In the case leading to the judgment of 25 February 2021, the project is located both in the vicinity of a special area of conservation (“SCA”), part of the European Natura 2000 network, and of a protected nature site that is part of the “Flemish Ecological Network” (“Vlaams ecologisch netwerk”).
No further deterioration of protected nature sites is possible
The European Habitat Directive requires that for SCAs, the Member States shall take appropriate steps to avoid the deterioration of natural habitats and the habitats of species. Any plan or project not directly connected with or necessary to the management of the SCA, but likely to have a significant effect thereon, shall be subject to a so-called appropriate assessment. Authorities may only authorise the plan or project after having ascertained that it will not adversely affect the integrity of the SCA, taking into account the site’s conservation objectives.
As for the protected nature site under the Flemish Ecological Network, Article 26bis, §1 of the Flemish Regional Statute on Nature Conservation states that the authorities may not grant an authorisation or a permit for an activity that may cause irrevocable and unavoidable damage to nature.
The Flemish framework to review the effects of nitrogen deposition
The Flemish government has developed temporary ‘guidelines’, which are not legally-binding instruments, to review the effects of ammonia (NH3) and nitrogen oxide (NOx) in permit-granting processes. In particular, as long as the project’s share of immissions of NOx and NH3 does not reach a threshold of 5% regarding the critical deposition value of the affected habitat, the effect on the habitat is not deemed to be significant and consequently, a permit for the project can be granted. The critical deposition value is the amount of nitrogen that a habitat can absorb without any negative effects. Since in this case, the share of NOx and NH3 immissions was lower than 5%, a permit was granted. No appropriate assessment took place, even though the protected nature areas contained habitat types especially sensitive to acidification and eutrophication.
In its critique of the annulled permit, the Council has stated that no specific and individual assessment reviewing the specific characteristics of the SCA took place. By simply applying the guidelines and the 5% threshold, the Flemish government, when granting the permit, could not state without scientifically reasonable doubt that there were no negative effects on the SCA. Also, the cumulative effect of several projects below the 5% threshold was not taken into account. The same has gone for the assessment that there is no irrevocable and unavoidable damage for the protected site that is part of the Flemish Ecological Network. The Council therefore annulled the permit.
Given this recent judgment, the nitrogen deposition may look like a new issue, but it is not. In 2014, the Flemish government decided to use a three-step approach: interim guidelines; a provisional general framework (“Voorlopig PAS”) and a final general framework (“Definitief PAS”). However, none of the deadlines set in 2014 have been respected and the Flemish authorities are in fact still using the 2014 interim guidelines (slightly amended in 2017). Clearly, there is no political consensus to tackle this issue, given the potential impact on agriculture, industry and transport.
Interestingly, as an immediate consequence of this judgment, the interim guidelines are no longer available on several official Flemish websites.
Effects on future projects
The question is what the effects of this judgment will be on future projects. In the short term, permit-granting authorities will need to perform a better, case-by-case review of the effects of any project’s nitrogen deposition.
The Flemish government is currently also working on a so-called ‘programmatic approach’ to tackle nitrogen, which would provide a general framework on what is deemed ‘admissible’ and what is not.
The European Court of Justice has already ruled in its judgment of 25 February 2021, concerning the so-called programmatic approach in the Netherlands (“Programmatische Aanpak Stikstof: PAS”), that a general programmatic approach can be compatible with the Habitat Directive, as long as the appropriate assessment accompanying the programmatic approach does not have any lacunae and contains complete, precise and definitive findings and conclusions capable of removing all scientific doubt as to the possible adverse effects. Only if the programmatic approach is scientifically sound and if it does not leave any doubt as to the lack of adverse effects of those
plans or projects on the integrity of the sites concerned can it serve as a base for decisions about individual projects. In the Netherlands, the programmatic approach has also taken uncertain future mitigation measures into account, which the ECJ judged to be contrary to the Habitat Directive, and which has led to the annulment by the Dutch Council of State of permits for several large-scale agricultural farms and the so-called “nitrogen crisis”.
In the meantime, an individual review of the effects of nitrogen deposition on nearby protected nature areas is necessary. Given the poor condition of protected nature sites in Flanders, this will not be an easy task. The vast majority of all Flemish SCAs has nitrogen deposition values that are too high in relation to their critical deposition value.
In any case, it is clear that for further economic development to be possible and for new projects to be authorised, the protection of nature needs to be improved. Further development is possible, as long as there is no further deterioration of protected nature.