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What are the options for the government after the verdict on nitrogen?
The Dutch government must start taking measures to combat nitrogen emissions in Dutch nature. The Hague court ruled that on Wednesday morning. To what extent is the government “obliged” to take measures?
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“A feast for nature,” is how Greenpeace called the Hague District Court ruling on Wednesday morning. In that ruling, the court orders the Dutch State to reduce the nitrogen surplus in half of its nature reserves by 2030.
Yet the government is not yet immediately announcing plans to actually reduce nitrogen emissions. To what extent are they obliged to do so? Folia asked university professor of International Law and Sustainability André Nollkaemper.
To what extent is the cabinet “obliged” to take measures to reduce nitrogen emissions?
“The cabinet has no choice. They are obliged by law, which stems from European law. Theoretically, the government can choose not to comply with the law. But then you run into two problems, firstly a penalty of 10 million if the 2030 target is not met. That is already quite unique, because normally the courts trust the State to comply with the law, so in this case that trust was not there.”
And what if the government chooses to pay the penalty?
“That is possible, but then, and here comes my second point, you immediately have a serious problem with state law. It really would be very problematic if the government chose to act in violation of Dutch and European law for a long time. Nor can I imagine that NSC, which has been hammering on so much about the importance of the rule of law, would choose to do that.”
At the same time, both the VVD and NSC say: the ball is in the BBB’s court. They have chosen not to implement Rutte IV’s package of measures. Let them sort this out.
“I understand that backtracking to some extent, because achieving the nitrogen targets will largely be about measures in agriculture, a portfolio of the BBB. That does pose a big problem for that party towards its supporters: will the party have to intervene in the agricultural sector. If they don’t, it will inevitably lead to the government being unable to meet the statutory targets.”
“If you prioritise the interests of farmers and supporters here over the requirements of the democratic rule of law, then you are on an extremely slippery slope. Then it can set a precedent, for how you deal with laws, including, for instance, in the field of migration. At some point, it then starts to look very much like Trump’s America.”
Could the cabinet fall out over that?
“I don’t rule that out. The nitrogen file has been running for years, cabinets have kept putting it off. All Rutte III and IV have done is enshrine the nitrogen targets in law, but they have never ventured to implement measures. That is no longer possible after this ruling. Now we will have to see whether this cabinet, with its diverse interests and BBB constituency, is capable of making hard choices. And if not, the question is on the table: do we want to dishonour the judiciary to keep the constituency happy? This dilemma can quickly become a political divisive issue.”
Party leader Caroline van der Plas (BBB) already let it be known that she wants to resolve the matter in Brussels.
“That is the fallback option, to go renegotiate with the EU to change the law. That way you could avoid conflict with the law. But that is by no means an easy path, because you have to get the majority of European member states to go along with a softening of European nature conservation policy. Either way, that requires time that is not available with this ruling – measures must be taken now.”
“And ultimately, of course, it is not about complying with the law. The law represents something much bigger: we are all running up against the limits of nature. With our economy, industry, infrastructure and agriculture, we have reached the limit of what nature can handle. If you manage to change the law at all, it will not solve the underlying problem. Our way of life, all the economic activities that lead to the nitrogen crisis, also have an impact on the climate, so we have to act anyway.”
Agriculture minister Femke Wiersma (BBB) mentioned appeals. Is that still an option?
“That is not out of the question, although the court has already said that even on appeal, the measures must simply be implemented. On appeal, the State could say that the court has stepped into the domain of the government and parliament. But that argument does not seem likely. The court acted within the limits of the law, leaving the choice of policy options to politicians.”
“The State could also base appeals on scientific grounds. The sharpest part of the ruling is about nitrogen reduction in 2030. That contains a scientific assessment of whether those targets can be met with current measures. I can imagine the state will argue, we are working on a package of measures, give us time to make policy. Schoof said last week that he will take the reins himself. But I don’t think that argument is likely to succeed either – the court based its ruling on a substantial number of scientific studies and I don’t think there is much chance of those going under on appeal.”
At the same time, renewable energy companies are also not happy with the nitrogen ruling. They warn that the ruling also halts the energy transition.
“This shows how complex the problem is. Not only agriculture but also construction, industry and roads contribute to the nitrogen problem. That makes it all the more important to choose which knobs the government will turn, and in which areas space will be left for activities needed for energy transition. This is where Johan Remkes wrote an excellent report in 2022. Remkes indicated that the agriculture is the major contributor anyway, otherwise the Netherlands will really shut down. The report is crystal clear on this: the way we have been farming in recent decades is not sustainable – this applies above all to intensive livestock farming, 70 per cent of which goes to export, but which has large-scale negative effects. We are running up against all kinds of limits: climate, nitrogen, public health, animal welfare... hard choices have to be made in these areas. This ruling is the signal to start making those choices.”
