Van der Wal’s statements about Schiphol’s nature permit are just as rickety as the permit itself

Shortly after NRC revealed last week that the government had relaxed the nitrogen rules especially for Schiphol, outgoing minister Christianne van der Wal came up with a statement that there was nothing to worry about. This is not true, according to requested government documents.

Van der Wal states in her statement, among other things, that only after a ruling by the Council of State in February of this year did it become definitively clear that when exchanging ‘nitrogen space’ between private individuals, it must first be examined whether the measures actually contribute to nature improvement. , the so-called additionality.

Known for much longer
However, the minister had had this knowledge for much longer. On December 5, 2021, in the preparation for a ministerial meeting on Schiphol, it was already concluded that when exchanging (netting) nitrogen space, “it must be demonstrated on the basis of settled case law that the space is not necessary to achieve nature goals or environmental values.”

Two weeks later, after consultations between the ministers have already taken place, an official from the Ministry of Agriculture (responsible for whether or not to grant the nitrogen permit to Schiphol) emails that the permit depends on compensatory (‘mitigation’) measures. and the additionality test. According to the correspondence, this also applied to transactions between private companies, but legal procedures were still ongoing, so there may have been a goat trail there.

This principle did not only become known at the end of February of this year, as Van der Wal now explains, but was already clear more than two and a half years ago. Officials at the ministry explicitly warned that additionality does apply to all nitrogen transactions, including those between private individuals. The judge had already established this in a judgment. Although an appeal against this was still possible, the LNV’s own officials clearly indicated that it was a well-thought-out and detailed ruling.

Difficult to maintain
They called the idea that additionality only applies to the government “difficult to maintain”, especially if the government wants to withdraw or change permits from others (read: farmers).

A little later it gets even spicier. Just before Christmas 2021, a coalition agreement (CA) has just been signed by the forming parties, containing the generous sum of 25 billion euros for the National Rural Area Program. A report of a meeting at the Ministry of Agriculture, Nature and Food Quality shows that the purchase scheme included in it can help “to demonstrate that the additionality principle is met”.

Extra money deployed for Schiphol
During that consultation it was also discussed that additional money for the national purchase schemes could be used to reduce the task for Schiphol. At the same time, the meeting report once again clearly states that the additionality principle must be met – that nature also benefits.

After the turn of the year, LNV will pick up the thread energetically. At the same time as the good wishes for 2022, an official emails: “We know that an approach around industry is mainly needed and that the space from agriculture is limited, but it may turn out that there is just enough available from the agricultural sector.”

Industry, but especially agriculture, must therefore create space to help Schiphol obtain its permit. This policy will completely turn the world of many livestock farmers upside down in 2022.

Make haste for Schiphol
In a second email in this discussion, an official writes that “the resources from the coalition agreement can be used in such a way that the additionality principle is guaranteed in as many areas as possible. The Directorate General of Nitrogen (DGS) will consult with the provinces involved to see whether the relevant nature objective analyzes for the areas around Schiphol can be delivered more quickly or whether insight into the anticipated conclusions can be provided more quickly.”

This once again shows that the additionality principle does indeed apply. Although the government may have far-reaching plans for livestock farming and be ready with buyout schemes, additionality must be demonstrated. So said the top officials of LNV at that time.

A few months later, officials from the Ministry of Finance also expressed their concerns about the feasibility of Schiphol’s nitrogen permit. “We note that it appears to be becoming increasingly difficult to mitigate Schiphol’s assignment (in a timely manner). In particular, the requirement that measures must be additional to what is needed for nature is very restrictive,” one wrote.

Dealing creatively with nature permits
And then in the same email cheerfully calling for solutions for “the design of the permit” to be looked at “with as much goodwill and creativity as possible”. For the sake of completeness: the Ministry of Finance is Schiphol’s largest shareholder on behalf of the State.

Around that time, the Ministry of Infrastructure is working hard on the decision to temporarily shrink Schiphol. The main purpose of this decision is to strengthen the legal position of the State in the lawsuit brought by the Right to Protection against Aircraft Nuisance (RBV) foundation, as we previously showed on the basis of other government documents. By the way, that decision completely missed its target, as it turned out after the RBV verdict.

