Dutch gov't relaxed nitrogen rules for Schiphol so it could get a nature permit: report

Minister Christianne van der Wal for Nature and Nitrogen (VVD) used a legally dodgy way to weaken the nitrogen rules for Schiphol so that it could get a nature permit in September and didn’t have to shrink. She did so against the advice of her highest nitrogen official, NRC reports based on internal documents from the Ministry of Agriculture, Nature, and Food Quality released through an appeal to the Open Government Act.

Schiphol Airport did not have a valid nature permit for years and was emitting nitrogen illegally. The Minister tolerated that, but that is only allowed on a temporary basis. The government had to quickly get Schiphol a nature permit or risk that the airport would be forced to shrink. In the worst-case scenario, that would mean cutting half the flight movements - and jobs - at the airport, the documents show.

The documents show that the Ministry of Agriculture deliberately delayed procedures to stall before getting to the point where it had to enforce the nitrogen rules around the airport. This stalling tactic came at officials’ suggestion. If the Minister could say there was a “prospect of legalization” because she was working on getting the airport permit ready, she might not have to enforce the nitrogen rules. The officials proposed to “prolong the processing of the permit application,” according to the internal documents, and to grant a permit “that entails legal risks, in order to gain time.”

The legal risks stem from nine closing-down farms that Schiphol bought early in 2023. The airport wants to compensate for nitrogen emissions from aircraft with the nitrogen space from the livestock farms that closed down. That is allowed, but only if the space is not needed to restore or maintain vulnerable nature. Nature reserves must first be healthy before purchased emission allowances can be used for a new permit, according to the PAS ruling of the Court of Justice in 2018.

The Dutch government exempted Schiphol from that requirement in June 2022. Because it is “of great importance” that Schiphol receives a new nature permit, Van der Wal decided not to check whether emission space from the farms bought by Schiphol was needed for nature restoration. Unlike other companies, Schiphol can, therefore, fully use the purchased nitrogen rights to offset its own emissions, the documents show.

The documents also show that Ministry officials realize that this approach may not hold up in court. “There is a risk that the judge whistle us back on this,” one official wrote in an email.

The Ministry of Agriculture, Nature, and Food Quality told NRC that it did not apply the nitrogen test to Schiphol “because private parties cannot be expected to take measures for nature restoration.” It did not say why other companies do have to check whether their bought nitrogen rights are needed for nature restoration.

Chris Backes, professor of environmental law at Schiphol, called the Minister’s approach “very shaky.” It is legally indefensible that fewer requirements are imposed on Schiphol than other companies, he told NRC. “It must first be demonstrated that the farms are not necessary to restore or maintain nature. It is crystal clear that this test must take place.”

Last month, the court in The Hague reprimanded the Dutch State for giving Schiphol’s interests more weight than others when making decisions about its growth. This week, locals started a mass claim procedure against the Dutch State for infringing on their rights and ignoring their interests in favor of the Amsterdam Airport. The claim amount is currently estimated at 3 billion euros.