The dubious way in which the red list of polluting farms was created could undermine the entire licensing policy, writes Dries Verhaeghe.
A reconstruction in this newspaper showed how the list of 'red' companies that must close by 2025 suddenly became shorter (DS 7 May). This happened based on a computer model that calculates the so-called impact score. The tool mapped out how and where agricultural and other companies emit nitrogen and what the consequences are for protected habitats or search areas (places where nature can develop). Based on this, a red list was created, featuring companies that emit too much nitrogen.
Because the first red list was deemed too long by opponents, the parameters were manipulated. As a result, the search areas shrank. In the first version of 2014, it covered 89,919 hectares, while the second version in 2015 only covered 77,308 hectares. That's a reduction of 14 percent. Additionally, the zones were adjusted so that fewer agricultural companies would have to close or relocate. The second version of the search areas can be consulted online. The first version cannot be found anywhere.
The cut-and-paste work stemmed from a decision by the Flemish government in 2014, which explicitly places economic criteria above natural values. A violation of the habitat directive, and yet no environmental impact report was drawn up and no public inquiry followed.
The computer model used to create the red lists, the impact score tool, is still being used to grant permits. Since 2015, the permitting policy has been based on thresholds. Companies with an impact score of less than 3 percent were guaranteed a permit until the nitrogen ruling of 2021, while those scoring more than 50 percent were never granted one. Companies with a score between 3 and 50 percent could only obtain a permit if they met certain conditions. Since the nitrogen ruling, other, stricter thresholds have been applied.
The Dutch approach
It pays to look across the border, as the Dutch are also struggling with the nitrogen crisis. With the Aerius Calculator, they have an equivalent of the Flemish impact score tool.
In 2021, the Dutch Council of State expressed its views on the nitrogen impact of the ViA15 motorway. The court ruled that the Aerius Calculator can only be used as a tool if its findings are complete, accurate, and definitive. Furthermore, it must eliminate any reasonable scientific doubt about the effects of the planned works on the surrounding protected Natura 2000 areas. According to the court, this was not the case. The permit for the motorway was not granted.
It is questionable whether the Flemish impact score tool provides complete and accurate findings that eliminate any reasonable scientific doubt. Should a Flemish judge decide that the tool does not meet the requirements, the entire permitting policy would be thrown into disarray.
Dutch nature legislation has an article that states that a permit that is in violation of the habitat directive can be revoked. This has already been applied in the context of the nitrogen crisis. Flanders does not have such an explicit provision, although the habitat directive requires it.
The bonnet must be open
The fact that the search zones have been adjusted to shorten the red list puts the permitting process in a bad light. Trust in the way permits have been granted since 2015 is gone. The Flemish government can only regain trust if it is transparent and shows that nature comes first. The differences between the first and second versions of the search zones must be discussed and the consequences for the impact score clarified. You should not be allowed to adjust the parameters of a computer model at will until you achieve the desired result. The bonnet must be open. Furthermore, Flanders must provide the possibility to revoke environmental permits that are in conflict with the Habitats Directive.
A public consultation on the new programmatic approach to nitrogen (PAS), an accounting system for nitrogen emissions, is ongoing until 17 June. This is the ideal opportunity to correct the mistakes of the past. The foundations of nitrogen policy must be strengthened. It's high time to air out the Flemish backrooms.