In the process leading to the downsizing decision, a note entitled ‘Internal netting and additionality’ circulated at the Ministry of Infrastructure. It explicitly states that additionality is required and that “the requirements for substantiating additionality are strict according to case law”. And that it is “becoming increasingly complicated based on new insights and enhanced case law”.

Regarding the external netting between ‘private individuals’, which Van der Wal is now opposed to, the officials note that even then the judge had already ruled that additionality is required. However, an appeal has been lodged against that ruling.

It is difficult to understand why, against this background and with this knowledge of the officials, Schiphol is still granted a nature permit in which the additionality requirement is deliberately ignored.

Aviation interests at stake
More will become clear with the formal announcement of the temporary downsizing decision for Schiphol in June 2022 – coincidentally or not preceded a fortnight earlier by the Initial Memorandum on the National Rural Area Program. The accompanying decision note states that there is a lot of ‘discussion’ about how Schiphol can demonstrate that it meets the additionality requirements. And: “This means that without appropriate measures, public aviation interests are at stake. Together with the Directorate-General for Nitrogen and LNV, an official investigation has been conducted into the conditions under which a permit can be issued or a decision can otherwise be taken that sufficiently safeguards these interests.”

Difficult to understand official language, but it states in no uncertain terms that aviation is considered so important that LNV and DGS should cooperate in making Schiphol whatever it takes to help with a permit. Large parts of the text of this decision note have been blackened out and therefore remain a ‘state secret’ for unclear reasons.

This alleged importance of Schiphol is once again underlined in the memorandum ‘Background to proportionality’. In short, it states that if Schiphol had to comply with all applicable laws and regulations, the airport would have to shrink so much that it would no longer be ‘proportional’. At least, that is the opinion of the civil servants and the cabinet, which agrees with the decision on the basis of the decision note.

Arbitrary lower limit of 440,000 flights
That is why they define an arbitrary and barely substantiated number of 440,000 flights as a critical lower limit. Subsequently, reasoning is done towards that limit.

The same note also discusses additionality.

The government rightly notes that “if mitigating measures must first be implemented to maintain or restore the nature reserve and only then can they be used to benefit the task for which a permit has been requested, this would lead to an impossible increase in the nitrogen task for Schiphol.” ”.

It is stated in black and white: Schiphol is virtually unable to obtain a nature permit legally and so the legal rules must be subordinated to the goal.

At that point, there is no longer a pure legal assessment by the competent authority, Minister Van der Wal in this case. This is despite her repeated statements in the House of Representatives that she limits herself to that legal assessment and on that basis has helped Schiphol obtain the nature permit in an honest and objective manner. This was precisely the reason for her to ignore the controversial statement from the House and, despite the wish of the House, to grant Schiphol the permit without waiting for a new cabinet.

Clearly politically driven decision
Van der Wal clearly did not act from her role as a competent authority, but from her role as a politically driven minister of the VVD house. The national airport had to obtain the permit at all costs, even if this exceeds all limits of good governance. It previously appeared that Van der Wal was prepared to use all political and legal tricks to achieve this VVD goal.

Although it has been clear since 2021 that the additionality principle must be met, it has been ignored time and time again and the policy train continues to rumble on. Schiphol is once again and demonstrably receiving exceptional treatment. A treatment that is at the expense of nature, at the expense of the agricultural sector and at the expense of the credibility of the nitrogen policy. This goes against the Remkes advice of a proportional contribution from all sectors and is contradictory to several adopted motions in the House of Representatives.

It is also a course of action that entails major legal risks for the State. Because every farmer who will soon be expropriated will be in a very strong position when they present their case to the judge. The legal inequality literally radiates.

Sky-high price tag
What this deliberately flawed policy does to confidence in politics and our democracy is anyone’s guess. A sky-high price is paid to avoid having to hinder Schiphol. A price that is also rapidly increasing now that the minister is sinking further and further into the swamp he has created himself with lying statements.

In addition to the messing around with additionality, which should make an “impossible task” feasible for Schiphol, Van der Wal states in her statement that Schiphol’s application for the nature permit has been assessed in the same way as that of other applicants. She denies applying more flexible rules for Schiphol. But this is also not true, as appears from the requested documents.

To keep things clear, SchipholWatch will soon publish a second message on this subject. In it we discuss in detail the preferential position that Schiphol was given compared to other sectors, contrary to what the minister says.

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