The new critical deposition values (CDVs) were published at the end of 2022. The ball is now in the Flemish Government’s court to implement them. Minister Demir has previously stated that he has no intention of doing so. He considers this to be “une fausse bonne idée” that entails significant risks in terms of the granting of permits.
The KDWs for Europe are established by the United Nations Economic Commission for Europe (UNECE) under the Geneva Convention on Long-Range Transboundary Air Pollution (CLTRAP), to which Belgium is a signatory[1] of 13 November 1979 and the Gothenburg Protocol to that Convention of 30 November 1999[2].
The Guide to the Gothenburg Protocol[3] is implemented by the Coordination Centre for Effects (CCE), which acts as a Programme Centre within the framework of the International Cooperative Programme (ICP) on Modelling & Mapping under the UNECE, as part of CLTRAP. At the instigation of the CCE, an initial report was published in 2010 setting out the ranges for the KDW in relation to nitrogen in Europe. This was implemented for Flanders by the INBO in 2013[4]. In October 2022, the second, updated report entitled “Review and revision of empirical critical loads of nitrogen for Europe” was published[5] published by the UNECE. The report reflects the consensus reached during the UNECE expert workshop on empirical critical deposition values for nitrogen, held in Bern in October 2021. It was drawn up by Europe’s leading nitrogen scientists and contains a new range with minimum and maximum values for each habitat in Europe, which the contracting parties will then implement in accordance with the Gothenburg Protocol.
On 2 September 2023, Minister Demir stated that she has no intention of implementing this change[6] which would mean that the existing KDWs would remain in force. However, the Flemish Parliament ratified the Gothenburg Protocol by means of the decree of 7 May 2004, which states that the protocol will be fully implemented[7]. This stance stands in stark contrast to the Dutch government’s decisiveness. The new Dutch KDWs were presented to the House of Representatives at the end of August[8] and adopted by the relevant committee at the end of September[9]. In the Netherlands, they form the basis for policy-making and the granting of permits. Furthermore, the Flemish Government’s stance is a mockery of European environmental law. The Court of Justice ruled that the best available scientific knowledge must be taken into account in the context of impact assessments[10].
Failing to adopt the new KDWs is a “misguided idea” that entails risks in terms of policy and the granting of permits. From a policy perspective, the Flemish Government’s refusal to introduce the new KDWs means that the impact of nitrogen on Flemish nature is being underestimated. As the KDWs are falling for most habitats, the effort required is proving to be greater than anticipated.
In addition, there are several issues relating to the granting of permits. For example, IMPACT and the Impact Score Tool use the KDWs in their calculations, and the data provided by these calculation tools is incorrect. These errors are reflected in the appropriate assessments, enhanced nature assessments and EIAs based on them. Furthermore, the PAS area analyses can no longer be used as reference documents. In addition, the Council of State stated in its opinion on the PAS Decree that granting permits on credit is not possible. However, by continuing to apply the existing KDWs, the Flemish Government is appropriating more nitrogen credit than it actually has. The above factors mean that the granting of permits for nitrogen-emitting activities is legally precarious.
Furthermore, the appropriate assessments must rule out any reasonable scientific doubt regarding the project’s impacts[11]. This can only be achieved by taking into account the most recent scientific knowledge, as confirmed by the aforementioned case law of the European Court of Justice. In the interests of nature and the provision of legally certain planning permission, it is crucial that the new KDWs are implemented in Flanders as soon as possible.
[1] Belgium signed the treaty on 24 June 1998 and ratified it on 25 May 2006
[2] Belgium signed the Protocol on 4 February 2000 and ratified it on 13 September 2007; the relevant provisions are Article 2 and Annex I, Section II, A of the Protocol
[3] https://www.umweltbundesamt.de/sites/default/files/medien/4038/dokumente/manual_complete_english.pdf
[4] M. HENS en J. NEIRYNCK, Kritische depositiewaarden voor stikstof voor duurzame instandhouding van Europese habitattypen in Vlaanderen, INBO 16 oktober 2013
[5] https://unece.org/media/press/372350
[6] https://www.standaard.be/cnt/dmf20230901_96683669
[7] Article 2 of the Decree of 7 May 2004 approving the Protocol to the 1979 Convention on Long-range Transboundary Air Pollution, concerning the control of acidification, eutrophication and ground-level ozone, together with its annexes, signed in Gothenburg on 30 November 1999
[8] https://www.tweedekamer.nl/kamerstukken/brieven_regering/detail?id=2023Z14497&did=2023D34903
[9] https://www.tweedekamer.nl/debat_en_vergadering/commissievergaderingen/details?id=2023A02611
[10] HvJ 9 september 2020, C‑254/19, dictum
[11] HvJ 7 november 2018, C‑293/17 en C‑294/17, punt 98, met verwijzingen naar eerdere rechtspraak