Case law alert: Nitrogen exception for the construction phase was unlawful

Nature reserves in the Netherlands are overloaded with nitrogen, due to nitrogen emissions caused by, among others, livestock farms and traffic exhaust fumes. In order to protect nature reserves, European nature conservation rules have been strictly enforced in the Netherlands since May 2019. This caused a halt to many construction projects (including projects in for example the residential sector, the energy sector and the logistics sector).

As a result of the nature conservation rules, construction projects – as part of the permitting process – need a nitrogen effects calculation. A project may only go ahead if it has been demonstrated that the project will not adversely affect protected nature areas. In projects this calculation had to be made for nitrogen emissions in the construction phase (e.g. due to construction traffic and the usage of rubble crushers and cranes), as well as in the operational phase (e.g. due to regular traffic exhaust fumes). 

Since 1 July 2021, legislators in the Netherlands had formed an exception for the assessment of nitrogen effects in the construction phase. As compensation, the Dutch government announced to take several nationwide measures for nature restoration.

However, on 2 November 2022, the highest administrative court in the Netherlands ruled that the exception for the construction phase was unlawful and is now no longer applicable. This means that nitrogen calculations for projects – as before 1 July 2021 – must cover the construction phase again (next to the operational phase) [1].

When a calculation shows that a project does have the potential to negatively impact a protected nature area, a permit under the Nature Conservation Act is required. And these permits are difficult to obtain. An ecological impact assessment may offer a way out, or potential negative impacts can sometimes be avoided by working with more sustainable construction equipment, such as electric construction vehicles.

[1] These calculations must be made with the AERIUS calculation programme.

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