Plug-in Overijssel option for other PAS detectors

It is not possible to suspend enforcement for all PAS reporters, but the State Attorney does see opportunities for the approach Overijssel has chosen. Measures must then be taken to ensure a proper nitrogen reduction and improvement of the quality of the natural values, so that it can be demonstrated 'that the management of the PAS notifier can be continued for some time without a nature permit'.

In the meantime, the cabinet is also setting up an independent committee for claims for damages from PAS reporters who are faced with enforcement.

Van der Wal will also talk to the financial sector about the possibilities for PAS reporters to obtain financing to purchase nitrogen space. It is possible in some cases to issue a guarantee, although state aid may be involved. 

Of 2.488 PAS reporters, seven PAS reporters now have a definitive permit and 28 reporters are legal on the basis of internal netting, the minister states in a letter to parliament about the latest advice she has asked law firm Pels Rijcken about the PAS reporters.

In special cases, it is possible to waive enforcement, says the state attorney. In that case, there must be a concrete view of legalization or the enforcement action is disproportionate to the purpose it serves. There is no prospect of legalization, since there is not yet a nitrogen room available for most PAS detectors and therefore no permit application can be submitted yet.

As far as the second point is concerned, the question is whether the enforcement action is in proportion to the objective. The State Attorney believes that the PAS reporters are viewed differently if the result is, for example, bankruptcy, because the PAS reporters have acted in good faith. Whether or not action is taken, however, depends on whether it can be demonstrated that the interest of nature, the protection of the designated nitrogen-sensitive natural values ​​in Natura 2000 areas, 'clearly carries much less weight' than the interest of a PAS reporter. 

That is difficult, says the state lawyer. "Not only because the natural values ​​are protected under the European Habitats Directive and Birds Directive, and enforcement of Union law must be effective and deterrent, among other things, but also in light of the (extremely) overburdened state in which many designated natural values ​​are located." Court rulings also show that this is the biggest stumbling block.

Ecological substantiation
In individual cases, an ecological substantiation can show that nature is not or hardly affected by the nitrogen deposition of the PAS detector in question. There is also a 'broader possibility to waive enforcement'. It must then be made clear that measures are being taken that ensure a proper nitrogen reduction and improvement of the quality of the natural values, so that it can be demonstrated that the management of the PAS reporter can continue for some time without a nature permit. "In addition, the more measures have actually been taken for the natural values ​​involved and will be taken with certainty in the near future, the greater the chance that enforcement can be successfully waived."

In addition, according to the State Attorney, it could also be a measure in the short term to (temporarily) mitigate the nitrogen deposition of the PAS reporter in a de facto sense by terminating nitrogen deposition elsewhere, for example by buying up nitrogen space. If legalization by means of a permit is not (yet) possible, it could then be argued that although there is a violation, the interests of nature do not stand in the way of waiving enforcement.

"This is the approach that the province of Overijssel has recently chosen by introducing a ban on fertilization on its own agricultural land for the year 2023, in order to create nitrogen space for PAS reporters," said the State Attorney.

The more concrete measures are implemented for the benefit of nature, the greater the chance that a decision to refrain from enforcement action will be upheld in court.

Linda van Eekeres

Linda van Eekeres is co-writing editor-in-chief. She mainly focuses on macro-economic developments and the influence of politics on the agricultural sector.

l.vaneekeres@boerenbusiness. Nl

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