What you can do with nitrogen rights from companies that have stopped

Cowboy behavior. uncollegial. Land grab. Provincial administrators, MPs and farmers’ representatives were short of words when it was revealed in April 2020 that the province of Brabant had gone shopping for nitrogen space in other provinces. Brabant needed this space for the construction of Logistiek Park Moerdijk, an industrial estate of 140 hectares with distribution centers.

This industrial complex has been debated since 2009. Opponents thought the landscape was being destroyed and doubted the number of jobs it would create. They also feared that nature would be extra burdened (including by the coming and going of trucks). According to the province, ‘Moerdijk’ was a top plan. It would give the economy in Brabant a boost.

Legally there was one hurdle, an ecological one. Additional nitrogen would be emitted as a result of the construction and commissioning of the business park. This is not allowed. Brabant therefore bought two farms in its own region, including the nitrogen space: it could use it for the industrial park. But it still wasn’t enough. That is why the province bought up the nitrogen space of farms in North Holland, Drenthe and Zeeland.

The painful thing was: Noord-Brabant secretly bought the farms in other provinces – deputies in Noord-Holland, Drenthe and Zeeland knew nothing about it. This met resistance. North Holland CDA member Willemien Koning-Hoeve said: “We need the nitrogen space that is available in North Holland ourselves. For housing construction, but also for farmers.” And then agriculture minister Carola Schouten (ChristenUnie) called Brabant “uncollegial” against farmers’ trade magazine New harvest.

Governments opt for ‘goat paths’: complex legal solutions

Almost three years after the nitrogen ruling by the Council of State, which ended flexible permitting because nature protection was not guaranteed, the nitrogen crisis has entered a surreal phase. Up to now, plans for an overarching approach devised in The Hague have largely failed – except for reducing the speed limit on motorways. A livestock feed measure was canceled and a pig farmers’ shutdown scheme was less successful than expected.

At the same time, provinces have projects that they would like to continue. The consequence? Governments opt for ‘goat paths’: complex legal solutions – such as buying up farms in other provinces, or playing with the emission rights of factories, farms or hotels that have been closed (or even burned down) for years.

This has several notable consequences. In practice, this leads to a nitrogen wild west in which different governments compete with each other. But even more crucially, various experts doubt whether this course of action will always hold up in court. In many cases it is questionable whether nature really benefits from it, or whether it is mainly a matter of paper reality. If a factory has been out of use for two decades, is it really good for nature if you use the nitrogen emission rights of this factory for new developments?

“You use nitrogen space that is no longer used to allow economic developments,” says Kees Bastmeijer, professor of nature conservation law at Tilburg University. “Then you increase the burden on nature again.” In practice, the burden on nature simply has to be reduced considerably, says Bastmeijer, because nature is in a very bad state. And that is also legally inescapable: that is simply what the European nature conservation law is intended for.

Environmental organizations see this as well and try to block the goat paths through the courts. Much is in motion. A recent ruling by a Brabant court about the Amercentrale, initiated by Mobilization for the Environment, has cast doubt on what is and is not allowed. According to the court, this factory may not have nitrogen rights that are not being used.

It is difficult to estimate how often administrators free up extra nitrogen space in creative ways – there is no national overview and the provinces do not keep track of it. NRC listed four remarkable forms of ‘nitrogen puzzle’.

1 Trains for nature

It seemed like such a good plan. Nature organization Limburgs Landschap wanted to take over an empty farm from the province in 2018 and put a ‘nature-inclusive’ farmer to work there. The director of Limburgs Landschap, Wilfred Alblas, saw it all: the farmer would lease the land through the nature organization and not burden nature too much. “Very inspiring,” says Alblas. And in line with the purpose for which the province once bought the farm: nature conservation.

Only it never got to that point. The province did not sell the Vliegekamp, ​​as the farm is called. In 2019, Limburg decided to keep the farm itself – to Alblas’ surprise. It soon became clear why. The farm proves to be of great use after the PAS nitrogen program has fallen. The province of Limburg can use the farm’s nitrogen space, which has not been used since 2012, to expand a railway terminal near Venlo, a few kilometers away on the other side of the Maas.

The expansion threatened to break down, because the emissions of the diesel locomotives were very high, and nature would deteriorate. But by using the unused nitrogen space of farm De Vliegekamp, ​​the problem was solved. It is not elegant, acknowledged deputy Geert Gabriëls (GroenLinks) against Omroep Venlo, who brought the matter to light at the end of 2021.

