 20 km from the source. For nitrogen oxides, it is about 10%. At a distance of 250 kilometers, about 80% of ammonia is deposited and about 40% of nitrogen oxides. With these data in mind, a cutoff at 5 km for traffic emissions is not defensible, because most of the NH3 and NOx deposition occurs at greater distances.''

Same mistake Porthos?

In addition, the parliamentary documents [6] preceding the introduction of the capping limit show that, as with the construction exemption and the PAS, future measures were taken into account in advance:

"The project blanket of deposition contributions from these activities beyond 25 kilometers will, in an ecological sense, potentially make a significant contribution to the existing effects on nature due to nitrogen deposition and is part of the total depositions, for which the government is responsible to take measures necessary for the realization of the conservation objectives (art 6, first paragraph, Habitats Directive) and appropriate measures (preventive) to prevent deterioration of the quality of habitat types and habitats of species (art 6, second paragraph, Habitats Directive).
(...)
Therefore, as a result of the introduction of a distance limit of 25 kilometers as an additional safeguard to prevent (local) deterioration,the Cabinet considers it necessary to take additional appropriate measures in the form of additional source measures in the short term." - understr. MOB

As the Division clearly explained in the Porthos ruling, it follows from the case law of the European Court that a package of measures may only be used as substantiation if those measures have actually been implemented and the expected benefits thereof have been established. [7] Whether that has been sufficiently done for the cut-off limit will thus remain to be seen. In any case, a key advisor to the Division (the Administrative Law Advisory Foundation, STAB) did not think so.

Possible consequences negative ruling

If the Division rules in its ruling on the ViA15 route decision that the 25-km cut-off limit is insufficiently substantiated, the consequences will be greater than those of the cancellation of the building exemption. Permit granting will then come to a halt (again) because of the following.

Article 2.1 of the Nature Conservation Regulations mandates the use of the most recent version of the AERIUS Calculator when assessing projects that may cause nitrogen deposition. This is therefore when assessing a Wnb permit. However, because the latest version of the AERIUS Calculator provides for the cut-off limit, it may no longer be used. The mandatory prescribed method of assessment can therefore not be carried out, which also means that no Wnb permit can be granted.

Solutions?

If the Division declares Article 2.1 of the Nature Conservation Regulations to be non-binding after a preliminary examination, and the mandatory calculation method is therefore dropped, it will be possible to substantiate in other ways that there are no potentially significant nature effects. This offers opportunities, but also leads to challenges.

One opportunity lies in the fact that calculation models other than AERIUS may then be used. The OPS model used in AERIUS dates back to the 1980s and is hardly ever further developed in atmospheric science. There, for example, more consideration is given to so-called Eulerian models such as LOTOS-EUROS and the EMEP model.[8] It does not seem inconceivable to me that with the use of these models sufficient scientific certainty can also be obtained to exclude significant impacts.

Challenges?

The challenge for performing nitrogen calculations without AERIUS is finding personnel who specialize in these calculation models, atmospheric conditions and nature.

In most cases, the consequences of (possibly) dropping the cut-off limit will be limited for many smaller construction projects. However, new calculations will have to be submitted. If a small project within 25 km does not cause nitrogen deposition, the chance that there will be consequences outside that 25 km is also quite small.

Awaiting update?

As soon as the government's masters of calculation release a new update of the AERIUS Calculator in accordance with the (possible) new requirements set by the Division, initiators can do their homework all over again. If there is no longer a cut-off limit, there is a good chance that many medium and large projects will again run into major delays (and possible postponement). For infrastructure projects with large financial interests, it could be considered whether the Eulerian calculation models might offer an opening, or the so-called ADC test.

Another potentially positive aspect to the elimination of the capping limit is that existing "nitrogen rights" are also given greater scope. This space could be used for external offsetting. At the moment, however, this is still in the future: the competent authorities do not yet have a strong argument about the permissibility of external offsetting.

Does it still make sense to do a calculation now?

The answer to that question depends on the purpose of the calculation and what stage a new project is in.

Pre-stage calculation

If you make a calculation to assess at a preliminary stage whether a project is going to be feasible, it does make sense to make a calculation now. It is not clear what will happen to AERIUS if the Division rules that this calculation tool may not be used in its current form. If the tool is taken offline or down for a longer period of time, there will be no easily accessible way to gain insight into nitrogen effects. In addition, calculations made with the older AERIUS version can still contribute to the conclusion that significant effects can be excluded.

Calculation in permit application

If you are making a calculation only to attach to your (yet to be submitted) permit application, it is better to wait until early February to do so. This is because a new update of the AERIUS Calculator is scheduled for January 26, 2023. That annual update ensures that all nitrogen calculations must be reentered in the new version if the competent authority has not yet made a decision (see this post for more background).

The update of the AERIUS Calculator may also lead to problems because new calculation points (c.q. protected nature) are added. These new calculation points should actually already be involved in permit granting since November 25, 2022. BIJ12, a partnership of the provinces, has created a relatively easy-to-implement file with useful instructions that can be used to include these new calculation points in the current version. That file can also be used to supplement existing calculations.

Conclusion

It seems that the dark clouds of nitrogen extend beyond 25 km, making it questionable whether the current way nature consents are granted is legally tenable. Let us hope that the government has taken into account the possible elimination of the capping limit and has also built in a loophole in the latest update of the AERIUS Calculator on Jan. 26, 2023 that will allow the capping limit to be easily taken out. This will help avoid unnecessary downtime for almost every small project.

If after reading this blog you still have nitrogen related questions or would like advice on what to do next. Please feel free to contact us using the form below.

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[1] East Brabant District Court ECLI:NL:RBOBR:2022:1652 r.o. 10-10.4.

[2] ABRvS January 20, 2021, ECLI:NL:RVS:2021:105 r.o. 69.3

[3] ECJ 11 April 2013, ECLI:EU:C:2013:220 r.o. 44, and ECJ 24 November 2011, ECLI:EU:C:2011:768 r.o. 109.

[4] ABRvS January 20, 2021, ECLI:NL:RVS:2021:105 r.o. 69.5.

[5] Appendix to Parliamentary Papers II 2020/21, 35334, no. 158, p. 7.

[6] ABRvS November 2, 2022, ECLI:NL:RVS:2022:3159 r.o. 34.4.

[7] ABRvS November 2, 2022, ECLI:NL:RVS:2022:3159 r.o. 34.4.

[8] "More measurement, more robust calculation," June 15, 2020, Final Report of the Advisory Panel on Measuring and Calculating Nitrogen, p. 39.