Lawyers foresee construction stop after summer due to expected nitrogen ruling


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  • Barbara Terlingen

    editor Politics

  • Barbara Terlingen

    editor Politics

The problems with nitrogen can become even greater after the summer. Lawyers with whom the NOS spoke fear that the Council of State will issue a new ruling, which could halt construction projects on a large scale.

Construction has already largely come to a standstill, after the Council of State had wiped the floor with the Dutch nitrogen policy in 2019. Gradually, other ways were found to allow projects to continue. One of these is the construction exemption, in which temporary nitrogen emissions during construction are not included and when permits are granted, emissions are only considered when the building is in use. The question is how long that can go on.

The Council of State is now considering the Porthos project in the port of Rotterdam. The ruling was expected around this time, but has been postponed to October, a spokesman for the highest administrative court confirmed.

Porthos is intended to transport CO2 from industry in the port of Rotterdam and to store it in empty gas fields under the North Sea. This should contribute to achieving the climate goals, but nitrogen is released during the construction of the infrastructure. If the Council of State rejects Porthos’ exemption, this could have major consequences for other projects.

Exemption can fall

When the ‘exemption route’ came into use after the ruling in 2019, the Council of State was already critical. The Netherlands Environmental Assessment Agency, an important adviser to the cabinet, also wrote last year that it is highly questionable whether “splitting nitrogen emissions during construction and during the use phase” is permitted under European law.

“This split is at odds with established case law of the Council of State, which shows that you have to look at the inextricable whole. If only for that reason alone, the exemption will probably fail,” says assistant professor of environmental law Ralph Frins. Other lawyers also think it is heading in that direction.

Mink Oude Breuil, environmental lawyer: “I have noticed that judges are critical of the construction exemption. The government will have to come up with a good substantiation to prevent construction from coming to a standstill again”. In recent court decisions, lawyer Marieke Kaajan sees that the rules for protecting Natura 2000 areas stand in the way of new or even existing activities.

According to the lawyers, there is still a “little goat path” for the cabinet: if it can make it plausible that projects contribute to nature improvement.

If the exemption is broken, projects will have to have separate nitrogen calculations made. That takes a lot of time and there is a lack of people who can make the calculations. Once a calculation has been completed, negotiations still have to take place with governments and ‘nitrogen space’ must be found, ie space to be allowed to emit nitrogen.

Options for this are the so-called internal and external netting. With internal netting, you may, for example, create nitrogen space within the project itself by installing low-emission techniques. With external netting, the nitrogen space of, for example, a discontinued company is purchased at another location in order to realize a project. The latter is becoming increasingly complicated and several provinces have now banned it.

Nitrogen is one of the problems that stands in the way of building houses quickly. Watch this video about housing construction in the Netherlands:

100,000 more houses every year, is that possible?

For the Rotterdam port project, Utrecht professor Chris Backes thinks that an article from the Vogel and Habitat guideline may offer a solution. Due to compelling circumstances, for example that something is really necessary for the climate, you can appeal to this and ask for an exception. This will be more difficult for homes, he admits.

He still wants to lose something. “We are now pretending that the judge is the problem. In the end, that is not the case. Nothing has been done to reduce emissions for years. good.”