What is the state of the affairs in Flanders with respect to nitrogen and the implementation of the Habitats Directive? Is a civil lawsuit worthwile in order to challenge the Flemish region to evolve to a stricter policy on nitrogen?
Adopted in 1992, the Habitats Directive aims to protect species and habitats and to restore biodiversity. As nature and environment are regionalised competences in Belgium, the Flemish, Brussels and Walloon region implemented the Habitats Directive. The Flemish region did so in its Nature Decree of 2014. The same year the Flemish government specified conservation objectives for 48 habitat types. By 2050 the 48 habitat types should be in a good state of conservation. Nitrogen is a major threat to these conservation objectives.
Following the example of The Netherlands, Flanders set out to develop its Integrated Approach to Nitrogen in 2014. The idea behind the approach is to provide a legal framework that allows to decide which new nitrogen emitting activities can be authorized. Contrary to the Netherlands, the Flemish Integrated Approach to Nitrogen has a temporary nature and is not a legally binding document.
The Flemish minister of environment promised in its policy note an action program on the Integrated Approach to Nitrogen for the period 2020-2025. A new Integrated Approach to Nitrogen should have been adopted by now, as we are nearing the end of 2020. However, no such program has been decided. No last-minute major changes are to be expected, as the Christian democratic party, which defends the interests of agricultural sector, holds the post of Minister of Agriculture in the Flemish government.
Dutch nature and environmental action groups have launched over the past years lawsuits against permits for livestock facilities. In 2019 the Dutch Council of State ruled in its decisions 201506170/2 and 201600614/3 against those permits and decided that the Integrated Approach to Nitrogen could no longer be used to allow activities which cause nitrogen emissions. The Dutch version of the Integrated Approach to Nitrogen took into account future positive effects on nitrogen emissions when issuing a permit for an expansion of livestock farming or new road works. The Council of State judged that this is an infringement on the Habitats Directive. The Directive requires that the positive effect of the compensatory measures is established in advance.
The Dutch Council of State used a permit level lawsuit to pronounce a policy level judgment.
The impact of aforementioned decisions on the Dutch environmental policy and politics in general was profound. An estimated 18.000 projects causing an increase in nitrogen emissions are likely to be cancelled, the livestock should be halved and some 127 government projects face annulment. In the wake of the judgements a parliamentary commission presided by Mr. Johan REMKES, an elderly statesman, advised to halve the nitrogen emissions by 2030 in its report “Niet alles kan overal” (Not everything is allowed anywhere). On December 15th, 2020 the Dutch Nitrogen Act was adopted. It aims for a reduction of 50% by 2035.
In Flanders, the nature conservation organisation Natuurpunt tries to replicate the Dutch decisions through similar cases before the Council for Permit Disputes (e.g. Natuurpunt/Hertog Vee). The cases are currently pending and a decision is not expected in the near future. Moreover it is uncertain whether the decision will set a similar precedent as in the Netherlands due to the non-legally binding status of the Integrated Approach to Nitrogen. Finally, it is unlikely that an administrative body such as the Council for Permit Disputes will publicly criticize the Flemish nitrogen policy.
Taking into account this context, a more proactive approach by means of a civil lawsuit against the Flemish region is necessary, in order to call into question whether the status quo of Flanders’ policy on nitrogen meets the requirements of key pieces of European environmental legislation. The lawsuit should be launched by an organisation which has legal standing under the Aarhus convention (e.g. ClientEarth, Bond Beter Leefmilieu, Natuurpunt,…). It could be based on the article 6 of the Habitats Directive. The current environmental policy with respect to nitrogen emissions of the Flemish region is infringing on paragraphs 1, 2 and 3 of this article.
The civil lawsuit should take into account two scenarios (i) the Flemish region develops a nitrogen policy (or claims it will do so in the near future) or (ii) it does not develop or prepares such policy. Both scenarios can be addressed by focusing on the level of ambition of the Flemish region regarding nitrogen emissions. A similar approach was successfully used in the Dutch Urgenda case on climate change.
In case the court imposes an increased ambition level with respect to nitrogen emissions, the Flemish region will have to take a number of concrete measures in an integrated approach, nitrogen act or similar legal instrument. The next step would be compare these actions with the imposed ambition level and to challenge the measures before court if they fail to meet the objectives.
For a specific percentage and timeline with respect to the ambition level the aforementioned Remkes report and the Dutch Nitrogen Act can be used as a benchmark. Both have a scientific basis and the Dutch and Flemish situations are similar. The nitrogen emissions in Flanders amount to 23,8 kg/hectare, even higher than in The Netherlands with 22,5 kg/hectare in nitrogen emissions.