Legalization of Farms Without a Permit in the Netherlands: Government Assistance and Challenges

Contrary to earlier expectations, at least 259 farms without a permit do not have to count on government assistance. As a result, they now have to buy nitrogen space themselves or keep fewer animals, otherwise they risk fines. This is confirmed by the Ministry of Agriculture, Nature and Food Quality NRC.

In the Netherlands there are almost 2,500 farms that currently run their farms partly without a permit. Between 2015 and 2019, these companies were granted an exemption to expand if the nitrogen deposition in vulnerable nature areas remained below a certain value. They only had to report this expansion to the province, and not to the central government.

But when the Council of State declared the Nitrogen Approach Program (PAS) invalid in the infamous nitrogen ruling in 2019, these companies lost their exemption. Since then they have been emitting nitrogen ‘without a permit’.

Not the case

The Ministry of Agriculture has so far assessed whether nearly 600 of these farmers meet the criteria set by the State for legalization after all. This is not the case for about 40 percent of the companies.

The criteria that the government now sets to legalize the companies are the same conditions that the companies had to meet when they first reported their expansion. For example, their nitrogen emissions must remain below a certain threshold and limit value and the business expansion must have started between 2015 and 2019, and not before.

It is not immediately clear how it is possible that these farmers do not meet the criteria. The Ministry of Agriculture, which is doing everything it can to maintain good ties with the agricultural sector, insists in a response that this probably happened through no fault of the farmers. Farmers may have accidentally entered incorrect data on their first report and therefore emit more nitrogen than they thought, according to a spokesman for the ministry.

In internal documents from the Ministry of Agriculture, which were released last week after an appeal to the Open Government Act (Woo), it is taken into account that some farmers deliberately provided incorrect information at the time. For example, an official of the Ministry of Agriculture writes in a memo that it is “very difficult” to determine “who acted in good faith”. When asked, a spokesperson for the ministry could not provide any further explanation.

Read also: New setback for the government in nitrogen dossier: legalizing farms without a permit threatens to fail

The situation of unlicensed companies, so-called ‘PAS notifiers’, is one of the most complicated puzzles in the nitrogen dossier. The government has been looking for a solution for these companies for years, which are in fact operating illegally. Ministers have regularly promised that a solution will be found. EUR 250 million has been made available for this, but so far it has hardly been possible to help these companies. For example, until now there has been almost no nitrogen space available from stopped farmers to companies without a permit.

Solution is essential

It is essential that a solution is found for these farms in order not to further upset the agricultural sector. During discussions about the – now flopped – Agricultural Agreement, agricultural interest groups constantly insisted that companies without a permit should be helped by the government.

The released Woo documents, which cover the period 2020 and 2021, show that the ministry is upset with the companies that are not eligible for legalization. For example, the department investigated the possibility of granting a license to companies that do not meet the criteria for legalization. This option turned out to be legally untenable.

At the end of last year, the State Attorney again served a similar solution. Minister Christianne van der Wal (Stikstof, VVD) asked State Attorney Pels Rijcken whether the nitrogen emissions of all (farming) companies without a permit could be overlooked through a general exemption. The answer: no, waiving enforcement for all unlicensed nitrogen emitters is against the law. And circumventing this by amending the law yourself was also not an option.

All companies without a license must be legalized by the end of 2025, that is laid down by law. Is this realistic? “We are doing everything we can to achieve that,” said a spokesman for the Ministry of Agriculture. According to the ministry, the group of companies that have been checked so far does not give a good picture of the actual number of companies that will ultimately not be eligible for aid from the government.

A version of this article also appeared in the August 11, 2023 newspaper.
2023-08-10 18:31:03
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