"I don't see how you can avoid the revocation of licenses"

Chris Backes on the legal protection of top nitrogen emitters near Natura 2000 sites

H.J. van der Weele painted this ploughing farmer near Elspeet (an agricultural enclave on the Veluwe) when nitrogen in the soil was still scarce and productivity low

With the fall of the Rutte IV government past July, the nitrogen approach in the Dutch countryside seems to be delayed again. True, the scheme for buying out peak emitters (large livestock farms near Natura 2000 areas) has been launched – with some success so far – but farm cessation is only one element in the nitrogen approach. For alternatives – such as innovation, extensification, conversion to another type of farming, or relocation – farmers depend on government schemes that are not yet ready. With so many uncertainties, Chris Backes (professor of Environmental Law at Utrecht University) manages to formulate some legal 'probabilities' that could potentially help farmers answer the challenging question: what is wisdom?

In a recent article in Boerderij magazine (a major news medium for the agricultural sector), Backes warns that Dutch provinces could be forced by the courts to revoke farmers' nature licences, which could occur notwithstanding provincial agreements or commitments never to proceed with forced buyouts or expropriation of farmers. Backes is specifically referring to top nitrogen emitting farmers (so-called 'piekbelasters') within 300 to 500 metres of a Natura 2000 site that is overburdened by nitrogen and who themselves have high nitrogen emissions. "If you look at how nitrogen precipitates, the obligation to withdraw permits mainly occurs in a circle of a few hundred metres," Backes says in the article. These farmers are therefore arguably contributing to the deterioration of nearby nature, and that is prohibited by law.

Deposition of ammonia and nitrogen: of the ammonia emitted, about 5% precipitates within a radius of 500 metres (Source: RIVM)

Top emitters face potential litigation

As long as the government buyout scheme for top emitters is open, he does not expect any lawsuits yet. "If an environmental association goes to court now, the province will respond: we are waiting for the results of that buyout scheme. And that is fully justified. I expect environmental organisations to wait until the buyout schemes are closed and then go and pick out a few of  the big emitters among the farmers." When a licence is revoked, a company is entitled to compensation for damages, Backes says, but this can be lower than the compensation in the case of expropriation. "With expropriation, you are entitled to 100 per cent full compensation. In my opinion, however, expropriation is not the right way here. Taking away property is a very drastic measure; I don't see how you can justify expropriation for the sake of just taking away a licence."

'Magic floors'

Earlier, Boerderij wrote about the news that low-emission floors (intended to reduce ammonia emissions from dairy cattle barns) appear to be much less effective than thought, according to as-yet unpublished research by Wageningen University & Research.  Almost a thousand dairy farms had low-emission barns by 2020. By using low-emission construction techniques, they could keep more animals within the nitrogen quota allowed on their farms (so-called 'internal offsetting'). What are the consequences for their nature permit? The action group Mobilisation for the Environment (MOB) argues that these permits were granted on incorrect grounds, and should therefore be revoked, but has so far not submitted any enforcement requests.

Legal experts state in the article that, in principle, a permit once granted gives the farmer sufficient legal certainty. Chris Backes points to one possible exception: if the livestock farmer does not apply the low-emmission system properly (according to instructions). "Then the legal consideration might change. But all in all, I don't see such a big danger that cattle farmers with low-emission sheds should all fear that their permits will be revoked." The situation is of course different for new permit applications; these have already been rejected by several courts because of the uncertainty about the actual emission reduction of low-emission floors. This suddenly makes the option to 'innovate' a less appealing instrument within the existing range of nitrogen measures.

The articles Hoogleraar: ‘Intrekken van vergunningen dreigt voor piekbelasters’ [Professor: 'Withdrawal of permits threatens peak-loading farmers' ] and Emissiearme vloer steeds verder op de tocht [Low-emission floor increasingly under threat] appeared in Boerderij no. 40, 5 July 2023 and no. 36, 7 June 2023) – only available to subscribers/for a fee.