It is perhaps the most important election theme: nitrogen. The provinces must complete their plans this summer to meet the government’s nitrogen targets. Can the outcome of the elections change anything about nitrogen policy? The NOS spoke about this with legal and ecological experts.
Not every provincial government is eager to reduce emissions in 2030 in such a way that about three-quarters of the protected nature will no longer be exposed to too much nitrogen. This has to do with the painful choices about farms that are required for this. Nevertheless, all provinces are making plans for lower nitrogen emissions in 2030, which they must submit to Minister Van der Wal (Nature and Nitrogen) in the summer.
If the polls somewhat match the election results, the States Halls will soon look very different. According to the polls, many seats in many provinces will soon go to representatives who are critical of nitrogen policy. Even VVD and CDA, the parties that have agreed on national nitrogen policy, have reservations in several provinces.
But what will these parties be able to do with their seats in the Provincial Council? If a new political wind blows in the provincial houses after the elections, they can at least delay the nitrogen approach, experts say.
Only: the longer the approach to the nitrogen problem is postponed, the longer the problems with permits will persist, says associate professor of environmental law Ralph Frins (Tilburg University). “For this, nitrogen emissions and precipitation must first be reduced significantly and the quality of nature improved. The longer you wait to take measures, the longer you will remain in the nitrogen swamp.”
Earlier this month, for example, the provincial government of North Brabant decided not to issue permits at all for the time being for activities that lead to extra nitrogen precipitation in nature that is overloaded by nitrogen. Research has shown that nature is doing too badly to allow more nitrogen precipitation. But other provinces also hardly issue new permits, while the ambitions in areas such as housing, infrastructure and sustainable energy are high.
If provinces are grossly neglecting their duties, the minister can take over.
Provinces can also refuse to implement the national policy. But then Minister Van der Wal will take over the helm from the provinces, she has already announced. The minister has several options for this, says assistant professor of administrative and environmental law Rogier Kegge (Leiden University).
For example, the law states that Van der Wal itself can determine the plans of the province if they are insufficient. “But then the question is: are they going to implement it? In constitutional law we have a horse remedy for that: the ‘substitution’. If provinces are grossly neglecting their duties, the minister can take over.”
Outlining a province is complicated. “It is not possible if the province does things slightly differently than the minister wants. Only if the province really refuses can the minister do this,” says Kegge. “That’s hard to pin down and hasn’t happened often in history.” It also takes a lot of time before a minister can force a province to implement nitrogen policy.
The elections are not just about the provinces. The result also leads to a new Senate. And the distribution of seats there is important for the cabinet, which wants to amend the nitrogen law. The current Nitrogen Act still states that 74 percent of nitrogen-sensitive nature in 2035 may no longer be exposed to too much nitrogen. The government wants to bring that deadline forward to 2030.
A majority in the House of Representatives is expected to support such an amendment to the law. Then the Senate comes into play, which changes its composition after the elections. The cabinet currently does not have a majority there and must therefore look for support for its plans.
Little chance in lawsuits
But the cabinet does not want to bring the deadline forward for nothing. The government is always wrong in lawsuits from environmental organizations, because the surplus of nitrogen precipitation on protected nature continues to exist. In some areas, nature is at risk of irreversible damage if nitrogen deposition is not reduced for a long time, according to various reports.
These ecological problems stand in the way of building homes, constructing roads and making industry more sustainable, for example, although the extra nitrogen precipitation from these activities is often limited.
Whether the political reality changes or not: the legal reality remains the same, say experts. Much protected nature is exposed to too much nitrogen, which damages nature. According to European nature conservation rules, Natura 2000 areas must be protected. As long as this does not happen, the government has little chance in court cases and it remains difficult to grant permits.
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