Also read: If the nitrogen approach doesn’t work now, this ‘environmental professor’ will stop

Alblas thinks it’s a shame that it turned out this way. Now more nitrogen emissions, albeit only slightly, are deposited on the nearby Ravenvennen nature reserve. “I find that distressing.”

2 Luxury apartments courtesy of the cattle feed factory

Anyone who will move into one of the new apartments in the former Brokking cattle feed factory in Wormer in a few years’ time will have a beautiful view: right next to the building complex is the Wormer and Jisperveld nature reserve, a vast area of ​​lakes and ditches where many birds live.

Before the construction of those houses could start, a complex game with nitrogen measures was needed in 2021. The project will include 68 homes in the former factory. But nitrogen is released during its construction. And once the apartment complex has been completed, traffic in the area will also increase. That is not allowed just like that, because the nearby nature suffers as a result.

For the construction of the apartments, the province therefore took a legal ingenuity. The former animal feed factory, closed for two decades, ran until its closure on a permit from 1976. The licensed nitrogen space from that permit can be used to legalize the nitrogen emissions from apartment buildings. After all, because the factory is no longer running, there is new scope for nitrogen activities within the permit.

Only: the 46-year-old permit contained no limit for nitrogen emissions at all, because at that time nitrogen hardly played a role in the granting of permits. So the environmental service Noord-Holland Noord got to work: it calculated how much nitrogen was actually emitted by the factory, in order to determine what was ‘permit’. Those emissions would then apply as a limit for converting the factory into apartments.

The environmental service investigated how much was probably emitted during the production and transport of animal feed in the last century. For example, we looked at a comparable animal feed company in Maasbracht, Limburg.

The solution worked: the calculated amount was enough to allow the construction of the apartments to proceed. If no objection is raised, the construction workers can get to work soon.

3 A Handy Burnt Down Department Store

The Gat van Goudzwaard, they call it in Burgh-Haamstede in Zeeland: the ugliest place in the center of the seaside resort where the Goudzwaard department store burned down in 2015.

Project developer Hans Boogert saw opportunities. Here he could perfectly develop a new apartment complex. Only the nitrogen rules got in the way: the failure of the PAS program in 2019 also meant the temporary end of the new construction project. That would attract more car traffic, and thus lead to nitrogen emissions – close to vulnerable dune areas of the Kop van Schouwen.

Until the municipality saw a new way out at the end of 2021. The lost nitrogen emissions from traffic to the burned-out Goudzwaard department store can be used as compensation to build the apartment complex. Construction will begin after the summer if all goes well.

4 Rijkswaterstaat on a farm hunt

What should Rijkswaterstaat do with six farms? In recent years he bought four in Gelderland, one in Limburg and one in North Brabant.

The reason was simple. Rijkswaterstaat needed extra space for nitrogen emissions to extend the A15 by about twelve kilometers to the south of Arnhem. The farms bought up provided the nitrogen rights needed for the construction of the highway and increased road traffic.

Rijkswaterstaat’s purchases raised eyebrows in the Gelderland Provincial Council in Arnhem. Some of the farms were already closed, and sometimes even demolished. „One of the farming families was on the TV show Our Farm with Yvon Jaspers”, says ChristenUnie-Staten member Dirk Vreugdenhil. Because of an emigration to Canada.

And there was something else going on. Until recently, it was not possible to shift nitrogen space in every province. Provinces have some discretion in what they allow. For example, it has only been allowed in Gelderland since the end of 2021. Like some other provinces, Gelderland feared for a long time that allowing it would lead to the projects with the deepest pockets benefiting: after all, they could then buy up farms the fastest and easiest.

When Rijkswaterstaat bought the farms, the province of Gelderland itself did not yet allow this. And even since it has been permitted, you are not allowed to just buy farms: the emissions space of livestock farms is handled with care, so that a large number of farms are not suddenly bought up.

That Rijkswaterstaat – part of the national government – ​​overruled the province and nevertheless bought a few farms, feels very strange, according to a large part of the Provincial Council. Formally, a higher level of government was allowed to do this. But in Gelderland itself there is simply also a demand for nitrogen space for some projects.

It remains to be seen whether Rijkswaterstaat’s approach will work. A number of environmental organizations and local residents have protested the extension of the A15 to the Council of State. Thus the nitrogen calculations would not be correct. A ruling is expected after the summer.

Also read: With the nitrogen fund of 25 billion, the provinces can fix it up

A version of this article also appeared in NRC on the morning of January 28, 2022