Nitrogen after the December rulings: where are we now and what will 2026 bring?

Looking back

The legal highlights in the nitrogen dossier are the December 18 rulings by the Administrative Law Division of the Council of State (ABRvS) on changes to the case law on internal offsetting (ECLI:NL:RVS:2024:4923 (Rendac) and ECLI:NL:RVS:2024:4909 (Amercentrale)). This is a bit of cheating, because these rulings are just from 2024, but they are game changers and deserve a mention in this review.

The essence of the rulings is that internal offsetting is a mitigating measure. Like any other mitigating measure, internal offsetting should not yet be applied in the context of the initial 'high-level' assessment (preliminary assessment) to determine the net nitrogen deposition of a project in the new situation compared to the existing permitted situation (reference situation). Mitigating measures – and therefore also internal offsetting – are considered in the context of the thorough nature study that we refer to as the appropriate assessment. If an appropriate assessment has to be carried out, this also means that a nature permit is required. This permit is granted if the appropriate assessment shows that the new or modified project does not adversely affect the natural characteristics of the Natura 2000 areas concerned.

A new/modified project may pass the preliminary assessment with flying colors, without the need for internal offsetting or other mitigating measures, because objective data already rules out the possibility of the new/modified project having significant negative consequences. If this is not the case and internal offsetting is the project's lifeline, the appropriate assessment will examine how this mitigating measure works and whether there is any damage to the natural characteristics of the Natura 2000 area(s) concerned. In many cases, the application of internal offsetting will lead to the conclusion that this is acceptable and the nature permit could be granted.

The problem is that, as part of the appropriate assessment, it must also be examined and justified whether the mitigating measure of offsetting may be claimed (in whole or in part) for the project or whether the 'nitrogen gain' is necessary as a conservation or appropriate measure for nature restoration. This is called the additionality requirement. In the absence of demonstrably robust and ecologically sound nature restoration packages, it is often difficult to provide a sound justification. In short, the requirement for internal offsetting to be subject to a permit would be much less of an issue if the additionality requirement did not exist or if there were solid nature restoration measures in place. There is increasing criticism of the additionality requirement, or at least of its application by the ABRvS (see, among others: Een herbezinning op het additionaliteitsvereiste [A rethinking of the additionality requirement], Mr. A. Collignon and Mr. J. Tingen, BR 2025/55).

Since the new line of case law became directly applicable, this has had consequences for ongoing cases such as the appeal case concerning the nature permit for Schiphol Airport (ECLI:NL:RBDHA:2025:9782). The District Court of The Hague annulled the nature permit because the requirements for internal (and external) offsetting were not met with regard to nitrogen deposition in the Natura 2000 areas.

An important ruling in connection with the December 18 rulings is the ruling by the ABRvS (Council of State Administrative Jurisdiction Division) on the Overduin housing project in Egmond aan den Hoef (ECLI:NL:RVS:2025:2404). This housing project is being realized on former agricultural land. The central question in that case was whether internal offsetting is permitted with general rules for fertilization via a preliminary assessment. The reasoning of the Provincial Executive and the developer was that stopping fertilization at the project location is not a mitigating measure, but a factual and inevitable consequence of the intended housing construction. The ABRvS sees it differently and reasons from the project concept: this is a new project and stopping fertilization is not part of that project, but a mitigating measure. And mitigating measures may not be included in the preliminary assessment, but in the appropriate assessment – see the December 18 rulings.

In the Overduin ruling, the ABRvS further specifies that the additionality requirement only applies to that part of the reference situation that is used for internal offsetting. It is therefore not necessary to justify for the entire reference situation that this does not need to be a conservation or appropriate measure.

Preview

Developments in the nitrogen dossier depend to a large extent on the course and decisiveness of the new cabinet. Urgent action is needed to tackle and restore the nitrogen-overloaded Natura 2000 areas in order to create room for development in the longer term. In the shorter term, there may be a few partial solutions that offer scope to start or modify a project without a nature permit or to relax the permit procedure. In this context, we refer to the mathematical lower limit, the draft Order in Council on permit-free sustainability activities, and the European Grids Package.

Increase in the mathematical lower limit?

The line taken in the December 18 rulings is being applied in all kinds of projects, where it is not always easy to properly assess the additionality requirement and justify it on ecological grounds. For some projects—particularly housing construction and projects with limited nitrogen deposition—the hope of initiators in particular remains focused on the introduction of such a high mathematical lower limit for nitrogen deposition that this type of project can proceed without a nature permit. The Advisory Division of the Council of State has advised on the possibility of a mathematical lower limit for nitrogen deposition of 1 mol/hectare/year (https://www.raadvanstate.nl/adviezen/@149237/w11-25-00063-iv). This involves applying that limit in the preliminary assessment and in the appropriate assessment. The expert opinion underlying this mathematical lower limit is based on the absence of a causal link between the deposition contribution and an individual source of nitrogen emissions. However, the Council of State points to the possibility of calculating nitrogen deposition using models and the fact that deposition occurs even if it cannot be measured. Its conclusion is that the proposed lower limit is legally vulnerable.

It is now up to the (new) cabinet to work with the provinces to determine how to proceed. Ultimately, what matters is the impact of deposition on Natura 2000 areas and whether it can be established, based on the best scientific knowledge, that deposition from a project (or categories of projects) does not adversely affect the natural characteristics of an area.

Draft Order in Council on permit-free sustainability activities

This Order in Council designates certain sustainability activities with minor and temporary nitrogen emissions as exempt from nature permits, allowing them to be carried out more quickly (https://www.internetconsultatie.nl/amvbvergunningvrijeverduurzamingsactiviteiten/b1). The explanatory notes state that this Order does not create new rules, but clarifies which sustainability activities with minor and temporary nitrogen emissions do not require an appropriate assessment and are not subject to a nature permit requirement, because they are considered to be directly related to or necessary for the management of a Natura 2000 area.

Possible relaxation of rules from Brussels for sustainable energy projects

Finally, there is a glimmer of hope from Brussels for sustainable energy projects: the European Commission is preparing plans to shorten licensing procedures for sustainable energy projects and to apply environmental and nature regulations, such as nitrogen regulations, more flexibly (https://ec.europa.eu/commission/presscorner/detail/en/ip_25_2945).

In a subsequent blog, we will take a closer look at nitrogen and sustainability projects.