The Administrative Jurisdiction Division of the Council of State has ruled that this so-called calculation distance of 25 kilometers is acceptable for individual projects.
For every project that produces nitrogen, the nitrogen consequences must be calculated up to a distance of 25 kilometres. Whether that is the construction or widening of a road or the establishment or expansion of a livestock farm. The cabinet has set this distance in 2021. But there is debate about this, especially whether the distance is large enough for a full view of the consequences of nitrogen precipitation. The Administrative Jurisdiction Division of the Council of State ruled today (April 5, 2023) that this so-called calculation distance of 25 kilometers is acceptable for individual projects.
Interim ruling ViA15
It does so in a so-called interim ruling in the case about the route decision 'A15/A12 Ressen-Oudbroeken (ViA15)' of the Minister of Infrastructure and Water Management. With this interim ruling it is not yet clear whether the A15 can be extended at the Ressen junction and connected to the A12. This is because the Administrative Jurisdiction Division has not yet ruled on all objections that have been raised against the route decision. It will make a final decision on this later.
Great social importance
Due to the great social importance, the Administrative Jurisdiction Division has opted to give an interim ruling on the calculation distance of 25 kilometers and the use of the so-called SRM2+ calculation model for road traffic in an interim ruling. The calculation distance was first used for the amended route decision for the ViA15 in September 2021 and has been used since January 2022 for all nitrogen-causing projects. A judgment on the acceptability of both the calculation model and the calculation distance is therefore of great importance not only for this case, but for many projects.
Calculation models: how is nitrogen precipitation calculated?
The AERIUS Calculator is used to calculate how much nitrogen from an individual project amounts to protected nature. Within this, two calculation models are used for road traffic: SRM2+ and OPS. Model SRM2+ is used to calculate the nitrogen deposition within 5 kilometers of a road. The OPS model is used for distances between 5 and 25 kilometres. The objectors argue that the minister should only use the OPS model, because the SRM2+ model would underestimate the nitrogen precipitation that ends up on a nature reserve. The Administrative Jurisdiction Division ruled that this was not the case. According to the Administrative Jurisdiction Division, the SRM2+ model used by the minister for the 2021 route decision is based on the 'best scientific knowledge'. The minister has convincingly refuted the objections to this model, referring to reports from RIVM and TNO, according to the highest administrative court.
Calculation distance: up to what distance should you calculate nitrogen precipitation?
Subsequently, the Administrative Jurisdiction Division of the Council of State assess whether a calculation distance of up to 25 kilometers is acceptable for calculating the nitrogen consequences of an individual project. That is the case. Every calculation model has a limit beyond which it can no longer make scientifically reliable statements. This means that beyond that it is too uncertain whether the calculation still corresponds to reality. With studies by RIVM and TNO, among others, the minister has convincingly justified that the maximum distance within which scientifically reliable nitrogen calculations can still be made for an individual project is 25 kilometres. European nature conservation law also requires that for each project the negative consequences for protected nature are mapped out on the basis of the best scientific knowledge. The model for calculating the nitrogen consequences of projects, with the calculation limit at 25 kilometers, constitutes the best scientific knowledge.
Nitrogen beyond the 25-mile limit
This does not mean that nitrogen that ends up in protected nature areas beyond the limit of 25 kilometers is irrelevant. That nitrogen precipitation is part of the total nitrogen precipitation in the Netherlands and can no longer be attributed to the individual project. The government is responsible for taking measures to prevent the deterioration of protected nature as a result of that national nitrogen precipitation. However, the question of whether these measures can withstand the test of criticism cannot be raised in the context of the assessment of an individual project, such as a route decision or a nature permit.
Continuation case route decision ViA15
Today's interim ruling establishes that the nitrogen calculation underlying the appropriate assessment for the route decision ViA15 is in order. What remains are the objections of five objectors to the appropriate assessment and the external netting. The Administrative Jurisdiction Division will continue the proceedings with these objectors and will later make a final decision on the route decision for the ViA15. For one of the objectors, Steenfabriek Huissenswaard BV, the procedure will come to an end today. The Administrative Jurisdiction Division declares her appeal to be unfounded.
