Undoubtedly, there was a party at the Vollenbroek house last Wednesday night until late at night. The action of ringing the bell at the Council of State was once again a brilliant success. The council has outdone itself. The rug has been roughly pulled out from under a large part of the legal certainty that was left after the PAS ruling of May 2019.
This happened through two rulings by the Council of State, regarding internal balancing at the amer power station en Rendac, initiated by MOB, the Leefmilieu association and the Brabant Environmental Federation. Because it concerns internal balancing, possibly also external balancing (that is not yet clear) and affects almost all nature permits issued since 2019/20, it also hits agriculture hard, as well as industry and mobility.
Judge makes debate unnecessary
However, the impact of the ruling took some time to sink in. This became apparent a day later, for example, when the Lower House of Parliament a debate about manure and nitrogen. The Members of Parliament could have saved themselves many of the spoken texts and submitted motions with a more up-to-date knowledge of the matter.
Consequences of the ruling of the Council of State last Wednesday include that 'positive refusals' are off the table, that unused latent space can also be crossed out and that nature permits that have been issued still require an 'appropriate assessment' in some form. The explanation of additionality also leads to available nitrogen space being given even more priority to nature. In any case, it means work for all kinds of consultancy firms again.
PAS reporters back to square one
The small group of PAS reporters who were helped and the group who were told that they did not need a permit after all, are also back to square one. In short, the Council of State has once again turned a lot upside down, the consequences of which will be widely spun out in the coming months. If the Lbv regulations had been able to remain open a little longer, a whole group of Council of State victims would undoubtedly have come forward at the last minute.
Flogging himself
The Council of State claims to be tightening the screws because of new case law resulting from recent rulings by the European Court of Justice, but with an apparent twist of its own. Now, the author of this piece is not a lawyer, but the Council of State itself must have noticed that it is also slapping itself in the face with the current ruling. Because why else would it have done a 'half-hearted job' in 2019, let society muddle through for five and a half years and now, after case law that is not set in stone either, opt for an extremely restrictive interpretation?
The Council must have had a bit of a guilty conscience, because why else would a five-year transition period have been given? Nevertheless: one-nil for MOB, Environment and Grandparents for the climate.
German practice
Whatever one may think of the ruling, it makes it clear once again that more is needed than a clear arithmetic lower limit for nitrogen deposition (still only calculated). A promised appreciation of a proposal for this by Minister of Agriculture Wiersma has also not yet been received, but that is beside the point. It is now all the more urgent to join, among others, German practice. A clear threshold value would free the economy from the nitrogen fetishism in which the Netherlands is now trapped, while it does not change anything materially. Or will everything die in Germany?
Non-functioning
It does require political will and courage. The problem is that cooperation in the agricultural field does not function between the government parties. The VVD and NSC prefer to do business with GroenLinks-PvdA and D66 than with the BBB and PVV. Moreover, the Minister of Agriculture provides little direction and many BBB deputies consider themselves more bound to non-democratically tested IPO agreements than to their own political mission.
Alienating statement
Not only the Council of State caused a stir in the Dutch agricultural sector, but also the Court of Appeal in Den Bosch did so. It acquitted 60 animal rights activists who had indulged in a barn occupation in Boxtel in 2019. It led to one of the first performances by farmers' action group FDF. Animal activists are happy with the ruling and feel strengthened, but that is not the case with livestock farmers. They feel misunderstood, but judging by the reactions, not reprimanded. Rather alienated, and with that the judge may have overlooked something. Farmers' organization Agractie finds the ruling a disgrace and more militant groups threaten to intervene even more harshly in the event of new occupations. Or will barn occupations soon have to take place under police supervision?