The government relaxed the existing nitrogen rules exclusively for Schiphol

Minister Christianne van der Wal (Nature and Nitrogen, VVD) has weakened the nitrogen rules for Schiphol despite a negative advice from her highest nitrogen official. This made it easier for the airport to obtain a nature permit in September. Experts say the permit is unlikely to hold up in court. Other companies cannot claim the relaxation.

This is evident from internal documents of the Ministry of Agriculture, Nature and Food Quality (LNV) that were released following a Woo request from environmental organization MOB.

Schiphol did not have a valid nature permit for years and was therefore in fact emitting nitrogen illegally. The minister tolerated that. But toleration is only allowed temporarily. If a nature permit were not issued quickly, the toleration was in danger of having to end and Schiphol would have to halve the number of flights – in the most extreme case – as well as the number of jobs, according to the internal documents.

Consciously slow down

But issuing a new permit is difficult because the airport emits too much nitrogen and this puts too much pressure on Dutch nature. The released documents show that the Ministry of Agriculture is therefore deliberately delaying the procedures. As a result, she does not have to maintain enforcement and the shrinkage of Schiphol is postponed. “Issuing a permit that involves legal risks,” the ministry writes, is part of that delay strategy “in order to gain time.”

Agreements between the ministry and Schiphol

These legal risks concern nine farms that are closing down, which Schiphol bought at the beginning of 2023. With the nitrogen space that the airport purchases from livestock farmers in North Holland, South Holland and Utrecht, it wants to compensate for nitrogen emissions from aircraft and thus complete the permit application. Schiphol does not have to take into account the nearby vulnerable nature reserves – with the approval of the government.

This is contrary to the so-called PAS ruling of the Court of Justice. In 2018, it determined that the nitrogen rights of discontinued (farm) companies can only be used for a new permit if the space is not needed to restore or maintain vulnerable nature. According to European nature legislation, nature reserves throughout Europe must first be healthy before purchased emission allowances can be used for a new permit.

But unlike other companies, Schiphol does not have to meet this condition, Minister Van der Wal decided in June 2022. Because it is “of great importance” that Schiphol obtains a new nature permit, officials advise not to enter the farms purchased by Schiphol. check whether they are necessary for nature restoration, according to the Woo documents. Unlike other companies, Schiphol can therefore fully use the purchased nitrogen rights to offset its own emissions.

The LNV officials realize that this approach may not hold up in court, according to the Woo documents. “There is a risk that the judge will blow back the whistle on this,” an official emails. Yet the minister continues. It is unclear exactly why, because the ministerial consultation in which this approach was discussed was deliberately conducted without documents, according to internal emails.

“There is a risk that the judge will blow the whistle on this”

Chris Backes, professor of environmental law at Utrecht University, calls the minister’s approach “very shaky”. According to Backes, it is legally indefensible that fewer requirements are imposed on Schiphol than on other companies. “It must first be demonstrated that the farms are not necessary to restore or maintain nature. It is clear that this test must take place.”

The ministry said in a response that it has not applied that test for Schiphol “because private parties cannot be expected to take measures for nature restoration.”

Environmental law researcher Ralph Frins from Tilburg University finds it “difficult to imagine” that Schiphol’s permit will stand up in court. Last February, the Council of State ruled in two similar cases involving Limburg livestock farmers that the reasoning used by the ministry was untenable. “That statement confirms that the ministry’s positions do not hold water.”

It is striking that Schiphol does not have to take nature into account. Licensing throughout the country has been locked up for years for this very reason. Farms can hardly expand and construction projects have been halted. Nature suffers from nitrogen deposition and barely recovers, which is why permits are hardly issued anywhere anymore. The Netherlands Environmental Assessment Agency concluded in February that more measures are needed to reduce nitrogen emissions.

The documents show that a lot is at stake for Schiphol and the government. There are fears of job losses and that the state-owned companies Schiphol and KLM will be “severely affected” if Schiphol does not receive a permit quickly, according to a presentation to the ministers involved in December 2022.

Thought of a way out

To prevent this, LNV officials have come up with a way out. They are trying to delay as much time as possible with Schiphol’s permit application. If a new permit is being worked on, the minister can argue that there is a ‘prospect of legalization’ and there is no need to enforce it. Shrinkage of Schiphol is thus postponed. The officials also propose that the permit application be processed “for longer [te] “, according to internal documents from the Ministry of Agriculture, Nature and Food Quality that were released last September. And to grant a permit “that involves legal risks, in order to save time.”

Ministry’s plan to buy time for Schiphol

Environmental law researcher Ralph Frins finds the step-by-step plan “bad”. “You have to adhere to the law, especially as a central government.” Frins points out that nature has long been under great pressure from nitrogen emissions. “These types of tactics contribute to this and indirectly hinder other developments that need nitrogen space. This does not help society any further.”

Nevertheless, the government is still following the step-by-step plan. From August 2022, Minister Van der Wal will agree on a “tolerance construction” with Schiphol, according to a summary of several conversations between Schiphol and several ministers. This construction means that LNV “will not enforce if more flights are temporarily operated”. Schiphol, in turn, promises to allow fewer planes to take off in the future. Van der Wal ignores official advice that advises against toleration, because there is “very little room” for this under national and European legislation.

In a response, the ministry writes that “there is no question of consciously training the licensing process” and defends the tolerance policy: “A reasonable government cannot be expected to suddenly stop a policy that has been in place for years.”

Saved a year and a half of time

Last September, Schiphol received a nature permit after three years of delay. Environmental organizations MOB, Greenpeace and Milieudefensie have challenged the permit. They demand that it be destroyed. This was already taken into account in the ministry’s delay strategy. “The expectation is that this will take at least a year and a half,” Van der Wal officials write.

In the meantime, criticism of Schiphol is increasing regarding the purchase of farms. The permit is contrary to the wishes of the House of Representatives, which adopted a motion at the end of 2022 calling on the cabinet to “stop the nitrogen hunting of farmers for […] aviation”. Last week, Schiphol entered the nitrogen market for a second time: the airport bought two livestock farms in order to finalize the nature permit for Rotterdam The Hague Airport.