The document discusses a European court ruling on nitrogen deposition and its implications. The ruling found that (1) grazing and fertilizer application can require an appropriate assessment, (2) recurring pre-existing activities may be exempt, and (3) advance assessments are allowed if criteria are met. However, strategic mitigation measures can only be considered if reductions are certain to prevent damage to protected sites. The court emphasized that authorized activities cannot exceed critical nutrient loads and that future benefits of measures cannot be assumed unless certain. The ruling establishes limits for addressing nitrogen deposition impacts but does not undermine the Netherlands' existing mitigation program.

1. Nitrogen deposition
Conjoined case C-293/17 and C-294/17
Background outcomes and implications
Andrew Baker FCIEEM
a.baker@bakerconsultants.co.uk
www.bakerconsultants.co.uk

2. Background - Ecology

3. The Consequences

4. The Average Accumulated Exceedance (AAE) of nutrient
nitrogen critical loads, for all habitats combined, and based on
UK 5x5 km deposition data averaged for 2012-2014.
Reproduced with kind permission of the Centre for Ecology and
Hydrology
Nitrogen deposition
kg N ha-1 year-1

5. Netherlands’ Case
Background
73% of Nature 2000 sites over loaded with N.
Greatest source is agriculture
Strategic mitigation introduced. Programme Anapak Stikstof (PAS)
Two aims, achieve FCS and enable economic development
PAS would lead to a 13.4 Kt/year reduction in N deposition.
Reductions at source
Site specific restoration measures
Creates ‘room for deposition’

6. Background cont.
Monitoring system
Simplified administration of N producing activities
System thresholds
< 0.05 mol N/ha/yr no authorisation needed
> 0.05 and 1 mol N/ha/yr no authorisation but duty to report
> 1 mol N/ha/yr permitted with reference to AA under the PAS
0.005 mol = 0.0007 Kg
1 mol = 0.014 Kg

7. Outcomes
Ruling summary
1. Grazing/application of fertilizer can be a ‘plan or project’
2. A recurring activity that predated the Directive may be exempted
3. An appropriate assessment can be done in advance as long as the
assessment meets the criteria (no reasonable scientific doubt).
4. A threshold approach is valid as long as the assessment meets the
criteria of no reasonable scientific doubt.

8. Outcomes
Ruling summary
7. The measures introduced by the PAS legislation including the
surveillance and monitoring were compatible with Article 6.2
5. Any strategic approach must be certain not to permit generic
activities that could damage a site.
6. AA cannot take into account ‘conservation measures’, ‘preventative
measures’, ’program measures’ and ‘autonomous’ measures if the
expected benefits of those measures are not certain at the time of the
assessment.

9. Warning notes
‘a qualitative estimate of exposure to one or more pollutants below which
significant harmful effects on specified sensitive elements of the environment do
not occur according to present knowledge’
Current exceedance of critical loads.
Para 62 of the Opinion. ….’it seems difficult, if not impossible, to accept values
that are higher than the critical loads. “
Para 103 of the Judgement ‘ where the conservation status of a natural habitat
is unfavourable, the possibility of authorising activities which may subsequently
affect the ecological situation of the sites concerned seems necessarily limited.’
my emphasis

10. “Beyond reasonable scientific doubt”

11. Strategic ‘mitigation’ measures
‘conservation measures’ measures required by Article 6.1
‘preventative measures’ avoidance of deterioration Article 6.2
’programme measures’ measures which are part of the PAS
‘autonomous measures’ other measures not falling into the above e.g. falls in
background levels unrelated to agriculture.
Conservation and preventative measures can only be taken into account once
they are actually implemented (para 123). Nor can such measure be invoked in
order to grant permission for a project that would have an adverse effect upon a
site (para 124).
Distinction must be made between measures intended to avoid or reduce
adverse effects of a plan (mitigation) and those that are required under Article 6.4
(compensation). (para 125). The latter cannot be taken into account in an AA.
AA cannot take into account any future benefits of measures unless those
benefits are certain (para 126).

12. Strategic mitigation measures
Para 98 of the Opinion
‘– measures to reduce nitrogen deposition from other sources,
– restoration measures to improve nitrogen-sensitive habitat types in the sites
concerned, and
– the autonomous decrease in nitrogen emissions
can establish the compatibility of additional nitrogen deposition in protected sites
with Article 6(3) of the Habitats Directive only if it is already definitively
established at the date of the authorisation that the total load on the site from
nitrogen deposition falls below the threshold for the integrity of the site being
adversely affected. On the other hand, it is not sufficient, for the purposes of
approval of additional nitrogen deposition, if deposition declines overall, but the
land in question is still overloaded with nitrogen. Mere forecasts regarding the
future effects of those measures and the expected decrease in nitrogen
emissions may not be taken into account in the decision on the approval of
additional nitrogen deposition.’

13. Comment
‘It is not sufficient to reduce this [nitrogen] by a certain amount, such as 1 kg
N/ha/yr, in order to permit the same degree of additional deposition if the
protected habitat as a whole is still overloaded with nitrogen.’
The Netherlands has set a precedent for addressing the ecological effects of
nitrogen deposition.
The CJEU delivered and expedient judgement which tried not to undermine
the PAS while at the same time addressing shortcomings.
Future strategic mitigation schemes will be measured against the judgement
Nitrogen deposition is now firmly on the agenda.

14. Thank You
Andrew Baker BSc FIEEM
Baker Consultants Ltd
West Platform, Cromford Station
Cromford Bridge
Matlock
Derbyshire
DE4 5JJ
07590 122969
a.baker@bakerconsultants.co.uk
www.bakerconsultants.co.uk