All large-scale construction projects that take place in relation to infrastructure, housing and energy transition with limited nitrogen depositions are affected by this landmark judgment. Earlier judgments had already demonstrated that for such projects, an ecological assessment is decisive. This is all the more relevant after the annulment of the special exemption for emissions caused by temporary construction activities (partiële bouwvrijstelling). Construction projects could get back on track if, based on an ecological assessment, significant negative effects on Natura 2000 areas can be excluded.

Background

Nitrogen depositions not only harm the environment and protected Natura 2000 areas, but they also cause enormous socio-economic problems in the Netherlands. In 2019, the highest administrative court in the Netherlands ruled that the government nitrogen policy did not comply with the Habitats Directive and could not be used as a basis for acquiring permits. The ruling has had a severe impact, leading to legal uncertainty, and the suspension and delay of many construction projects concerning housing, energy, infrastructure and industry.

Pursuant to Article 2.7 of the Nature Conservation Act, a permit must be requested if a project "may have significant (negative) consequences for a Natura 2000 area". Given the great sense of urgency that energy transition and the housing crisis pose for the government, the legislature reformed the Nature Conservation Act in 2021. One important reform has been the "construction exemption" (partiële bouwvrijstelling). This exemption applies to nitrogen deposition in Natura 2000 areas caused by construction activities, which deposition no longer needs to be taken into account when applying for permits under the Nature Conservation Act (Article 2.9a of the Nature Conservation Act). This generic exemption is in force as of 1 July 2021.

Judicial review

The rationale for the generic exemption is that construction activities are temporary and take place at constantly changing locations, with limited and temporary nitrogen emissions caused by building equipment and installations. This means that there is no structural deposition at a specific location. Instead, these depositions become part of the national background deposition, for which the government takes separate reduction and mitigation measures. While several projects have invoked the exemption, the extent to which it can withstand judicial review has been under discussion: the highest administrative court has now ruled that the exemption's generic character violates the precautionary principle as set in the Habitats Directive. Moreover, some of the government's reduction measures have not been implemented yet. And as for those that have been implemented, the court has ruled that their positive effects are still not certain.

Where does this leave the sector?

Without the generic exemption for construction activities, these activities need to be individually assessed - as was the case under the Nature Conservation Act before the exemption entered into force. In two earlier rulings, the highest administrative court had provided this back-up solution.

First, in a case regarding TenneT's offshore grid, the highest administrative court ruled that the activities did not lead to significant negative effects on the natural features of the Natura 2000 areas concerned, since an ecological assessment demonstrated that the construction activities led to a maximum effect that was negligible.

In another recent ruling, the court followed the same reasoning. Again, based on an ecological assessment demonstrating that the effect of the project was too small to bring about a measurable change in the ecosystem, the court ruled out that the construction activities together with the use of the maritime port would cause significant negative effects on the natural features of the Natura 2000 areas, and it dismissed the appeal against several spatial plans.

Conclusion

As the Council of State ruled that the construction exemption violates the Habitats Directive, construction projects will need permission based on the Nature Conservation Act. As long as ecological assessments prove the proposition that nitrogen depositions – both the minor and temporary ones such as the depositions during the construction phase of a project, as well as the permanent ones – will not lead to significant negative effects to the Natura 2000 areas concerned, projects may proceed.