February 4, 2023

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Another goat's path went: the Minister must not withhold enforcement in the case of unlicensed nitrogen emitters

Another goat’s path went: the Minister must not withhold enforcement in the case of unlicensed nitrogen emitters

And so another way out of one of the most complex nitrogen profiles was denied. Earlier this month, Minister Christian van der Waal (Nature and Nitrogen, VVD) asked the National Advocate, Pilce Recken, whether the nitrogen emissions of more than 2,400 unlicensed (agricultural) businesses could be overlooked through some kind of general exemption.

A few days before Christmas the answer came: An enforcement waiver is excluded for all unlicensed nitrogen emittersBecause it is against the law. W: The Council of Ministers cannot circumvent this by amending the law itself. In other words: a large number of goats are out of the way in the nitrogen crisis, and it is becoming increasingly difficult to find a solution for these unlicensed companies.

Since the State Council declared the Nitrogen Approach (PAS) program invalid in May 2019, companies that fall under the PAS have been emitting nitrogen without a permit. The companies – the “PAS correspondents” – present an increasingly pressing problem for the Cabinet: legalizing these companies is essential if the government is to remain on good terms with the agricultural sector.

The government promised to legalize the group a few years ago, but this is going slowly. Minister Van der Waal wrote to the House of Representatives last Friday that, so far, only 35 companies have found a solution. The Cabinet pledged to legalize all unlicensed companies by February 2025.

For years, the state and provinces have said that these businesses will not be scrutinized because they have become “illegal” through no fault of their own. Therefore, Mobilization for the Environment (MOB) recently initiated enforcement actions in various provinces to enforce the enforcement of unlicensed nitrogen emissions through the courts.

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Check anyway

Last May, the court in Overijssel ruled in favor of the MOB, which means the county must still review unlicensed companies. Dozens of companies have been subjected to fines ranging from tens to hundreds of thousands of euros or have to significantly reduce her herd, in some cases in half, in order to meet the requirements.

So Overijssel came up with a temporary solution: by not spreading manure on his land next year, the county’s nitrogen emissions would drop. The nitrogen space won in this way goes to unlicensed companies.

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The Attorney General’s advice shows how seriously the Cabinet is looking for a way out of the PAS reporting file, and how difficult it can be. The advice followed a motion by VVD Member of Parliament Thom van Campen on December 7, signed by the BBB, CDA, ChristenUnie, Groep Van Haga, JA21, PVV, SGP and Gündogan.

The two most important questions in the attorney general’s advice: Can enforcement be waived, and can the provinces and the national government itself obtain nitrogen space for unlicensed growers?

The state’s attorney says the lack of enforcement is “extremely limited.” Boycotts must apply, unless there is a concrete prospect of legalizing the company – which is not the case with most companies. A farmer who can prove through “environmental proof” that he doesn’t burden the neighboring nature reserve too much can avoid enforcement, according to the state’s attorney.

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The national government and provinces are also not allowed to buy nitrogen acreage and donate it to unlicensed businesses, according to the state’s attorney. Government purchase of nitrogen acreage can be a form of unauthorized government assistance and is only permitted if the purchase is “market-oriented”. This must be considered on a case-by-case basis, and also adopted at the European level.

The advice also addresses the issue of whether a bank is permitted to lend money to unlicensed farmers, for which the government or the provinces act as guarantor. According to the state’s attorney, this is only allowed if the government guarantee makes no difference to the loan. If the loan is not made without a guarantee, or on less favorable terms, the guarantee is also counted as state aid.

The nitrogen puzzle

The government can do little other than buy off the farmers and use the nitrogen acreage this generates to legalize the unlicensed business. But farmers’ buying has been disappointing for 25 years, according to a study by the Dutch Environmental Assessment Agency, and government expectations are too high. The “nitrogen conundrum” is also complex: with fully purchased farms in Groningen, it is not possible to legalize the presence of “illegal” farms next to Veloy. The new nitrogen space can in principle only be used by a nearby unlicensed grower.

SGP member Roeland Bisschop asked Nitrogen Minister van der Waal if she could guarantee a solution for unlicensed growers. The minister responded evasively. Finding a solution is a “legal task,” van der Waal wrote to the House of Representatives: The Cabinet is “doing its best to bring about these solutions as quickly as possible.”

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Last month, the Cabinet announced a ‘damage counter’. to unauthorized growers. It is not clear what damage the government will pay. Because earlier this month, Van der Waal wrote to the House of Representatives: “For example, a penalty imposed cannot be repaid.”