On Valentine's Day, an entire session was devoted to the Nitrogen Approach Program (PAS) at the Council of State in The Hague. A basket of eggs in the aisle is decorated with hearts and reminds those present of the special day, but otherwise it is mainly tough.
The case regarding the PAS was initiated by the Mobilization for the Environment (MOB) cooperative and the Environmental Association, because they see major objections and want the legislation off the table. During the session, all (very) technical aspects of the PAS were discussed.
Attack on vulnerable nature
The case is complex. This is partly because the legislation surrounding the PAS is complicated and partly because the matter is not simple from a procedural point of view. The Environment Association and MOB have challenged 10 permits under the Nature Conservation Act in North Brabant, Limburg and Gelderland. The plaintiffs focus on the refusal of the provinces to take measures against grazing and fertilizing of land.
However, the provinces state that room for fertilization and grazing is included in the PAS. The claimants, on the other hand, are of the opinion that a permit should be issued per company for grazing and fertilizing. According to the plaintiffs' spokesperson, grazing is an attack on the vulnerable nature.
Letter to Parliament
During the hearing it became clear that the plaintiffs want PAS off the table. They believe that the legislation does not contribute to achieving the goals under the Habitats Directive. It is also referenced several times a letter to Parliament that Minister Carola Schouten (Agriculture, Nature and Food Quality) recently sent. She states that, regardless of whether the PAS is scrapped or not, she will continue with the recovery and protection measures from the PAS.
For the claimants, this is proof that the PAS does not actually matter. Even without the legislation, the minister will continue with the measures. According to state attorney Hans Besselink (van Pels Rijcken & Droogleever Fortuijn lawyers and notaries) that is not the conclusion that can be drawn from the letter to Parliament.
Scientifically proven
The plaintiffs cite Wallis de Vries, professor of Ecology and Insect Protection (Wageningen University and Research). De Vries states that the recovery measures, which are part of the PAS, do not promote the recovery of nature. They might even be counterproductive. For example, digging the soil not only leads to the removal of nitrogen, but also to the removal of minerals and organic substances. The combination air scrubbers, which appear to achieve a lower efficiency, are also regularly presented as an argument for the PAS not working.
According to the claimants, measures must be indisputably scientifically proven to be effective. National Advocate Besselink indicates that it is only possible to work with the best available scientific knowledge. The scientific basis for the PAS is essential for the ruling of the Council of State. That is why the plaintiffs also bring the so-called 'ammonia hole' in; this serves as evidence that the models are flawed. This ammonia gap is the difference between the calculated and measured emissions.
Besselink indicates that the calculation model (Aerius) within the PAS is continuously calibrated to the measurements. However, according to the claimants, the margin of uncertainty on the models is so large that ultimately there is no positive effect on nature. They indicate that it is PAS one nitrogen reduction of 10 kilotons is promised, while 20 kilotons are already missing from the calculations.
On credit
A tricky point is that permits (under the PAS) are granted 'on credit'. This means that space is claimed that has not yet actually been created, but for which the measures to create this space have already been taken or planned. The Uylenburg State Council sought an answer to the question of whether it is important in what time frame the measures will have an effect.
"Perhaps a time frame of 1 to 5 years is too long, because too many autonomous developments could come into play," she wondered. Besselink indicated that processes often take a lot of time. Nature is not designed in such a way that measures have an immediate effect.
The pronounciation
The ruling can only take 12 weeks. It is uncertain which way things will go. The Uylenburg State Council had prepared thoroughly and conducted the session in a structured manner. The Council of State clearly does not act overnight. It was indicated several times how complex the legislation is.
If the PAS does not hold, the consequences will in any case be major and the agricultural sector will be closed for the time being. However, developments outside agriculture will not be able to proceed.