The Council of State has gradually acquired a position of power in our democracy that is even more dominant than that of the Supreme Court in the United States. Successive Council of State rulings have led a large part of the Netherlands into nitrogen lockdown and have made the country ungovernable for the time being.

That began four years ago, in the spring of 2019, with the removal of the PAS regulation, the law that previous cabinets sought to keep the nitrogen problem manageable. In 2022, the State Council also canceled the Building Exemption, an amendment to the Nature Conservation Act with which the current cabinet tried to restore some common sense to the nitrogen dossier.

assessor and judge

We expect judges to try these particular cases against the law and rule on the basis of that law, but the councils of state (the judges of the Council of State) see it as their responsibility to strike down entire laws. This is all the more remarkable since each bill has been extensively advised in advance by the same Council of State. That advice carries a lot of weight and often leads to cabinet changes and House amendments before the bill is passed.

Therefore, the Council of State must also have issued a prior opinion on the PAS scheme and the Construction Exemption, which has been duly taken into account by the cabinet and parliament. And yet, the Council of State sent both the PAS and the Construction Exemption to the trash the first time serial litigator Johan Vollenbroek made a case on it. He has a lot of the butcher rejecting his own meat.

It is true that the Advisory and Administrative Jurisdiction are two separate departments of the Council of State, but it is still strange that this body has such a big finger both in the preparation and in the application of legislation from start to finish. The anti-democratic roots of this body are also evident from the fact that the King formally presides over it.

The United States Supreme Court also has a lot of power, in part because it is allowed to test legislation against the Constitution, which Dutch judges cannot. Before such a judge is appointed, almost the entire country gets involved, including through public hearings. Friends and enemies light up the candidate’s baptismal certificate and question them about all kinds of social issues. Everyone wants to know who this man or woman is who will have such a profound influence on law and politics, literally for the rest of her life.

How transparent are those quotes?

The eighty or so Dutch state councilors, on the other hand, are gray mice who are quietly appointed by co-optation and do their job in a benevolent lull. Each verdict is accompanied by three names of state councilors who have reached this verdict, but apparently no one cares. They are supposed to be interchangeable and colorless, because they are perfectly objective.

I personally would like to know if a female state councilor who has plunged the Netherlands into this nitrogen lock is perhaps a lady who has voted D66 all her life and is a loyal member of Natuurmonumenten. Another could be a former student of Johan Vollenbroek’s, who knows? Nobody checks that. Can you get rid of that kind of ballast just by putting on a robe?

Step back for Vollenbroek

The most recent ruling of the State Council on nitrogen, the so-called interim ruling on the 25 kilometer limit, confirms my impression that state councils, just like ordinary people, like to talk about their own agenda if suits them. them.

Although the Council ruled very strictly on the PAS and the Building Exemption, to the detriment of the State, it is now right in this provisional sentence: the limit of 25 kilometers for the calculation of nitrogen in the all-powerful AERIUS computer model has found favor. with the Council. At least at this point Vollenbroek has to get back into his cage.

In concrete terms, this is the connection from the A15 to the A12 at the Ressen junction, but just like the previous two times, the calculation system here is of vital importance for countless similar matters. Cars are driving on such a new road and, if not electrically, they all emit a bit of nitrogen (NOx) in their exhaust gases. NOx flies out and can precipitate on Natura2000 sites in the area.

Nice for Tata and Schiphol

Naturally, the NOx becomes more and more diluted the farther you go. In 2021, the cabinet decided that AERIUS should stop calculating as soon as the road or other nitrogen source is more than 25 kilometers away. Therefore, it is assumed that the nitrogen from said source disappears and does not precipitate in Natura2000/areas outside that zone.

Logical, according to the Council, according to its own press release:

‘Every calculation model has a limit beyond which it can no longer make scientifically reliable statements. That means that, beyond that, it is too uncertain whether the calculation still corresponds to reality.

That’s very nice for big emitters like Tata Steel and Schiphol, whose NOx is spreading across the country. Because Tata Steel has very high stacks, and the planes also emit almost all of their NOx at a considerable height. Therefore, only a small part of their emissions tax Natura 2000 areas in the 25-kilometre zone, and outside of it, purely mathematically, nothing at all.

In response to the interlocutory ruling, Vollenbroek said that ‘therefore’ even more farmers will have to be bought out and expropriated for Natura 2000 areas in the Netherlands to reach the Nitrogen Deposition Critical Value. In Vollenbroek’s view, the hidden NOx must be offset by even more restrictions on ammonia (NH3) for farmers.

It is in itself commendable that in this interlocutory judgment the Chamber invokes the limitations that are inherent to all computer models, including the AERIUS. The predictions of such a model become increasingly inaccurate as NOx (or NH3) recedes. There is always a limit beyond which the data in a model is nothing more than computational noise. The cabinet is based on a TNO report to set that limit at 25 kilometers, and the Council accepts it, because, as it says in the press release, judgments must be based on “the best scientific knowledge.”

not consistent

It is a pity that the Council is only now considering such scientific perceptions in its trial. Because in its rulings on the PAS and the Building Exemption, the Council completely ignored such perceptions by setting the limit value for the permit requirement at an absurdly low 0.07 grams of nitrogen deposition per hectare per year.

A TNO report on that now infamous cutoff value states that AERIUS calculations that are less than 140 grams actually have no real meaning anymore, and certainly not less than 14 grams. But the Council still has to calculate AERIUS at a value two hundred times less than that 14 grams to decide on permits. Entire residential areas will not be able to be built for years because of this nonsense.

The Council has also ignored the report of the Hordijk Committee, which states unequivocally that AERIUS is absolutely not fit to calculate the nitrogen deposition of an individual company in a Natura 2000 area before granting a permit, even well above that limit value.

Now that the Council recognizes in black and white that ‘the best scientific knowledge’ should lead trials, a good lawyer should find out what this means for his previous trials.

science journalist arnold jasper He is the author of the best-seller ‘The Nitrogen Trap’. His columns appear every Saturday at Wynia’s Week.

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